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W-02(NCvC)(W)-2155-11/2021

PERAYU DAVID CHOONG JIN CHAI RESPONDEN 1. ) TAN SRI DATO' SERI DR M MAHADEVAN A/L MAHALINGAM 2. ) Letchumanan A/l S. Rajoo

Moneylenders Act 1951 (MLA) - gold investments - inducements & misrepresentation - Sale of Gold Agreements (SOGA's) - disguised transactions of money lending - void ab initio - admission of indebtedness - cash loans - authenticity & credibility - illegal transaction

28/11/2023

YA Datuk Hajah Azizah binti Haji NawawiKorumYA Datuk Hanipah Binti FarikullahYA Datuk Hajah Azizah binti Haji NawawiYA Datuk S. Nantha Balan A/L E.S. Moorthy

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=e818d5b1-a078-4878-9bf5-ba9f0c13b14c&Inline=true

1 CIVIL APPEAL NO. W-02(NCvC)(W)-2021-10/2021 BETWEEN LEE KUANG GEN … APPELLANT AND TAN SRI DATO' SERI DR M MAHADEVAN A/L MAHALINGAM … RESPONDENT CIVIL APPEAL NO. W-02(NCvC)(W)-2155-11/2021 BETWEEN DAVID CHOONG JIN CHAI … APPELLANT AND 1. TAN SRI DATO' SERI DR M MAHADEVAN A/L MAHALINGAM 2. LETCHUMANAN A/L S. RAJOO … RESPONDENTS CIVIL APPEAL NO. W-02(NCvC)(W)-2156-11/2021 BETWEEN DAVID CHOONG JIN CHAI … APPELLANT AND TAN SRI DATO' SERI DR M MAHADEVAN A/L MAHALINGAM … RESPONDENT 28/11/2023 16:33:02 W-02(NCvC)(W)-2155-11/2021 Kand. 103 S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 CORAM HANIPAH BINTI FARIKULLAH, JCA AZIZAH BINTI NAWAWI, JCA S. NANTHA BALAN, JCA JUDGMENT Introduction [1] There are 3 (three) appeals before us arising from two (2) separate Suits. [2] In Civil Suit No: 22NCVC-479-09/2015 (“Suit 2015”), David Choong (“DC”) had sued Tan Sri Dato' Seri Dr M Mahadevan a/I Mahalingam (“TSM”) and 9 Others seeking, inter alia, a declaration that TSM had illegally loaned monies to DC in ten (10) transactions which are unlawful and unenforceable under the Moneylenders Act 1951 (“MLA”). [3] In Civil Suit No: 22NCVC-95-02/2017 (“Suit 2017”), TSM had sued DC and Lee Kuang Gen (“LKG”) for collusion by way of inducement, misrepresentation and false promises of handsome returns of gold investments, and causing TSM to enter into the Sale of Gold Agreements (“SOGAs”) with DC amounting to RM10,493,500.00. TSM’s claim is for the return of the said sum of RM10,493,500.00. S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 [4] DC filed a Counterclaim in Suit 2017 seeking a declaration that all of TSM's 10 loans to DC are in contravention of the MLA and are therefore illegal and/or void ab initio, an injunction to restrain TSM and his servants and agents from harassing, assaulting, threatening or committing any act to injure DC and his businesses and for general damages. [5] After a full trial, the learned Judge has allowed Suit 2017. LKG had filed an appeal in Appeal No. W-02(NCvC)(W)- 2021-10/2021 (“Appeal 2021”) and Appeal No. W- 02(NCvC)(W)-2155-11/2021 (“Appeal 2155”) was filed by DC. [6] The learned Judge had also dismissed Suit 2015, and this is the subject matter of Appeal No. W-02(NCvC)(W)-2156- 11/2021 (“Appeal 2156”) by DC. The Salient Facts [7] In or about July 2013, LKG had introduced DC to TSM for the sale of gold bars by TSM. In respect of these transactions, the gold bars were sold and the proceeds of the sale were deposited into the bank account of the TSM. [8] Between November 2013 to January 2015, TSM had entered into the following SOGAs with DC to sell/invest in gold ingots to the value of RM10,993,500.00. TSM’s position is that he S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 had transferred the gold to the said value to DC based on the following agreements: (i) SOGA 1 dated 17 November 2013; (ii) SOGA 2 dated 25 June 2014; (iii) SOGA 3 dated 25 June 2014; and (iv) SOGA 4 dated 9 January 2015. [9] The said SOGAs are the subject matter of both suits. [10] Parties have also signed four (4) documents, titled “Letter Verifying and Confirming Transfer of Gold Bullions” (Exhibits D5, D44 and D45). These documents are to show that the gold bullion was transferred to DC, who is described as the purchaser, from TSM, who is described as the vendor. [11] In early 2015, TSM had requested that DC return the sum of RM2,000,000.00 and USD2,000,000.00. [12] By a letter dated 20.4.2015, TSM requested DC to pay the sum of RM10,043,500.00. DC did not make the payment. [13] On 2 September 2015, DC filed Suit 2015. [14] On 21 February 2017, TSM Suit 2017. S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 Decision of the High Court [15] The core issue before the learned High Court Judge was whether the SOGAs entered between DC and TSM are for the sale of the gold bullions or disguised transactions of money lending. [16] Before the learned Judge, DC took the position that the loan agreements were disguised as the SOGA, but were essentially money lending arrangements, where the loan was portrayed as an investment and the interests as dividends. On the contrary, TSM contends that the transactions between him and DC did not involve money lending transactions but investments of gold and are therefore not prohibited by the MLA. [17] Having considered the evidence, the learned Judge made a finding that there was a clear admission of indebtedness towards a settlement by DC to TSM. The undisputed sequence of events culminating in the sale of the gold are consistent with the fact that the gold transactions are actually agreements for the sale of gold. The learned Judge also held that the evidence clearly shows that both DC and LKG were from the outset, and were at all material times, fully aware that the agreements were for the sale of gold. [18] The learned Judge also made a finding that DC had failed to prove on the balance of probabilities that TSM had carried on S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 a moneylending business. As such, the learned Judge held that sections 5(1) and 15 of the MLA do not apply to the gold transactions under the SOGAs. [19] As against LKG, the learned Judge held that the indemnity letter dated 2 July 2015 was signed by LKG voluntarily and that the terms of the indemnity letter are valid and enforceable against him. In the said indemnity letter, LKG had explicitly committed to indemnify TSM “completely against all repercussions and liabilities, regardless of their nature, directly stemming from or connected to the mentioned investment", that is, the gold investment. Our Decision [20] The only issue before us is whether the transacted sum of RM10,043,500.00 was pursuant to the SOGAs or was it a disguise for money lending and is therefore subject to the provisions of the MLA. Whether the SOGAs were genuine agreements for the sale of the gold SOGA 1 dated 17 November 2014 [21] The terms in the SOGAs, between TSM as the vendor, and DC as the purchaser for the sale of the gold, inter alia, are as follows (see SOGA 1 dated 17 November 2014): S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 “SALE OF GOLD An Agreement made this 17th November 2014 Between M Mahadevan a/l Mahalingam (I/C No. 290909-14-5467) (hereinafter called the Vendor) on the one part and David Choong Jin Chai (I/C No. 831111-14-6369) of No. 27, Jalan Setiabakti 8, Bukit Damansara, 50490 Kuala Lumpur (hereinafter called the Purchaser) on the other part. WHEREAS A. The Vendor is the proprietor/owner of gold products of 99.99% which shall be ninety nine point ninety nine percent (99.99%) gold purity (the “said Gold”). B. The Vendor is desirous of selling the said Gold to the Purchaser and the Purchaser has agreed to purchase the same on terms and conditions hereinafter set forth. NOW IT IS HEREBY AGREED as follows: - 1. In consideration of the sum of Ringgit Malaysia One Only (RM1.00) now paid by the Purchaser to the Vendor, the receipt whereof the Vendor hereby acknowledges, the Vendor hereby agrees to sell the said Gold at a below table (hereinafter referred to as the Purchase Price). 2. The balance of the Purchase Price as per below table shall be payable by the Purchaser to the Vendor on or before 5 Dec 2014 (Completion Date) 3. Tranche Period Maturity Gold Gold Price Amount invest Dividend 1. 17/5/2014 17/6/2014 1kg 130,000 975 2. 27/5/2014 27/6/2014 7kg 945,000 7087.5 3. 20/5/2014 28/6/2014 3kg 420,000 3150 S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 Tranche Period Maturity Gold Gold Price Amount invest Dividend 4. 2/5/2014 2/6/2014 3kg 420,000 3150 5. 1/5/2014 1/6/2014 1kg 130,000 975 6. 5/5/2014 5/6/2014 1.5kg 202,500 1518.75 4. Upon payment of the balance of the Purchase Price by the Purchaser to the Vendor within the stipulated period by cash or bankers draft, the Vendor shall deliver the said Gold to the Purchaser. 5. ……” [22] TSM had explained that the sale of gold transactions under the SOGAs to be as follows: (i) the gold transaction is carried out whereby DC takes possession of the gold belonging to TSM and enters into the SOGA for the purchase of the gold; (ii) the purchase price for the gold to be paid by DC to TSM is fixed at the date of the agreement, but the purchase price is to be paid at a future date; and (iii) pending the payment of the full purchase price, DC is to pay a fixed sum calculated on the purchase price and this fixed sum is paid to TSM on a monthly basis until the completion of the sale, when the full purchase price of the gold is paid to TSM on the date stated in the agreement. S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 [23] Therefore, from the evidence in chief of TSM, DC is supposed to pay for the gold transactions under SOGA 1 to TSM at a fixed sum on a monthly basis until the full purchase price is paid. [24] However, learned counsel for the Appellant/DC took the position that Tranche 1 to Tranche 6 of SOGA 1 are not investments, but are cash loans given by TSM to DC whilst the dividends are actually interests over the said loans which DC had to pay. [25] DC had submitted that from August 2013 to September 2013, TSM had continuously loaned cash monies to DC on 6 occasions totalling RM2,247,500.00 with interest charged for each and paid by DC to TSM. These cash loans are as follows: (i) On 17.9.2013, TSM remitted from his Ambank Account into DC's MBB Account No: 514730104186 the principal cash sum of RM130,000.00 as a cash loan (see exhibit D17/encl 12/pdf pg 157) (cash loan 1); (ii) On 27.8.2013, TSM remitted from his Ambank Account into DC's MBB Account No: 514721053886 the principal cash sum of RM945,000.00 as a loan (see Exhibit D-18/encl 12/pdf pg 155) (cash loan 2); S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 (iii) On 28.8.2013, TSM remitted from his Ambank Account into DC's MBB Account No: 514721053886 the principal cash sum of RM420,000.00 as a loan (cash loan 3); (iv) On 30.8.2013, TSM remitted from his Ambank Account into DC's MBB Account No: 514721053886 the principal cash sum of RM420,000.00 as a loan (cash loan 4); (v) On 30.9.2013, TSM remitted from his Ambank Account into DC's MBB Account No: 514730104186 the principal sum of RM130,000.00 as a loan(see Exhibit D19/encl 12/pdf pg 158) (cash loan 5); and (vi) On 5.9.2013, TSM remitted from his Ambank Account into DC's MBB Account No: 514730104186 the principal sum of RM202,500.00 as a loan (see Exhibit D20/encl 12/pdf pg 156) (cash loan 6). [26] The total six (6) principal cash loans stated above amount to RM2,247,500.00, broken down as follows: 1. Cash Loan 1 = RM 130,000.00 2. Cash Loan 2 = RM 945,000.00 3. Cash Loan 3 = RM 420,000.00 4. Cash Loan 4 = RM 420,000.00 5. Cash Loan 5 = RM 130,000.00 6. Cash Loan 6 = RM 2022500.00 RM2,247,500.00 S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 [27] It is to be noted that the Cash Loan 1 to 6, corresponds with the amount invested in Tranche 1 to 6 of SOGA 1. [28] We are of the considered opinion and we agree with the Appellant / DC that the above Cash Loans 1 to 6, which are Tranche 1 to 6 of SOGA 1, are transfers of cash from TSM to DC, and these are supported by the bank documents, in the form of Remittance Form, TSM Bank Statement and DC’s Bank Statements. [29] For Cash Loan 1, the said loan is supported by the following documents to show the transaction of RM130,000.00 from TSM to DC: (i) TSM's Ambank TT Remittance Application Form (dated 17.9.2013). This form is evidence of the transfer of RM130,000.00 from TSM to DC. This form was signed by TSM as the Applicant to transfer the said sum to the beneficiary, DC; (ii) TSM's Ambank 2013 Statement (showing 17.9.2013 Debit entry of RM130,000.00). TSM’s 2013 bank statement from Ambank clearly records a debit entry of RM130,000.00 on 17 September 2013, to correspond to the transfer to DC’s account; and S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 (iii) DC Maybank 2013 Statement (showing 17.9.2013 credit entry of RM130,000.00). DC’s September 2013 bank statement from Maybank has confirmed the credit entry of RM130,000.00 on 17 September 2013, which confirmed the transaction. This credit entry in the Maybank statement confirms that the funds were successfully received by DC from TSM. [30] For Cash Loan 2, TSM's Ambank TT Remittance Application Form (dated 27.8.2013) evidences a transfer of RM945,004.00 (including a RM4.00 fee) from TSM to DC, signed by TSM as the transfer applicant. This transfer is supported by TSM's Ambank 2013 Statement, which shows a Debit entry of RM945,000.00 on 27 August 2013, matching the transfer to DC's account. Added to that, DC's Maybank 2013 Statement confirms the RM945,000.00 credit entry on 27 August 2013, verifying the successful receipt of funds from TSM. [31] For Cash Loan 3, TSM's Ambank TT Remittance Application Form (dated 28.8.2013) evidences a transfer of RM420,004.00 (including a RM4.00 fee) from TSM to DC, signed by TSM as the transfer applicant. This transfer is supported by TSM's Ambank 2013 Statement, which shows a Debit entry of RM420,000.00 on 28 August 2013, matching the transfer to DC's account. Added to that, DC's Maybank 2013 Statement confirms the RM420,000.00 credit entry on S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 28 August 2013, verifying the successful receipt of funds from TSM. [32] For Cash Loan 4, TSM's Ambank TT Remittance Application Form (dated 30.8.2013) evidences a transfer of RM420,004.00 (including a RM4.00 fee) from TSM to DC, signed by TSM as the transfer applicant. This transfer is supported by TSM's Ambank 2013 Statement, which shows a Debit entry of RM420,000.00 on 30 August 2013, matching the transfer to DC's account. Added to that, DC's Maybank 2013 Statement confirms the RM420,000.00 credit entry on 30 August 2013, verifying the successful receipt of funds from TSM. [33] For Cash Loan 5, TSM's Ambank TT Remittance Application Form (dated 30.9.2013) evidences a transfer of RM130,004.00 (including a RM4.00 fee) from TSM to DC, signed by TSM as the transfer applicant. This transfer is supported by TSM's Ambank 2013 Statement, which shows a Debit entry of RM130,000.00 on 30 September 2013, matching the transfer to DC's account. Added to that, DC's Maybank 2013 Statement confirms the RM130,000.00 credit entry on 30 September 2013, verifying the successful receipt of funds from TSM. [34] For Cash Loan 6, TSM's Ambank TT Remittance Application Form (dated 5.9.2013) evidences a transfer of RM202,504.00 (including a RM4.00 fee) from TSM to DC, signed by TSM as S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 the transfer applicant. This transfer is supported by TSM's Ambank 2013 Statement, which shows a Debit entry of RM202,500.00 on 5 September 2013, matching the transfer to DC's account. Added to that, DC's Maybank 2013 Statement confirms the RM202,500.00 credit entry on 5 September 2013, verifying the successful receipt of funds from TSM. [35] In summary, from the combination of these documents, TSM's Ambank TT Remittance Application Form, TSM's Ambank 2013 Statement and DC’s Maybank 2013 Statement, have provided comprehensive evidence of the six (6) cash loan transactions, remitted by TSM to DC. [36] The flow of the money, the six (6) cash loan transactions, is not from DC to TSM to pay for the gold, but are cash transaction remitted by TSM to DC as captured by the bank documents. [37] In other words, we find that there is inconsistency in the financial transactions and their alignment with the purported nature of the agreement. If TSM is indeed the seller of gold to DC, the conventional business practice would dictate that the buyer, DC, should be the one transferring funds to the seller, TSM. The reversal of this financial flow in this case raises doubts on the authenticity and credibility of TSM’s claim that these are the claimed "sale of gold" transactions. S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 [38] Having considered the Appeal Record, we find that TSM's testimony under cross-examination during the trial shows that that he had failed to provide an explanation as to why he transferred money to DC and his general answer was that, LKG, his fund manager would be able to explain: “DH: I put to you that, these 4 payments were made to your account and 2 payments were made on 26th July 2013 for the sum of RM900,000.00 as well as RM30,000.00 respectively on this date. And also on 29th July 2013, both funds equal to the balance part payment for 2208, 2 million and 208 thousands just for the record. My lady. I put that. PW1: Yang Arif. PW1: Yang Arif, so many payments were also made. Yang Arif. This is only isolated. I can’t tell. Only my fund manager will be able to tell. He’s the one. I wonder who pick this thing. These are my personal accounts. I didn’t mark on them. DH: Tan Sri, we are not going on about this anymore. We will talk to your fund manager when he comes. PW1: Yes, he will be able to answer, the other payments are there. I don’t know, so many why are these. Are these only a pickup. I don’t know. So many payments are there. I didn’t. Its my own account. How did it go. My fund manager would be able to tell. Who pick it up? That is not from me. I didn’t get this account. Yang Arif, I didn’t point out this one..” (RR/encl 6/pg 75-76) …. S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 PW1: … I can’t see other payments. Everything, who gave this statement. I wouldn’t know Yang Arif. The only man who can answer is my fund manager, fund manager. There are only two isolated items here that I can see. I won’t know. Only he would be able to answer. He is the man who manages. He takes the gold and he pays. No money he doesn’t get the gold. That’s it. That’s all I know. He does it …. (RR/encl 6/pg 78-79) [39] Added to that, TSM had given evidence that his fund manager, LKG, would know the details. In his evidence LKG had confirmed that he had prepared the six (6) Ambank TT Remittance Form based on TSM’s instruction to transfer the six (6) principal cash loan sums to DC. LKG had affirmed that because TSM had signed the TT Remittance Forms, TSM knew that these six (6) principals cash sums were in fact cash money loans to DC with interest, and they were not for sale of gold bars. Under cross-examination, LKG gave the following evidence: “DH: Alright now after, you would agree with me that after the first 2 real sale of gold transactions. Then what happen? Would you agree with me that Tan Sri then over a period on 17th October 2013 to 5th November 2013, I am looking at page 82, the first table. DW3: Yes Yang Arif. DH: Alright. Would you agree with me that Tan Sri had lent cash money to DC? For that period in the table. 6 loans. Over that period to David Choong. DW3: Yes Yang Arif. S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 DH: Now, and you would agree with me that the loans that was lent, the actual money were under the amount invest column. There is a column there…. There are figures there, right as you look there are 6 figures Tranche 1, 2, 3, 4, 5, 6 there’s correspondingly the amounts invested are for the first loan of RM130,000.00, second loan RM945,000.00, third loan RM420,000.00, fourth loan RM20,000.00, fifth loan RM130,000.00 and sixth RM202,500.00 right? DW3: Yes Yang Arif. DH: So you would agree with me that these were actually the cash loan amounts that Tan Sri had loan to David Choong? DW3: Yes Yang Arif. DH: Now the last column under the label dividend, what was that? DW3: That was the interest that David Choong have to pay Tan Sri every month Yang Arif. (see RR/encl 11/pg 16-18) ….. DW3: ….. As you can see that in Tranche 1 that under dividend, the interest paid was RM975.00 have to be times 12 months and is equivalent to 9% for each transaction the loans that have been given. …. DH: Alright and there are figures here. Was there any real gold that was transacted in regards to the 6 transactions in these documents? S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 DW3: No Yang Arif.” (see RR/encl 11/pg 16-17) [40] On the issue of the ‘dividends’ in SOGA 1, DC took the position that these are not real dividends, but are interests charged on Cash Loan 1 to 6, by TSM at the rate of 9%. This was supported by LKG, who had also confirmed that the six (6) Dividends stated in SOGA-1 were in fact interest payable for the six (6) cash loans, as can be seen from the evidence above. [41] The monthly interests which tally with the figures on dividends in SOGA 1 are as follows: Loan Amount 9% p.a Monthly payment Cash loan 1 RM130,000.00 RM11,700.00 RM975.00 Cash loan 2 RM945,000.00 RM85,050.00 RM7,087.50 Cash loan 3 RM420,000.00 RM37,800.00 RM3,150.00 Cash loan 4 RM420,000.00 RM37,800.00 RM3,150.00 Cash loan 5 RM130,000.00 RM11,700.00 RM975.00 Cash loan 6 RM202,500.00 RM18,225.00 RM1,518.75 [42] DC had also given evidence that he had paid to TSM monthly interest at a rate of 9% p.a. for each transaction, totalling RM300,908.25. These payments are evidenced by the bank statements of DC’s account. S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 [43] Since Tranche 1 to Tranche 6 of SOGA 1 are cash remitted by TSM to DC, they are cash loans given by TSM to DC, disguised as sale of gold transactions. [44] We are of the considered opinion that the learned Judge was plainly wrong in her finding that SOGA 1 is purely a sale and purchase of gold. The learned Judge failed to consider the banking documents which show the remittance of cash from TSM to DC, which corresponds with the ‘Amount Invest’ in SOGA 1 and the ‘dividends’ were actually interest of 9% pa on the respective cash loans. [45] It is trite law that the Court does not look at labels attached to a document but will examine the contents of the same in its particular circumstances to determine the true relationship between the parties and the type of transaction that they have entered into. [46] In Goh Gin Chye & Anor v. Peck Teck Tian Realty Pte Ltd & Anor [1987] 1 LNS 33, the Singapore Court of Appeal had applied the English case of Addiscombe Garden Estates Ltd and Anor v Crabbe and Ors [1958] 1 QB 513 where the plaintiffs had expressly by a written agreement purported to "license and authorise" the defendants to use and enjoy certain premises and amenities therein for a term of two years in consideration of a payment of certain fees. The Court of Appeal in England, upon a detailed examination of the agreement, came to the conclusion that a tenancy was S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 created, notwithstanding that the document was described by the parties as a licence and the draftsman had "studiously and successfully avoided" the use either of the word "landlord" or the word "tenant" throughout the document. Jenkins L.J. said at p. 522: "As to the first question? whether the so-called licence of April 12, 1954, in fact amounted to a tenancy agreement under which the premises were let to the trustees? the principles applicable in resolving a question of this sort are, I apprehend, these. It does not necessarily follow that a document described as a licence is, merely on that account, to be regarded as amounting only to a licence in law. The whole of the document must be looked at; and if, after it has been examined, the right conclusion appears to be that, whatever label may have been attached to it, it in fact conferred and imposed on the grantee in substance the rights and obligations of a tenant, and on the grantor in substance the rights and obligations of a landlord, then it must be given the appropriate effect, that is to say, it must be treated as a tenancy agreement as distinct from a mere licence." And he later said, at p. 528: "The present case, of course, has nothing to do with the Rent Acts, but the important statement of principle is that the relationship is determined by the law, and not by the label which parties choose to put on it, and that it is not S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 necessary to go so far as to find the document a sham. It is simply a matter of ascertaining the true relationship of the parties." (emphasis added) [47] Based on the banking documents that TSM had transferred cash loans to DC rather than gold bars, it can be concluded that SOGA 1 neither substantiates nor serves as evidence for the existence of six gold sale transactions. Consequently, we find that SOGA 1 is a sham document and does not represent a valid sale and purchase of gold. [48] The next issue is whether the six (6) cash loans are caught by the MLA. The purpose of the MLA is to regulate the business of moneylending and not to regulate all kinds of moneylending transactions. Subsections 5(1) and (2) of the MLA prohibit unlicensed moneylending business and certain acts related thereto. The MLA does not prohibit any moneylending transaction with interest unless the lender has carried on an unlicensed moneylending business. In Ngui Mui Khin & Anor v. Gillespie Bros & Co Ltd [1979] 1 LNS 60; [1980] 2 MLJ 9, the Federal Court held as follows: “At the outset we wish to observe that the Moneylenders Ordinance, 1951 does not apply to moneylending but only to Moneylenders. It does not make every moneylending transaction illegal and unenforceable. It is only a moneylending transaction of a moneylender which is the subject-matter of the Ordinance and must comply with its S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 provisions on pain of being declared illegal and unenforceable by the court. We make this simple and obvious observation because it was canvassed very strongly before us by counsel for the appellants that since the transactions between the respondents and the client are moneylending transactions, the respondents must be a moneylender and the guarantee which the appellants signed is therefore unenforceable. This submission overlooks the fact that the party to a transaction who thereby becomes the creditor may or may not be a moneylender. He is a moneylender if within the meaning of section 2 of the Ordinance he can be said to be a person "whose business is that of moneylending". To prove business requires some sort of continuity or system or repetition of similar transactions. (Chow Yoong Hong v. Choong Fah Rubber Manufactory [1960] 1 LNS 17; [1962] AC 209 at 218: [1962] MLJ 74).” (emphasis added) [49] In Ngui Mui Khin & Anor v. Gillespie Bros & Co Ltd, the Court held that to prove money lending within the ambit of the MLA, ‘requires some sort of continuity or system or repetition of similar transactions’. However, the new provision in section 10OA MLA (which came into force on 15 April 2011 vide Act A1390) provides that in any proceedings against any person where it is alleged that such person is a moneylender, proof of a single loan at interest made by such person shall raise a rebuttable presumption that such person is carrying on the business of moneylending. Section 10OA reads as follows: S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 “Presumption as to the business of moneylending 10OA Where in any proceedings against any person, it is alleged that such person is a moneylender, the proof of a single loan at interest made by such person shall raise a presumption that such person is carrying on the business of moneylending, until the contrary is proved.” (emphasis added) [50] Section 10OA is a rebuttable presumption, a legal principle that presumes something to be true unless proven otherwise. Section 10OA of the MLA imposed on TSM the legal burden of proving, on the balance of probabilities, that he was not carrying on the business of "moneylending" when he lent the six (6) cash loans, which carried interests, to DC. The presumption is that TSM was carrying on the business of moneylending, "until the contrary is proved". [51] In the present appeal, we are of the considered opinion that a rebuttable presumption that TSM had carried on a moneylending business by granting six (6) cash loans to DC without a moneylender's license has arisen pursuant to s. 10OA of the MLA. The rebuttable presumption arises because there are undisputed contemporaneous documents in the form of the TSM remittance forms, TSM bank statements and DC bank statements which proved that DC had obtained the loans and paid interest at 9% p.a. to TSM. S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 [52] To successfully rebut the presumption under s. 10OA of the MLA, TSM must prove on the balance of probabilities that by entering into the six (6) loan transactions with DC, he was not engaging in an act of "lending of money at interest, with or without security, by a moneylender to a borrower", within the meaning of "moneylending" by s. 2 of the MLA. Having considered the decision of the learned Judge, we find that she had failed to consider the application of section 10OA of the MLA. On our part, and having considered the evidence, we agree with DC that TSM has failed to rebut the presumption under section 10OA MLA. [53] Therefore, we are of the considered opinion that DC had discharged the legal and evidential burden under s. 101(1), (2) and 102 of the Evidence Act to prove on the balance of probabilities that TSM had carried on a moneylending business contrary to subsection 5(1) of the MLA by making the six (6) cash loans subject to the payment of interests, to DC and the same was camouflaged as a sale of gold bars by way of SOGA 1. [54] In view of the fact that the six (6) cash loans, which are subject to the payment of interests, granted by the TSM to DC are in contravention of subsection 5(1) of the MLA, the said loans are void and unenforceable under section 15 of the MLA, which provides: S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 “Contract by unlicensed moneylender unenforceable 15. No moneylending agreement in respect of money lent after the coming into force of [MA] by an unlicensed moneylender shall be enforceable." [55] Added to that, when an agreement is found to be illegal, it is also void under s. 24 of the Contracts Act 1950, which provides that an agreement is void if the object or consideration of the agreement is unlawful. The section reads as follows: “What considerations and objects are lawful, and what not 24. The consideration or object of an agreement is lawful unless: (a) it is forbidden by law; (b) it is of such a nature that, if permitted, it would defeat any law; (c) it is fraudulent; (d) it involves or implies injury to the person or property of another; or S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 (e) the court regards it as immoral, or opposed to public policy. In each of the above cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.” [56] The six (6) cash loans subject to the payment of interests in the present appeal would be caught by paragraphs (a), (b) and (e) of section 24 of the Contracts Act. The court will not render assistance to TSM in seeking to enforce such transactions and recover the monies as the remedy of restitution under section 66 of the Contracts Act will not avail to him. SOGA 2 dated 25 June 2014 Tranche Period Maturity Gold Gold Price Amount invest Dividend 1. 17/5/2014 17/6/2014 1kg 130,000 975 2. 27/5/2014 27/6/2014 7kg 945,000 7087.5 3. 20/5/2014 28/6/2014 3kg 420,000 3150 4. 2/5/2014 2/6/2014 3kg 420,000 3150 5. 1/5/2014 1/6/2014 1kg 130,000 975 6. 5/5/2014 5/6/2014 1.5kg 202,500 1518.75 7. 5/5/2014 5/6/2014 17.375kg 2,405,000 20,041 8. 16/6/2014 16/7/2014 14kg loan 14,000 9. 26/6/2014 27/7/2014 20kg loan 18,000 S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 [57] The Table in SOGA 1 was used in SOGA 2, SOGA 3 and SOGA 4. In his evidence, LKG stated that after the parties had entered SOGA 1, TSM had instructed LKG to re-record the said loans in the subsequent SOGA 2, SOGA 3 and SOGA 4. Therefore, as can be seen from SOGA 2, SOGA 3 and SOGA 4, the same Tranche 1 to 6 or Cash Loans 1 to 6, are all recorded therein. [58] In respect of SOGA 2, all the six (6) tranches/loans described in SOGA 1 are recorded with changes to the dates in the 'period' and 'maturity' columns. In respect of these six (6) tranches, we are of the considered opinion they are the same as in SOGA 1, and therefore they are cash loans from TSM to DC with interest at 9% pa. Based on the reasons enumerated above, we find that these six (6) cash loans are in contravention of subsection 5(1) of the MLA and are therefore void under section 15 of the MLA. [59] In respect of Tranche 7, 8 and 9 of SOGA 2, DC submitted as follows: Tranche 7 [60] On 6 March 2014, TSM extended a cash loan of RM2,405,000.00 to DC by transferring 17.375g of physical Gold Bars, which were then converted into a fixed cash loan. This loan was subject to a monthly interest payment of RM20,041.00 by DC to TSM (at 10% pa) ("Monetized Loan 7"). S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 [61] Between 8 April 2013 and 11 March 2015, DC made a total interest payment of RM240,492.00 (RM20,041.00 x 12 months) to TSM. Tranche 8 [62] On 18 November 2013, TSM transferred 14 kg to DC (8kg gold bars plus the balance 6kg) subject to monthly interest of RM14,000.00. Between 16 February 2013 to 28 December 2014, DC has paid to TSM the total interest of RM182,000.00 (RM14,000.00 x 13 months) on the loan of 14kg Gold Bars. [63] On 16 December 2014, TSM monetized and converted the loan of 14kg Gold Bars into a fixed cash ringgit loan of RM1,806,000.00, subject to monthly interest of RM15,050.00 (at 10% pa). Between 21 January 2015 to 18 March 2015, DC had paid to TSM the total interest of RM45,150.00 (RM15,050.00 x 3 months) on the monetised loan of RM 1,806,000.00. (Monetized Loan 8) Tranche 9 [64] On 26 June 2014, TSM loaned to DC 20kg physical gold bars subject to monthly interest of RM18,000.00 (20kg Gold Bars). Between 5 August 2014 to 9 January 2014, DC has paid to TSM the total interest of RM108,000.00 (RM18,000.00 x 6 months) on the loan of 20kg Gold Bars. [65] On 26 December 2014, TSM had monetized and converted the 20kg Gold Bars Loan into a fixed Ringgit cash loan of RM2,660,000.00 S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 subject to payment of monthly interest of RM20,166.00 (10% p.a.). From 6 February 2015 to 30 May 2015, DC had paid to TSM the total interest of RM60,498.00 (RM20,166.00 x 3 months) on the monetised loan ("Monetised Loan 9"). [66] For Tranche 7, 8 and 9, there was a transfer of gold from TSM to DC, but these were subsequently monetized into cash loans with monthly repayments subject to 10% interest. DC gave evidence that he has paid to TSM monthly interest at a rate of 9-10% p.a. for each transaction, totalling to RM636,140.00, and summarised as follows: (i) Interest paid for Monetised Loan 7 = RM240,492.00 (ii) Interest paid for Monetised Loan 8 = RM227,150.00 (iii) Interest paid for Monetised Loan 9 = RM168,498.00 [67] We are of the considered opinion that DC had established the monthly interest payment to TSM for each Monetised Loans 7 to 9, as can be seen from DC's bank statements. [68] DC’s evidence was supported by TSM’s fund manager, LKG who gave the following evidence: “DH: Alright, can you explain Tranche 7, 8 and 9 for me? Meaning oh sorry, is it a record of loans also? DW3: Just a record of loans, Yang Arif, can I start explain Yang Arif? S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 DH: Yes you can. DW3: Okay Yang Arif. You see the Tranche No. 7 is actually a gold bar that pass from Tan Sri to David Choong but these gold bars is actually monetized … So actually 17.375 was monetized in the loan amount. So that is why we come to about 250,500 and David Choong have to pay the interest, money interest in table Tranche 7. … DW3: Yes, the gold bars actually taken from Damansara Perdana and monetized it. Straight away that means I give you gold bar you just calculate it as a loan amount. So that is why it comes to over 2.4 over millions. DH: And how much was the interest to be paid in this 2.4 million? DW3: Look at the table RM20,041.00 if you count 10%, 9 to 10% Yang Arif. DH: This is per month.” ( see RR/encl 11/pg 20-21) [69] Therefore, as these gold transactions have been monetized into cash loans and bearing interests, these transactions are also caught by the MLA and are therefore void. SOGA 3 dated 25 June 2014 Tranche Period Maturity Gold Gold price Amount Invest Dividend 1 17/5/2014 17/6/2015 1kq 130000 975 2 27/5/2014 27/6/2015 7kg 945000 7087.50 3 28/5/2014 28/6/2015 3kq 420000 3150 S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 4 2/5/2014 2/6/2015 3kg 420000 3150 5 1/5/2014 1/6/2015 1kg 130000 975 6 5/5/2014 5/6/2015 1.5kg 202500 1518.75 7 5/5/2014 5/6/2015 17.375kg 2405000 20041 8 16/6/2014 16/7/2015 14kg Loan 14000 9 26/6/2014 27/7/2015 20kg Loan 18000 10 18/11/2014 18/6/2015 22kg 122 1875000 15625 11 128 941000 No dividend [70] In respect of SOGA 3, Tranche 1 to 9 are reproductions of SOGA 1 and SOGA 2. For the reasons enumerated above, we find that all the nine (9) transactions are cash loans disguised as sale and purchase of gold, and are therefore void under the MLA. Tranche 10 [71] DC had purchased a portion of this 22kg gold to the value of RM941,000.00 and paid TSM the same in 2 instalments of RM491,000.00 and RM450,000.00 on 18 November 2014 and 31 December 2014 respectively. These two (2) payments can be seen from DC's December 2014 Maybank statement account showing a debit entry of RM491,000.00 on 18 December 2014 and a debit entry of RM450,000.00 on 31 December 2014. [72] These payments are corroborated by TSM's December 2014 Ambank statement showing credit entry of RM491,000.00 on 18 December 2014 and a credit entry of RM450,000.00 on 21 S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 December 2014. This shows that TSM had received the sum of RM941,000.00 from DC. [73] The balance monetised sum of RM1,875,000.00 (RM2,816,000.00 minus RM941,000.00) continued to be loaned to DC subject to monthly interest of RM14,125.00 (interest rate of 9% p.a. on RM1,875,000.00) ("Monetised Loan 10"). For Loan 10, from 28.12.2013 to 18.3.2015, DC had paid to TSM the total interest of RM56,560.00. The evidence of the payment of the interest is supported by the bank statements of DC. [74] The above evidence is supported by the oral evidence of LKG: “DH: Alright, now you explained 9, can you explain item 10 and 11? DW3: … Actually number 10 and 11 is to record 22 kg of gold bars passed to David Choong at that time, towards end on 2014. Therefore the 22 kg, because Tan Sri wants to sell at the price of RM128, meanwhile at that moment, price was still RM122. Then once it hits 128, Tan Sri want to monetize whole bunch of gold. Monetize it. So how come it come to 941? Because the item under no 11, RM941000.00 actually Tan Sri wants to cash out to give to someone. So the loan left of RM1.8m 78 thousand to keep for David Choong. Still in the loan. 941 Tan Sri want to cash to give to someone then the balance 187 thousands keep as a loan. … DH: So Tan Sri had 22 kg of gold. What he wanted to do is to sell at RM128 per gram. S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 DW3: Yes Yang Arif. ….. DH: The total is 1 million 875 thousand plus 941 thousand. How much is that? So the total is RM2 million 816 thousands, correct? DW3: Yes Yang Arif. DH: Of which then he took 941 thousands for himself and he loaned David Choong RM1.875 million? DW3: Yes Yang Arif. DH: And for that 1.875 million he charged interest amount of RM15,625.00 correct? DW3: Yes correct.” ( see RR/encl 11/pages 23-24). Tranche 11 [75] With regards to Tranche 11, this was subsequently omitted from SOGA 4 because this sum was taken by TSM himself as can be seen from the above evidence of LKG. SOGA 4 dated 25 June 2014 [76] SOGA 4 is a restatement of SOGA 1 to SOGA 3, without tranche 11 and shows a total investment of RM6,341,000.00. S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 Tranche Period Maturity Gold Gold Price Amount invest Dividend 1 17/1/2015 17/6/2015 1kg 130000 975 2 27/1/2015 27/6/2015 7kg 945000 7087.5 3 28/1/2015 2/6/2015 3kg 420000 3150 4 2/1/2015 2/6/2015 3kg 420000 3150 5 1/1/2015 1/6/2015 1kg 130000 975 6 5/1/2015 5/6/2015 1.5kg 202500 1518.75 7 5/1/2015 5/6/2015 2405000 20041 Total 4652500 36897.25 8 18/1/2015 18/6/2015 128 1875000 14125 9 17/1/2015 17/6/2015 14kg 129 1806000 15050 10 26/1/2015 26/6/2015 20kg 133 2660000 20166 Total 6341000 49341 [77] For the reasons enumerated above, we are also of the considered opinion that SOGA 4, which is a restatement of SOGA 1 to SOGA 3, is a moneylending business, which is contrary to subsection 5(1) of the MLA. The said loans were camouflaged by way of the SOGA 1 to SOGA 3 and were in truth loans by TSM to DC, repayable with interest. Issues Raised by the Court [78] On 15 December 2022, this Court directed the parties to submit on the following issues: - (i) The Legal definition of "Money"; (ii) If gold is given in physical form and value determined or to be determined at a later date together with a return of investment or S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 Dividend or interest, or given by way of a loan, whether it is contrary to the MLA; and (iii) If a transaction is contrary to the MLA, can the alleged borrower after his unequivocal admission of the debt, raise the issue of illegality to escape the obligation to repay the amount outstanding. [79] With regards to issue (i), it is common ground that ‘Money’ is not defined in the MLA. Therefore, ‘money’ must be given its dictionary meaning. In Black's Law Dictionary, 7th Edition (1999), money is defined as: "Medium of exchange authorized or adopted by a government as part of its currency ...assets that can be easily converted to cash... " [80] In view of the above definition of money, that is, it is a medium of exchange that can be easily converted to cash, we find that the definition of money is wide enough to encompass not only traditional forms of currency but also assets that can be readily converted into cash. This will definitely include gold and cryptocurrencies. [81] On issue (ii), we are of the considered opinion that from the factual matrix of this case, Tranche 7 to 10 were initially in the form of gold bars. However, subsequently the parties agreed that these transactions be converted into cash values (principal loan sum) with interest payments paid on the principal loan sum. Therefore, since the S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 36 gold bars have been converted into cash (monetised) form, then these money loans are caught under the MLA. [82] Added to that, in his letter dated 20 April 2015, TSM had made express reference to a "loan" of RM10,043,500.00 and there was no demand for the return of the gold. As such, we agree with DC that the act of TSM demanding DC to repay the money clearly shows that he did not sell gold to DC. [83] With regards to issue (iii), in the case of Suu Lin Chong v Lee Yaw Seang [1979] 2 MLJ 48, despite there being an admission of monies owed, the Court held that as the moneylending transaction was illegal and void ab initio, and the Court should not allow restitution. [84] Recently, the same matter was raised in the case of Triple Zest Trading & Suppliers & Ors v. Applied Business Technologies Sdn Bhd [2023] 10 CLJ 187, where two (2) of the Questions before the Federal Court are as follows: (i) whether a loan agreement which charges an interest at the rate of 100% within a period of 30 days is legal under the law? (ii) if the answer to question (i) is illegal, whether the court should still assist the moneylender to recover the principal amount lent? [85] Both Questions were answered in the Negative. In the judgment, the Federal Court had cited with approval the following cases: S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 37 “[29] We find as apt the general pronouncements of law made by the Court of Appeal in the following two cases and one by the High Court, although the context and factual matrix of the cases differs in material respects from the present appeal: (i) Ideal Advantage Sdn Bhd v. Perbadanan Pengurusan Palm Spring @ Damansara & Another Appeal [2019] 1 LNS 894; [2020] 4 MLJ 93: Taking the argument on illegality point, it is trite that the effect of any illegal transaction will result in the "loss lies where it falls". A party that suffers loss due to an illegal contract, cannot sue the other contracting party to recover losses. The law will not afford relief to those who claim entitlements from an illegal act. (ii) Dr Mansur Hussain & Ors v. Barisan Tenaga Perancang (M) Sdn Bhd & Ors [2019] 1 LNS 661; [2019] MLJU 1552: Suffice for us to say here that if an agreement is void ab initio for illegality, no restitution can happen. No court will lend its hands to unwind a void agreement that was illegal ab initio by restoring each party to its original position as though the illegal agreement never took place. (iii) Yeow Guang Cheng v. Tang Lee Hiok & Ors [2020] 1 LNS 1696 (affirmed by the Court of Appeal in Tang Lee Hiok & Ors v. Yeow Guang Cheng [2022] 1 LNS 1510): S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 38 To deter unlicensed moneylenders from continuing with their nefarious business, it is in the public interest for unlicensed moneylenders to be deprived of their illegal "principal loan sums", interest and whatever ill- gotten property or benefit enjoyed from their unlawful moneylending business.” [86] Consequently, applying the above cases, we are of the considered opinion that since the SOGAs entered between TSM and DC are contrary to the MLA, they are void ab initio and the effect of such illegal transaction is that the "loss lies where it falls". Therefore, TSM cannot sue DC to recover losses. The law will not afford relief to those who claim entitlements from an illegal act. Conclusion. [87] For the reasons enumerated above, we allow all the three (3) appeals and set aside the decision of the learned High Court Judge. In respect of DC’s appeal in Appeal No. 2155 and 2156, we only allow the prayer on the issue of declaration that the SOGAs are void under the MLA. Since all parties are involved in the illegal transaction, we make an order that parties are to bear their own costs. Dated: 24 November 2023 sgd (AZIZAH BINTI NAWAWI) Judge Court of Appeal, Malaysia S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 39 Parties Appearing: CIVIL APPEAL NO. W-02(NCvC)(W)-2021-10/2021 For The Appellant : Joseph Yeo Tetuan Joseph Yeo For The Respondent : Sivanesan Nadarajah / Leong Pei Xin Tetuan Vicknaraj, R D Ratnam Rajesh Kumar & Assoc CIVIL APPEAL NO. W-02(NCVC)(W)-2155-11/2021 For The Appellant : David Hoh / Cassandra Choo Tetuan Lim & Hoh For Respondent 1 : Sivanesan Nadarajah / Leong Pei Xin Tetuan Vicknaraj, R D Ratnam Rajesh Kumar & Assoc. For Respondent 2 : Hafizah Johor Binti Ariff Johor JABATAN INSOLVENSI MALAYSIA CIVIL APPEAL NO. W-02(NCvC)(W)-2156-11/2021 For The Appellant : David Hoh / Cassandra Choo Tetuan Lim & Hoh S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal 40 For The Respondent : Sivanesan Nadarajah / Leong Pei Xin (Tetuan Vicknaraj, R D Ratnam Rajesh Kumar & Assoc) Legislations: 1. Moneylenders Act 1951 2. Contracts Act 1950 Cases: 1. Goh Gin Chye & Anor v. Peck Teck Tian Realty Pte Ltd & Anor [1987] 1 LNS 33 2. Addiscombe Garden Estates Ltd and Anor v Crabbe and Ors [1958] 1 QB 513 3. In Ngui Mui Khin & Anor v. Gillespie Bros & Co Ltd [1979] 1 LNS 60; [1980] 2 MLJ 9 4. Suu Lin Chong v Lee Yaw Seang [1979] 2 MLJ 48 5. Triple Zest Trading & Suppliers & Ors v. Applied Business Technologies Sdn Bhd [2023] 10 CLJ 187 6. Ideal Advantage Sdn Bhd v. Perbadanan Pengurusan Palm Spring @ Damansara & Another Appeal [2019] 1 LNS 894; [2020] 4 MLJ 93 7. Dr Mansur Hussain & Ors v. Barisan Tenaga Perancang (M) Sdn Bhd & Ors [2019] 1 LNS 661; [2019] MLJU 1552 8. Yeow Guang Cheng v. Tang Lee Hiok & Ors [2020] 1 LNS 1696 9. Tang Lee Hiok & Ors v. Yeow Guang Cheng [2022] 1 LNS 1510 S/N sdUY6HigeEib9bqfDBOxTA **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

W-02(NCvC)(W)-2021-10/2021

PERAYU LEE KUANG GEN RESPONDEN TAN SRI DATO' SERI DR M MAHADEVAN A/L MAHALINGAM

Moneylenders Act 1951 (MLA) - gold investments - inducements & misrepresentation - Sale of Gold Agreements (SOGA's) - disguised transactions of money lending - void ab initio - admission of indebtedness - cash loans - authenticity & credibility - illegal transaction

28/11/2023

YA Datuk Hajah Azizah binti Haji NawawiKorumYA Datuk Hanipah Binti FarikullahYA Datuk Hajah Azizah binti Haji NawawiYA Datuk S. Nantha Balan A/L E.S. Moorthy

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=78cfdbba-8562-48a1-9e75-3193cbf545f6&Inline=true

1 CIVIL APPEAL NO. W-02(NCvC)(W)-2021-10/2021 BETWEEN LEE KUANG GEN … APPELLANT AND TAN SRI DATO' SERI DR M MAHADEVAN A/L MAHALINGAM … RESPONDENT CIVIL APPEAL NO. W-02(NCvC)(W)-2155-11/2021 BETWEEN DAVID CHOONG JIN CHAI … APPELLANT AND 1. TAN SRI DATO' SERI DR M MAHADEVAN A/L MAHALINGAM 2. LETCHUMANAN A/L S. RAJOO … RESPONDENTS CIVIL APPEAL NO. W-02(NCvC)(W)-2156-11/2021 BETWEEN DAVID CHOONG JIN CHAI … APPELLANT AND TAN SRI DATO' SERI DR M MAHADEVAN A/L MAHALINGAM … RESPONDENT 28/11/2023 16:24:11 W-02(NCvC)(W)-2021-10/2021 Kand. 44 S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 CORAM HANIPAH BINTI FARIKULLAH, JCA AZIZAH BINTI NAWAWI, JCA S. NANTHA BALAN, JCA JUDGMENT Introduction [1] There are 3 (three) appeals before us arising from two (2) separate Suits. [2] In Civil Suit No: 22NCVC-479-09/2015 (“Suit 2015”), David Choong (“DC”) had sued Tan Sri Dato' Seri Dr M Mahadevan a/I Mahalingam (“TSM”) and 9 Others seeking, inter alia, a declaration that TSM had illegally loaned monies to DC in ten (10) transactions which are unlawful and unenforceable under the Moneylenders Act 1951 (“MLA”). [3] In Civil Suit No: 22NCVC-95-02/2017 (“Suit 2017”), TSM had sued DC and Lee Kuang Gen (“LKG”) for collusion by way of inducement, misrepresentation and false promises of handsome returns of gold investments, and causing TSM to enter into the Sale of Gold Agreements (“SOGAs”) with DC amounting to RM10,493,500.00. TSM’s claim is for the return of the said sum of RM10,493,500.00. S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 [4] DC filed a Counterclaim in Suit 2017 seeking a declaration that all of TSM's 10 loans to DC are in contravention of the MLA and are therefore illegal and/or void ab initio, an injunction to restrain TSM and his servants and agents from harassing, assaulting, threatening or committing any act to injure DC and his businesses and for general damages. [5] After a full trial, the learned Judge has allowed Suit 2017. LKG had filed an appeal in Appeal No. W-02(NCvC)(W)- 2021-10/2021 (“Appeal 2021”) and Appeal No. W- 02(NCvC)(W)-2155-11/2021 (“Appeal 2155”) was filed by DC. [6] The learned Judge had also dismissed Suit 2015, and this is the subject matter of Appeal No. W-02(NCvC)(W)-2156- 11/2021 (“Appeal 2156”) by DC. The Salient Facts [7] In or about July 2013, LKG had introduced DC to TSM for the sale of gold bars by TSM. In respect of these transactions, the gold bars were sold and the proceeds of the sale were deposited into the bank account of the TSM. [8] Between November 2013 to January 2015, TSM had entered into the following SOGAs with DC to sell/invest in gold ingots to the value of RM10,993,500.00. TSM’s position is that he S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 had transferred the gold to the said value to DC based on the following agreements: (i) SOGA 1 dated 17 November 2013; (ii) SOGA 2 dated 25 June 2014; (iii) SOGA 3 dated 25 June 2014; and (iv) SOGA 4 dated 9 January 2015. [9] The said SOGAs are the subject matter of both suits. [10] Parties have also signed four (4) documents, titled “Letter Verifying and Confirming Transfer of Gold Bullions” (Exhibits D5, D44 and D45). These documents are to show that the gold bullion was transferred to DC, who is described as the purchaser, from TSM, who is described as the vendor. [11] In early 2015, TSM had requested that DC return the sum of RM2,000,000.00 and USD2,000,000.00. [12] By a letter dated 20.4.2015, TSM requested DC to pay the sum of RM10,043,500.00. DC did not make the payment. [13] On 2 September 2015, DC filed Suit 2015. [14] On 21 February 2017, TSM Suit 2017. S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 Decision of the High Court [15] The core issue before the learned High Court Judge was whether the SOGAs entered between DC and TSM are for the sale of the gold bullions or disguised transactions of money lending. [16] Before the learned Judge, DC took the position that the loan agreements were disguised as the SOGA, but were essentially money lending arrangements, where the loan was portrayed as an investment and the interests as dividends. On the contrary, TSM contends that the transactions between him and DC did not involve money lending transactions but investments of gold and are therefore not prohibited by the MLA. [17] Having considered the evidence, the learned Judge made a finding that there was a clear admission of indebtedness towards a settlement by DC to TSM. The undisputed sequence of events culminating in the sale of the gold are consistent with the fact that the gold transactions are actually agreements for the sale of gold. The learned Judge also held that the evidence clearly shows that both DC and LKG were from the outset, and were at all material times, fully aware that the agreements were for the sale of gold. [18] The learned Judge also made a finding that DC had failed to prove on the balance of probabilities that TSM had carried on S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 a moneylending business. As such, the learned Judge held that sections 5(1) and 15 of the MLA do not apply to the gold transactions under the SOGAs. [19] As against LKG, the learned Judge held that the indemnity letter dated 2 July 2015 was signed by LKG voluntarily and that the terms of the indemnity letter are valid and enforceable against him. In the said indemnity letter, LKG had explicitly committed to indemnify TSM “completely against all repercussions and liabilities, regardless of their nature, directly stemming from or connected to the mentioned investment", that is, the gold investment. Our Decision [20] The only issue before us is whether the transacted sum of RM10,043,500.00 was pursuant to the SOGAs or was it a disguise for money lending and is therefore subject to the provisions of the MLA. Whether the SOGAs were genuine agreements for the sale of the gold SOGA 1 dated 17 November 2014 [21] The terms in the SOGAs, between TSM as the vendor, and DC as the purchaser for the sale of the gold, inter alia, are as follows (see SOGA 1 dated 17 November 2014): S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 “SALE OF GOLD An Agreement made this 17th November 2014 Between M Mahadevan a/l Mahalingam (I/C No. 290909-14-5467) (hereinafter called the Vendor) on the one part and David Choong Jin Chai (I/C No. 831111-14-6369) of No. 27, Jalan Setiabakti 8, Bukit Damansara, 50490 Kuala Lumpur (hereinafter called the Purchaser) on the other part. WHEREAS A. The Vendor is the proprietor/owner of gold products of 99.99% which shall be ninety nine point ninety nine percent (99.99%) gold purity (the “said Gold”). B. The Vendor is desirous of selling the said Gold to the Purchaser and the Purchaser has agreed to purchase the same on terms and conditions hereinafter set forth. NOW IT IS HEREBY AGREED as follows: - 1. In consideration of the sum of Ringgit Malaysia One Only (RM1.00) now paid by the Purchaser to the Vendor, the receipt whereof the Vendor hereby acknowledges, the Vendor hereby agrees to sell the said Gold at a below table (hereinafter referred to as the Purchase Price). 2. The balance of the Purchase Price as per below table shall be payable by the Purchaser to the Vendor on or before 5 Dec 2014 (Completion Date) 3. Tranche Period Maturity Gold Gold Price Amount invest Dividend 1. 17/5/2014 17/6/2014 1kg 130,000 975 2. 27/5/2014 27/6/2014 7kg 945,000 7087.5 3. 20/5/2014 28/6/2014 3kg 420,000 3150 S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 Tranche Period Maturity Gold Gold Price Amount invest Dividend 4. 2/5/2014 2/6/2014 3kg 420,000 3150 5. 1/5/2014 1/6/2014 1kg 130,000 975 6. 5/5/2014 5/6/2014 1.5kg 202,500 1518.75 4. Upon payment of the balance of the Purchase Price by the Purchaser to the Vendor within the stipulated period by cash or bankers draft, the Vendor shall deliver the said Gold to the Purchaser. 5. ……” [22] TSM had explained that the sale of gold transactions under the SOGAs to be as follows: (i) the gold transaction is carried out whereby DC takes possession of the gold belonging to TSM and enters into the SOGA for the purchase of the gold; (ii) the purchase price for the gold to be paid by DC to TSM is fixed at the date of the agreement, but the purchase price is to be paid at a future date; and (iii) pending the payment of the full purchase price, DC is to pay a fixed sum calculated on the purchase price and this fixed sum is paid to TSM on a monthly basis until the completion of the sale, when the full purchase price of the gold is paid to TSM on the date stated in the agreement. S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 [23] Therefore, from the evidence in chief of TSM, DC is supposed to pay for the gold transactions under SOGA 1 to TSM at a fixed sum on a monthly basis until the full purchase price is paid. [24] However, learned counsel for the Appellant/DC took the position that Tranche 1 to Tranche 6 of SOGA 1 are not investments, but are cash loans given by TSM to DC whilst the dividends are actually interests over the said loans which DC had to pay. [25] DC had submitted that from August 2013 to September 2013, TSM had continuously loaned cash monies to DC on 6 occasions totalling RM2,247,500.00 with interest charged for each and paid by DC to TSM. These cash loans are as follows: (i) On 17.9.2013, TSM remitted from his Ambank Account into DC's MBB Account No: 514730104186 the principal cash sum of RM130,000.00 as a cash loan (see exhibit D17/encl 12/pdf pg 157) (cash loan 1); (ii) On 27.8.2013, TSM remitted from his Ambank Account into DC's MBB Account No: 514721053886 the principal cash sum of RM945,000.00 as a loan (see Exhibit D-18/encl 12/pdf pg 155) (cash loan 2); S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 (iii) On 28.8.2013, TSM remitted from his Ambank Account into DC's MBB Account No: 514721053886 the principal cash sum of RM420,000.00 as a loan (cash loan 3); (iv) On 30.8.2013, TSM remitted from his Ambank Account into DC's MBB Account No: 514721053886 the principal cash sum of RM420,000.00 as a loan (cash loan 4); (v) On 30.9.2013, TSM remitted from his Ambank Account into DC's MBB Account No: 514730104186 the principal sum of RM130,000.00 as a loan(see Exhibit D19/encl 12/pdf pg 158) (cash loan 5); and (vi) On 5.9.2013, TSM remitted from his Ambank Account into DC's MBB Account No: 514730104186 the principal sum of RM202,500.00 as a loan (see Exhibit D20/encl 12/pdf pg 156) (cash loan 6). [26] The total six (6) principal cash loans stated above amount to RM2,247,500.00, broken down as follows: 1. Cash Loan 1 = RM 130,000.00 2. Cash Loan 2 = RM 945,000.00 3. Cash Loan 3 = RM 420,000.00 4. Cash Loan 4 = RM 420,000.00 5. Cash Loan 5 = RM 130,000.00 6. Cash Loan 6 = RM 2022500.00 RM2,247,500.00 S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 [27] It is to be noted that the Cash Loan 1 to 6, corresponds with the amount invested in Tranche 1 to 6 of SOGA 1. [28] We are of the considered opinion and we agree with the Appellant / DC that the above Cash Loans 1 to 6, which are Tranche 1 to 6 of SOGA 1, are transfers of cash from TSM to DC, and these are supported by the bank documents, in the form of Remittance Form, TSM Bank Statement and DC’s Bank Statements. [29] For Cash Loan 1, the said loan is supported by the following documents to show the transaction of RM130,000.00 from TSM to DC: (i) TSM's Ambank TT Remittance Application Form (dated 17.9.2013). This form is evidence of the transfer of RM130,000.00 from TSM to DC. This form was signed by TSM as the Applicant to transfer the said sum to the beneficiary, DC; (ii) TSM's Ambank 2013 Statement (showing 17.9.2013 Debit entry of RM130,000.00). TSM’s 2013 bank statement from Ambank clearly records a debit entry of RM130,000.00 on 17 September 2013, to correspond to the transfer to DC’s account; and S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 (iii) DC Maybank 2013 Statement (showing 17.9.2013 credit entry of RM130,000.00). DC’s September 2013 bank statement from Maybank has confirmed the credit entry of RM130,000.00 on 17 September 2013, which confirmed the transaction. This credit entry in the Maybank statement confirms that the funds were successfully received by DC from TSM. [30] For Cash Loan 2, TSM's Ambank TT Remittance Application Form (dated 27.8.2013) evidences a transfer of RM945,004.00 (including a RM4.00 fee) from TSM to DC, signed by TSM as the transfer applicant. This transfer is supported by TSM's Ambank 2013 Statement, which shows a Debit entry of RM945,000.00 on 27 August 2013, matching the transfer to DC's account. Added to that, DC's Maybank 2013 Statement confirms the RM945,000.00 credit entry on 27 August 2013, verifying the successful receipt of funds from TSM. [31] For Cash Loan 3, TSM's Ambank TT Remittance Application Form (dated 28.8.2013) evidences a transfer of RM420,004.00 (including a RM4.00 fee) from TSM to DC, signed by TSM as the transfer applicant. This transfer is supported by TSM's Ambank 2013 Statement, which shows a Debit entry of RM420,000.00 on 28 August 2013, matching the transfer to DC's account. Added to that, DC's Maybank 2013 Statement confirms the RM420,000.00 credit entry on S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 28 August 2013, verifying the successful receipt of funds from TSM. [32] For Cash Loan 4, TSM's Ambank TT Remittance Application Form (dated 30.8.2013) evidences a transfer of RM420,004.00 (including a RM4.00 fee) from TSM to DC, signed by TSM as the transfer applicant. This transfer is supported by TSM's Ambank 2013 Statement, which shows a Debit entry of RM420,000.00 on 30 August 2013, matching the transfer to DC's account. Added to that, DC's Maybank 2013 Statement confirms the RM420,000.00 credit entry on 30 August 2013, verifying the successful receipt of funds from TSM. [33] For Cash Loan 5, TSM's Ambank TT Remittance Application Form (dated 30.9.2013) evidences a transfer of RM130,004.00 (including a RM4.00 fee) from TSM to DC, signed by TSM as the transfer applicant. This transfer is supported by TSM's Ambank 2013 Statement, which shows a Debit entry of RM130,000.00 on 30 September 2013, matching the transfer to DC's account. Added to that, DC's Maybank 2013 Statement confirms the RM130,000.00 credit entry on 30 September 2013, verifying the successful receipt of funds from TSM. [34] For Cash Loan 6, TSM's Ambank TT Remittance Application Form (dated 5.9.2013) evidences a transfer of RM202,504.00 (including a RM4.00 fee) from TSM to DC, signed by TSM as S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 the transfer applicant. This transfer is supported by TSM's Ambank 2013 Statement, which shows a Debit entry of RM202,500.00 on 5 September 2013, matching the transfer to DC's account. Added to that, DC's Maybank 2013 Statement confirms the RM202,500.00 credit entry on 5 September 2013, verifying the successful receipt of funds from TSM. [35] In summary, from the combination of these documents, TSM's Ambank TT Remittance Application Form, TSM's Ambank 2013 Statement and DC’s Maybank 2013 Statement, have provided comprehensive evidence of the six (6) cash loan transactions, remitted by TSM to DC. [36] The flow of the money, the six (6) cash loan transactions, is not from DC to TSM to pay for the gold, but are cash transaction remitted by TSM to DC as captured by the bank documents. [37] In other words, we find that there is inconsistency in the financial transactions and their alignment with the purported nature of the agreement. If TSM is indeed the seller of gold to DC, the conventional business practice would dictate that the buyer, DC, should be the one transferring funds to the seller, TSM. The reversal of this financial flow in this case raises doubts on the authenticity and credibility of TSM’s claim that these are the claimed "sale of gold" transactions. S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 [38] Having considered the Appeal Record, we find that TSM's testimony under cross-examination during the trial shows that that he had failed to provide an explanation as to why he transferred money to DC and his general answer was that, LKG, his fund manager would be able to explain: “DH: I put to you that, these 4 payments were made to your account and 2 payments were made on 26th July 2013 for the sum of RM900,000.00 as well as RM30,000.00 respectively on this date. And also on 29th July 2013, both funds equal to the balance part payment for 2208, 2 million and 208 thousands just for the record. My lady. I put that. PW1: Yang Arif. PW1: Yang Arif, so many payments were also made. Yang Arif. This is only isolated. I can’t tell. Only my fund manager will be able to tell. He’s the one. I wonder who pick this thing. These are my personal accounts. I didn’t mark on them. DH: Tan Sri, we are not going on about this anymore. We will talk to your fund manager when he comes. PW1: Yes, he will be able to answer, the other payments are there. I don’t know, so many why are these. Are these only a pickup. I don’t know. So many payments are there. I didn’t. Its my own account. How did it go. My fund manager would be able to tell. Who pick it up? That is not from me. I didn’t get this account. Yang Arif, I didn’t point out this one..” (RR/encl 6/pg 75-76) …. S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 PW1: … I can’t see other payments. Everything, who gave this statement. I wouldn’t know Yang Arif. The only man who can answer is my fund manager, fund manager. There are only two isolated items here that I can see. I won’t know. Only he would be able to answer. He is the man who manages. He takes the gold and he pays. No money he doesn’t get the gold. That’s it. That’s all I know. He does it …. (RR/encl 6/pg 78-79) [39] Added to that, TSM had given evidence that his fund manager, LKG, would know the details. In his evidence LKG had confirmed that he had prepared the six (6) Ambank TT Remittance Form based on TSM’s instruction to transfer the six (6) principal cash loan sums to DC. LKG had affirmed that because TSM had signed the TT Remittance Forms, TSM knew that these six (6) principals cash sums were in fact cash money loans to DC with interest, and they were not for sale of gold bars. Under cross-examination, LKG gave the following evidence: “DH: Alright now after, you would agree with me that after the first 2 real sale of gold transactions. Then what happen? Would you agree with me that Tan Sri then over a period on 17th October 2013 to 5th November 2013, I am looking at page 82, the first table. DW3: Yes Yang Arif. DH: Alright. Would you agree with me that Tan Sri had lent cash money to DC? For that period in the table. 6 loans. Over that period to David Choong. DW3: Yes Yang Arif. S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 DH: Now, and you would agree with me that the loans that was lent, the actual money were under the amount invest column. There is a column there…. There are figures there, right as you look there are 6 figures Tranche 1, 2, 3, 4, 5, 6 there’s correspondingly the amounts invested are for the first loan of RM130,000.00, second loan RM945,000.00, third loan RM420,000.00, fourth loan RM20,000.00, fifth loan RM130,000.00 and sixth RM202,500.00 right? DW3: Yes Yang Arif. DH: So you would agree with me that these were actually the cash loan amounts that Tan Sri had loan to David Choong? DW3: Yes Yang Arif. DH: Now the last column under the label dividend, what was that? DW3: That was the interest that David Choong have to pay Tan Sri every month Yang Arif. (see RR/encl 11/pg 16-18) ….. DW3: ….. As you can see that in Tranche 1 that under dividend, the interest paid was RM975.00 have to be times 12 months and is equivalent to 9% for each transaction the loans that have been given. …. DH: Alright and there are figures here. Was there any real gold that was transacted in regards to the 6 transactions in these documents? S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 DW3: No Yang Arif.” (see RR/encl 11/pg 16-17) [40] On the issue of the ‘dividends’ in SOGA 1, DC took the position that these are not real dividends, but are interests charged on Cash Loan 1 to 6, by TSM at the rate of 9%. This was supported by LKG, who had also confirmed that the six (6) Dividends stated in SOGA-1 were in fact interest payable for the six (6) cash loans, as can be seen from the evidence above. [41] The monthly interests which tally with the figures on dividends in SOGA 1 are as follows: Loan Amount 9% p.a Monthly payment Cash loan 1 RM130,000.00 RM11,700.00 RM975.00 Cash loan 2 RM945,000.00 RM85,050.00 RM7,087.50 Cash loan 3 RM420,000.00 RM37,800.00 RM3,150.00 Cash loan 4 RM420,000.00 RM37,800.00 RM3,150.00 Cash loan 5 RM130,000.00 RM11,700.00 RM975.00 Cash loan 6 RM202,500.00 RM18,225.00 RM1,518.75 [42] DC had also given evidence that he had paid to TSM monthly interest at a rate of 9% p.a. for each transaction, totalling RM300,908.25. These payments are evidenced by the bank statements of DC’s account. S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 [43] Since Tranche 1 to Tranche 6 of SOGA 1 are cash remitted by TSM to DC, they are cash loans given by TSM to DC, disguised as sale of gold transactions. [44] We are of the considered opinion that the learned Judge was plainly wrong in her finding that SOGA 1 is purely a sale and purchase of gold. The learned Judge failed to consider the banking documents which show the remittance of cash from TSM to DC, which corresponds with the ‘Amount Invest’ in SOGA 1 and the ‘dividends’ were actually interest of 9% pa on the respective cash loans. [45] It is trite law that the Court does not look at labels attached to a document but will examine the contents of the same in its particular circumstances to determine the true relationship between the parties and the type of transaction that they have entered into. [46] In Goh Gin Chye & Anor v. Peck Teck Tian Realty Pte Ltd & Anor [1987] 1 LNS 33, the Singapore Court of Appeal had applied the English case of Addiscombe Garden Estates Ltd and Anor v Crabbe and Ors [1958] 1 QB 513 where the plaintiffs had expressly by a written agreement purported to "license and authorise" the defendants to use and enjoy certain premises and amenities therein for a term of two years in consideration of a payment of certain fees. The Court of Appeal in England, upon a detailed examination of the agreement, came to the conclusion that a tenancy was S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 created, notwithstanding that the document was described by the parties as a licence and the draftsman had "studiously and successfully avoided" the use either of the word "landlord" or the word "tenant" throughout the document. Jenkins L.J. said at p. 522: "As to the first question? whether the so-called licence of April 12, 1954, in fact amounted to a tenancy agreement under which the premises were let to the trustees? the principles applicable in resolving a question of this sort are, I apprehend, these. It does not necessarily follow that a document described as a licence is, merely on that account, to be regarded as amounting only to a licence in law. The whole of the document must be looked at; and if, after it has been examined, the right conclusion appears to be that, whatever label may have been attached to it, it in fact conferred and imposed on the grantee in substance the rights and obligations of a tenant, and on the grantor in substance the rights and obligations of a landlord, then it must be given the appropriate effect, that is to say, it must be treated as a tenancy agreement as distinct from a mere licence." And he later said, at p. 528: "The present case, of course, has nothing to do with the Rent Acts, but the important statement of principle is that the relationship is determined by the law, and not by the label which parties choose to put on it, and that it is not S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 necessary to go so far as to find the document a sham. It is simply a matter of ascertaining the true relationship of the parties." (emphasis added) [47] Based on the banking documents that TSM had transferred cash loans to DC rather than gold bars, it can be concluded that SOGA 1 neither substantiates nor serves as evidence for the existence of six gold sale transactions. Consequently, we find that SOGA 1 is a sham document and does not represent a valid sale and purchase of gold. [48] The next issue is whether the six (6) cash loans are caught by the MLA. The purpose of the MLA is to regulate the business of moneylending and not to regulate all kinds of moneylending transactions. Subsections 5(1) and (2) of the MLA prohibit unlicensed moneylending business and certain acts related thereto. The MLA does not prohibit any moneylending transaction with interest unless the lender has carried on an unlicensed moneylending business. In Ngui Mui Khin & Anor v. Gillespie Bros & Co Ltd [1979] 1 LNS 60; [1980] 2 MLJ 9, the Federal Court held as follows: “At the outset we wish to observe that the Moneylenders Ordinance, 1951 does not apply to moneylending but only to Moneylenders. It does not make every moneylending transaction illegal and unenforceable. It is only a moneylending transaction of a moneylender which is the subject-matter of the Ordinance and must comply with its S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 provisions on pain of being declared illegal and unenforceable by the court. We make this simple and obvious observation because it was canvassed very strongly before us by counsel for the appellants that since the transactions between the respondents and the client are moneylending transactions, the respondents must be a moneylender and the guarantee which the appellants signed is therefore unenforceable. This submission overlooks the fact that the party to a transaction who thereby becomes the creditor may or may not be a moneylender. He is a moneylender if within the meaning of section 2 of the Ordinance he can be said to be a person "whose business is that of moneylending". To prove business requires some sort of continuity or system or repetition of similar transactions. (Chow Yoong Hong v. Choong Fah Rubber Manufactory [1960] 1 LNS 17; [1962] AC 209 at 218: [1962] MLJ 74).” (emphasis added) [49] In Ngui Mui Khin & Anor v. Gillespie Bros & Co Ltd, the Court held that to prove money lending within the ambit of the MLA, ‘requires some sort of continuity or system or repetition of similar transactions’. However, the new provision in section 10OA MLA (which came into force on 15 April 2011 vide Act A1390) provides that in any proceedings against any person where it is alleged that such person is a moneylender, proof of a single loan at interest made by such person shall raise a rebuttable presumption that such person is carrying on the business of moneylending. Section 10OA reads as follows: S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 “Presumption as to the business of moneylending 10OA Where in any proceedings against any person, it is alleged that such person is a moneylender, the proof of a single loan at interest made by such person shall raise a presumption that such person is carrying on the business of moneylending, until the contrary is proved.” (emphasis added) [50] Section 10OA is a rebuttable presumption, a legal principle that presumes something to be true unless proven otherwise. Section 10OA of the MLA imposed on TSM the legal burden of proving, on the balance of probabilities, that he was not carrying on the business of "moneylending" when he lent the six (6) cash loans, which carried interests, to DC. The presumption is that TSM was carrying on the business of moneylending, "until the contrary is proved". [51] In the present appeal, we are of the considered opinion that a rebuttable presumption that TSM had carried on a moneylending business by granting six (6) cash loans to DC without a moneylender's license has arisen pursuant to s. 10OA of the MLA. The rebuttable presumption arises because there are undisputed contemporaneous documents in the form of the TSM remittance forms, TSM bank statements and DC bank statements which proved that DC had obtained the loans and paid interest at 9% p.a. to TSM. S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 [52] To successfully rebut the presumption under s. 10OA of the MLA, TSM must prove on the balance of probabilities that by entering into the six (6) loan transactions with DC, he was not engaging in an act of "lending of money at interest, with or without security, by a moneylender to a borrower", within the meaning of "moneylending" by s. 2 of the MLA. Having considered the decision of the learned Judge, we find that she had failed to consider the application of section 10OA of the MLA. On our part, and having considered the evidence, we agree with DC that TSM has failed to rebut the presumption under section 10OA MLA. [53] Therefore, we are of the considered opinion that DC had discharged the legal and evidential burden under s. 101(1), (2) and 102 of the Evidence Act to prove on the balance of probabilities that TSM had carried on a moneylending business contrary to subsection 5(1) of the MLA by making the six (6) cash loans subject to the payment of interests, to DC and the same was camouflaged as a sale of gold bars by way of SOGA 1. [54] In view of the fact that the six (6) cash loans, which are subject to the payment of interests, granted by the TSM to DC are in contravention of subsection 5(1) of the MLA, the said loans are void and unenforceable under section 15 of the MLA, which provides: S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 “Contract by unlicensed moneylender unenforceable 15. No moneylending agreement in respect of money lent after the coming into force of [MA] by an unlicensed moneylender shall be enforceable." [55] Added to that, when an agreement is found to be illegal, it is also void under s. 24 of the Contracts Act 1950, which provides that an agreement is void if the object or consideration of the agreement is unlawful. The section reads as follows: “What considerations and objects are lawful, and what not 24. The consideration or object of an agreement is lawful unless: (a) it is forbidden by law; (b) it is of such a nature that, if permitted, it would defeat any law; (c) it is fraudulent; (d) it involves or implies injury to the person or property of another; or S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 (e) the court regards it as immoral, or opposed to public policy. In each of the above cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.” [56] The six (6) cash loans subject to the payment of interests in the present appeal would be caught by paragraphs (a), (b) and (e) of section 24 of the Contracts Act. The court will not render assistance to TSM in seeking to enforce such transactions and recover the monies as the remedy of restitution under section 66 of the Contracts Act will not avail to him. SOGA 2 dated 25 June 2014 Tranche Period Maturity Gold Gold Price Amount invest Dividend 1. 17/5/2014 17/6/2014 1kg 130,000 975 2. 27/5/2014 27/6/2014 7kg 945,000 7087.5 3. 20/5/2014 28/6/2014 3kg 420,000 3150 4. 2/5/2014 2/6/2014 3kg 420,000 3150 5. 1/5/2014 1/6/2014 1kg 130,000 975 6. 5/5/2014 5/6/2014 1.5kg 202,500 1518.75 7. 5/5/2014 5/6/2014 17.375kg 2,405,000 20,041 8. 16/6/2014 16/7/2014 14kg loan 14,000 9. 26/6/2014 27/7/2014 20kg loan 18,000 S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 [57] The Table in SOGA 1 was used in SOGA 2, SOGA 3 and SOGA 4. In his evidence, LKG stated that after the parties had entered SOGA 1, TSM had instructed LKG to re-record the said loans in the subsequent SOGA 2, SOGA 3 and SOGA 4. Therefore, as can be seen from SOGA 2, SOGA 3 and SOGA 4, the same Tranche 1 to 6 or Cash Loans 1 to 6, are all recorded therein. [58] In respect of SOGA 2, all the six (6) tranches/loans described in SOGA 1 are recorded with changes to the dates in the 'period' and 'maturity' columns. In respect of these six (6) tranches, we are of the considered opinion they are the same as in SOGA 1, and therefore they are cash loans from TSM to DC with interest at 9% pa. Based on the reasons enumerated above, we find that these six (6) cash loans are in contravention of subsection 5(1) of the MLA and are therefore void under section 15 of the MLA. [59] In respect of Tranche 7, 8 and 9 of SOGA 2, DC submitted as follows: Tranche 7 [60] On 6 March 2014, TSM extended a cash loan of RM2,405,000.00 to DC by transferring 17.375g of physical Gold Bars, which were then converted into a fixed cash loan. This loan was subject to a monthly interest payment of RM20,041.00 by DC to TSM (at 10% pa) ("Monetized Loan 7"). S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 [61] Between 8 April 2013 and 11 March 2015, DC made a total interest payment of RM240,492.00 (RM20,041.00 x 12 months) to TSM. Tranche 8 [62] On 18 November 2013, TSM transferred 14 kg to DC (8kg gold bars plus the balance 6kg) subject to monthly interest of RM14,000.00. Between 16 February 2013 to 28 December 2014, DC has paid to TSM the total interest of RM182,000.00 (RM14,000.00 x 13 months) on the loan of 14kg Gold Bars. [63] On 16 December 2014, TSM monetized and converted the loan of 14kg Gold Bars into a fixed cash ringgit loan of RM1,806,000.00, subject to monthly interest of RM15,050.00 (at 10% pa). Between 21 January 2015 to 18 March 2015, DC had paid to TSM the total interest of RM45,150.00 (RM15,050.00 x 3 months) on the monetised loan of RM 1,806,000.00. (Monetized Loan 8) Tranche 9 [64] On 26 June 2014, TSM loaned to DC 20kg physical gold bars subject to monthly interest of RM18,000.00 (20kg Gold Bars). Between 5 August 2014 to 9 January 2014, DC has paid to TSM the total interest of RM108,000.00 (RM18,000.00 x 6 months) on the loan of 20kg Gold Bars. [65] On 26 December 2014, TSM had monetized and converted the 20kg Gold Bars Loan into a fixed Ringgit cash loan of RM2,660,000.00 S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 subject to payment of monthly interest of RM20,166.00 (10% p.a.). From 6 February 2015 to 30 May 2015, DC had paid to TSM the total interest of RM60,498.00 (RM20,166.00 x 3 months) on the monetised loan ("Monetised Loan 9"). [66] For Tranche 7, 8 and 9, there was a transfer of gold from TSM to DC, but these were subsequently monetized into cash loans with monthly repayments subject to 10% interest. DC gave evidence that he has paid to TSM monthly interest at a rate of 9-10% p.a. for each transaction, totalling to RM636,140.00, and summarised as follows: (i) Interest paid for Monetised Loan 7 = RM240,492.00 (ii) Interest paid for Monetised Loan 8 = RM227,150.00 (iii) Interest paid for Monetised Loan 9 = RM168,498.00 [67] We are of the considered opinion that DC had established the monthly interest payment to TSM for each Monetised Loans 7 to 9, as can be seen from DC's bank statements. [68] DC’s evidence was supported by TSM’s fund manager, LKG who gave the following evidence: “DH: Alright, can you explain Tranche 7, 8 and 9 for me? Meaning oh sorry, is it a record of loans also? DW3: Just a record of loans, Yang Arif, can I start explain Yang Arif? S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 DH: Yes you can. DW3: Okay Yang Arif. You see the Tranche No. 7 is actually a gold bar that pass from Tan Sri to David Choong but these gold bars is actually monetized … So actually 17.375 was monetized in the loan amount. So that is why we come to about 250,500 and David Choong have to pay the interest, money interest in table Tranche 7. … DW3: Yes, the gold bars actually taken from Damansara Perdana and monetized it. Straight away that means I give you gold bar you just calculate it as a loan amount. So that is why it comes to over 2.4 over millions. DH: And how much was the interest to be paid in this 2.4 million? DW3: Look at the table RM20,041.00 if you count 10%, 9 to 10% Yang Arif. DH: This is per month.” ( see RR/encl 11/pg 20-21) [69] Therefore, as these gold transactions have been monetized into cash loans and bearing interests, these transactions are also caught by the MLA and are therefore void. SOGA 3 dated 25 June 2014 Tranche Period Maturity Gold Gold price Amount Invest Dividend 1 17/5/2014 17/6/2015 1kq 130000 975 2 27/5/2014 27/6/2015 7kg 945000 7087.50 3 28/5/2014 28/6/2015 3kq 420000 3150 S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 4 2/5/2014 2/6/2015 3kg 420000 3150 5 1/5/2014 1/6/2015 1kg 130000 975 6 5/5/2014 5/6/2015 1.5kg 202500 1518.75 7 5/5/2014 5/6/2015 17.375kg 2405000 20041 8 16/6/2014 16/7/2015 14kg Loan 14000 9 26/6/2014 27/7/2015 20kg Loan 18000 10 18/11/2014 18/6/2015 22kg 122 1875000 15625 11 128 941000 No dividend [70] In respect of SOGA 3, Tranche 1 to 9 are reproductions of SOGA 1 and SOGA 2. For the reasons enumerated above, we find that all the nine (9) transactions are cash loans disguised as sale and purchase of gold, and are therefore void under the MLA. Tranche 10 [71] DC had purchased a portion of this 22kg gold to the value of RM941,000.00 and paid TSM the same in 2 instalments of RM491,000.00 and RM450,000.00 on 18 November 2014 and 31 December 2014 respectively. These two (2) payments can be seen from DC's December 2014 Maybank statement account showing a debit entry of RM491,000.00 on 18 December 2014 and a debit entry of RM450,000.00 on 31 December 2014. [72] These payments are corroborated by TSM's December 2014 Ambank statement showing credit entry of RM491,000.00 on 18 December 2014 and a credit entry of RM450,000.00 on 21 S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 December 2014. This shows that TSM had received the sum of RM941,000.00 from DC. [73] The balance monetised sum of RM1,875,000.00 (RM2,816,000.00 minus RM941,000.00) continued to be loaned to DC subject to monthly interest of RM14,125.00 (interest rate of 9% p.a. on RM1,875,000.00) ("Monetised Loan 10"). For Loan 10, from 28.12.2013 to 18.3.2015, DC had paid to TSM the total interest of RM56,560.00. The evidence of the payment of the interest is supported by the bank statements of DC. [74] The above evidence is supported by the oral evidence of LKG: “DH: Alright, now you explained 9, can you explain item 10 and 11? DW3: … Actually number 10 and 11 is to record 22 kg of gold bars passed to David Choong at that time, towards end on 2014. Therefore the 22 kg, because Tan Sri wants to sell at the price of RM128, meanwhile at that moment, price was still RM122. Then once it hits 128, Tan Sri want to monetize whole bunch of gold. Monetize it. So how come it come to 941? Because the item under no 11, RM941000.00 actually Tan Sri wants to cash out to give to someone. So the loan left of RM1.8m 78 thousand to keep for David Choong. Still in the loan. 941 Tan Sri want to cash to give to someone then the balance 187 thousands keep as a loan. … DH: So Tan Sri had 22 kg of gold. What he wanted to do is to sell at RM128 per gram. S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 DW3: Yes Yang Arif. ….. DH: The total is 1 million 875 thousand plus 941 thousand. How much is that? So the total is RM2 million 816 thousands, correct? DW3: Yes Yang Arif. DH: Of which then he took 941 thousands for himself and he loaned David Choong RM1.875 million? DW3: Yes Yang Arif. DH: And for that 1.875 million he charged interest amount of RM15,625.00 correct? DW3: Yes correct.” ( see RR/encl 11/pages 23-24). Tranche 11 [75] With regards to Tranche 11, this was subsequently omitted from SOGA 4 because this sum was taken by TSM himself as can be seen from the above evidence of LKG. SOGA 4 dated 25 June 2014 [76] SOGA 4 is a restatement of SOGA 1 to SOGA 3, without tranche 11 and shows a total investment of RM6,341,000.00. S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 Tranche Period Maturity Gold Gold Price Amount invest Dividend 1 17/1/2015 17/6/2015 1kg 130000 975 2 27/1/2015 27/6/2015 7kg 945000 7087.5 3 28/1/2015 2/6/2015 3kg 420000 3150 4 2/1/2015 2/6/2015 3kg 420000 3150 5 1/1/2015 1/6/2015 1kg 130000 975 6 5/1/2015 5/6/2015 1.5kg 202500 1518.75 7 5/1/2015 5/6/2015 2405000 20041 Total 4652500 36897.25 8 18/1/2015 18/6/2015 128 1875000 14125 9 17/1/2015 17/6/2015 14kg 129 1806000 15050 10 26/1/2015 26/6/2015 20kg 133 2660000 20166 Total 6341000 49341 [77] For the reasons enumerated above, we are also of the considered opinion that SOGA 4, which is a restatement of SOGA 1 to SOGA 3, is a moneylending business, which is contrary to subsection 5(1) of the MLA. The said loans were camouflaged by way of the SOGA 1 to SOGA 3 and were in truth loans by TSM to DC, repayable with interest. Issues Raised by the Court [78] On 15 December 2022, this Court directed the parties to submit on the following issues: - (i) The Legal definition of "Money"; (ii) If gold is given in physical form and value determined or to be determined at a later date together with a return of investment or S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 Dividend or interest, or given by way of a loan, whether it is contrary to the MLA; and (iii) If a transaction is contrary to the MLA, can the alleged borrower after his unequivocal admission of the debt, raise the issue of illegality to escape the obligation to repay the amount outstanding. [79] With regards to issue (i), it is common ground that ‘Money’ is not defined in the MLA. Therefore, ‘money’ must be given its dictionary meaning. In Black's Law Dictionary, 7th Edition (1999), money is defined as: "Medium of exchange authorized or adopted by a government as part of its currency ...assets that can be easily converted to cash... " [80] In view of the above definition of money, that is, it is a medium of exchange that can be easily converted to cash, we find that the definition of money is wide enough to encompass not only traditional forms of currency but also assets that can be readily converted into cash. This will definitely include gold and cryptocurrencies. [81] On issue (ii), we are of the considered opinion that from the factual matrix of this case, Tranche 7 to 10 were initially in the form of gold bars. However, subsequently the parties agreed that these transactions be converted into cash values (principal loan sum) with interest payments paid on the principal loan sum. Therefore, since the S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 36 gold bars have been converted into cash (monetised) form, then these money loans are caught under the MLA. [82] Added to that, in his letter dated 20 April 2015, TSM had made express reference to a "loan" of RM10,043,500.00 and there was no demand for the return of the gold. As such, we agree with DC that the act of TSM demanding DC to repay the money clearly shows that he did not sell gold to DC. [83] With regards to issue (iii), in the case of Suu Lin Chong v Lee Yaw Seang [1979] 2 MLJ 48, despite there being an admission of monies owed, the Court held that as the moneylending transaction was illegal and void ab initio, and the Court should not allow restitution. [84] Recently, the same matter was raised in the case of Triple Zest Trading & Suppliers & Ors v. Applied Business Technologies Sdn Bhd [2023] 10 CLJ 187, where two (2) of the Questions before the Federal Court are as follows: (i) whether a loan agreement which charges an interest at the rate of 100% within a period of 30 days is legal under the law? (ii) if the answer to question (i) is illegal, whether the court should still assist the moneylender to recover the principal amount lent? [85] Both Questions were answered in the Negative. In the judgment, the Federal Court had cited with approval the following cases: S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 37 “[29] We find as apt the general pronouncements of law made by the Court of Appeal in the following two cases and one by the High Court, although the context and factual matrix of the cases differs in material respects from the present appeal: (i) Ideal Advantage Sdn Bhd v. Perbadanan Pengurusan Palm Spring @ Damansara & Another Appeal [2019] 1 LNS 894; [2020] 4 MLJ 93: Taking the argument on illegality point, it is trite that the effect of any illegal transaction will result in the "loss lies where it falls". A party that suffers loss due to an illegal contract, cannot sue the other contracting party to recover losses. The law will not afford relief to those who claim entitlements from an illegal act. (ii) Dr Mansur Hussain & Ors v. Barisan Tenaga Perancang (M) Sdn Bhd & Ors [2019] 1 LNS 661; [2019] MLJU 1552: Suffice for us to say here that if an agreement is void ab initio for illegality, no restitution can happen. No court will lend its hands to unwind a void agreement that was illegal ab initio by restoring each party to its original position as though the illegal agreement never took place. (iii) Yeow Guang Cheng v. Tang Lee Hiok & Ors [2020] 1 LNS 1696 (affirmed by the Court of Appeal in Tang Lee Hiok & Ors v. Yeow Guang Cheng [2022] 1 LNS 1510): S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 38 To deter unlicensed moneylenders from continuing with their nefarious business, it is in the public interest for unlicensed moneylenders to be deprived of their illegal "principal loan sums", interest and whatever ill- gotten property or benefit enjoyed from their unlawful moneylending business.” [86] Consequently, applying the above cases, we are of the considered opinion that since the SOGAs entered between TSM and DC are contrary to the MLA, they are void ab initio and the effect of such illegal transaction is that the "loss lies where it falls". Therefore, TSM cannot sue DC to recover losses. The law will not afford relief to those who claim entitlements from an illegal act. Conclusion. [87] For the reasons enumerated above, we allow all the three (3) appeals and set aside the decision of the learned High Court Judge. In respect of DC’s appeal in Appeal No. 2155 and 2156, we only allow the prayer on the issue of declaration that the SOGAs are void under the MLA. Since all parties are involved in the illegal transaction, we make an order that parties are to bear their own costs. Dated: 24 November 2023 sgd (AZIZAH BINTI NAWAWI) Judge Court of Appeal, Malaysia S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 39 Parties Appearing: CIVIL APPEAL NO. W-02(NCvC)(W)-2021-10/2021 For The Appellant : Joseph Yeo Tetuan Joseph Yeo For The Respondent : Sivanesan Nadarajah / Leong Pei Xin Tetuan Vicknaraj, R D Ratnam Rajesh Kumar & Assoc CIVIL APPEAL NO. W-02(NCVC)(W)-2155-11/2021 For The Appellant : David Hoh / Cassandra Choo Tetuan Lim & Hoh For Respondent 1 : Sivanesan Nadarajah / Leong Pei Xin Tetuan Vicknaraj, R D Ratnam Rajesh Kumar & Assoc. For Respondent 2 : Hafizah Johor Binti Ariff Johor JABATAN INSOLVENSI MALAYSIA CIVIL APPEAL NO. W-02(NCvC)(W)-2156-11/2021 For The Appellant : David Hoh / Cassandra Choo Tetuan Lim & Hoh S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal 40 For The Respondent : Sivanesan Nadarajah / Leong Pei Xin (Tetuan Vicknaraj, R D Ratnam Rajesh Kumar & Assoc) Legislations: 1. Moneylenders Act 1951 2. Contracts Act 1950 Cases: 1. Goh Gin Chye & Anor v. Peck Teck Tian Realty Pte Ltd & Anor [1987] 1 LNS 33 2. Addiscombe Garden Estates Ltd and Anor v Crabbe and Ors [1958] 1 QB 513 3. In Ngui Mui Khin & Anor v. Gillespie Bros & Co Ltd [1979] 1 LNS 60; [1980] 2 MLJ 9 4. Suu Lin Chong v Lee Yaw Seang [1979] 2 MLJ 48 5. Triple Zest Trading & Suppliers & Ors v. Applied Business Technologies Sdn Bhd [2023] 10 CLJ 187 6. Ideal Advantage Sdn Bhd v. Perbadanan Pengurusan Palm Spring @ Damansara & Another Appeal [2019] 1 LNS 894; [2020] 4 MLJ 93 7. Dr Mansur Hussain & Ors v. Barisan Tenaga Perancang (M) Sdn Bhd & Ors [2019] 1 LNS 661; [2019] MLJU 1552 8. Yeow Guang Cheng v. Tang Lee Hiok & Ors [2020] 1 LNS 1696 9. Tang Lee Hiok & Ors v. Yeow Guang Cheng [2022] 1 LNS 1510 S/N utvPeGKFoUiedTGTy/VF9g **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

BL-11B-2-03/2023

PERAYU PAN MALAYAN LOGISTICS SDN BHD RESPONDEN YL SMELTING SDN BHD

- Plaintif kemudian memaklumkan kepada En. Jeffery yang memberikan representasi bahawa hartanah itu adalah milik Defendan bahawa Plaintif berminat untuk menyewa hartanah tersebut- Plaintif telah melaksanakan Tawaran Untuk Menyewa tersebut dan telah membayar sebanyak RM 77,985.00 melalui cek sebagai ‘earnest deposit’- Defendan telah menyediakan satui draf perjanjian penyewaan (“draf tersebut”) dan sesalinan telah diserahkan kepada Plaintif dan ejen hartanah melalui emel. Hanya pada masa tersebut, Plaintif mengetahui Defendan bukan pemilik kepada hartanah tersebut- Defendan menafikan memberikan sebarang representasi melalui En Jeffery bahawa Defendan adalah pemilik hartanah tersebut- Pihak-pihak telah secara sukarela memasuki dan menandatangani Tawaran Untuk Menyewa da terdapatnya balasan yang sah iaitu bayaran ‘earnest deposit’ yang dibuat kepada Defendan- Plaintif tidak pernah memplidkan bahawa terdapatnya salahnyataan di sini tetapi Defendan mengakui bahawa terdapatnya representasi bahawa mereka bukanlah pemilik sebenar hartanah tersebut

28/11/2023

YA Puan Norliza Binti Othman

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=c06e2998-721d-4080-b7cf-015b737fbabe&Inline=true

1 DALAM MAHKAMAH TINGGI MALAYA DI KLANG DALAM NEGERI SELANGOR DARUL EHSAN RAYUAN SIVIL NO. BL-11B-2-03/2023 ANTARA PAN MALAYAN LOGISTICS SDN BHD PERAYU DAN YL SMELTING SDN BHD RESPONDEN [DALAM MAHKAMAH MAJISTRET DI KLANG] GUAMAN SIVIL NO.: BL-A72-1-01/2022 YL SMELTING SDN BHD PLAINTIF DAN PAN MALAYAN LOGISTICS SDN BHD DEFENDAN ALASAN PENGHAKIMAN Ini adalah rayuan oleh Perayu terhadap keputusan Majistret pada 24.2.2023 yang membenarkan tuntutan Responden dengan kos mengikut skala. Pihak-pihak akan dirujuk seperti mana kedudukan mereka di Mahkamah Majistret. 28/11/2023 11:30:01 BL-11B-2-03/2023 Kand. 18 S/N mCluwB1ygEC3zwFbc36vg **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 A. LATAR BELAKANG [1] Pada 22.9.2021, Plaintif telah membuat satu lawatan ke PT 522, Jalan Sultan Mohamed 1, Kawasan Perindustrian Bandar Sultan Suleiman, 42000 Port Klang Selangor (“hartanah tersebut”), dalam kehadiran En. Jeffery salah seorang pengarah Defendan. [2] Plaintif kemudian memaklumkan kepada En. Jeffery yang memberikan representasi bahawa hartanah itu adalah milik Defendan bahawa Plaintif berminat untuk menyewa hartanah tersebut. Defendan kemudian telah melantik ejen hartanah untuk menyediakan Tawaran Untuk Menyewa agar Plaintif dapat menyewa hartanah tersebut. [3] Pada 29.9.2021, Plaintif telah melaksanakan Tawaran Untuk Menyewa tersebut dan telah membayar sebanyak RM77,985.00 melalui cek sebagai ‘earnest deposit’ kepada ejen hartanah tersebut. Pada 1.10.2021, Defendan telah menerima dan menandatangani Tawaran Untuk Menyewa tersebut. Menurut Tawaran Untuk Menyewa, Plaintif telah melaksanakan Tawaran Untuk Menyewa dalam kapasiti sebagai penyewa dan Defendan melaksanakan Tawaran Untuk Menyewa dalam kapasiti sebagai pemilik. S/N mCluwB1ygEC3zwFbc36vg **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 [4] Antara terma penting dalam Tawaran tersebut adalah: “Clause 3: In the event that after the acceptance, the transaction is aborted by the Landlord through no fault of the Tenant, the Landlord shall within three (3) days refund the full Earnest Deposit plus an amount equal amount as liquidated damages. Clause 6 : Upon conformation of these Offer and Acceptance, this document shall form a legal and binding contract pending the execution of a formal Tenancy Agreement, incorporating the main terms and conditions stated above in addition to other terms and conditions. Clause 7 : Time is the essence of this agreement. [5] Pada sekitar Oktober 2021, Defendan telah menyediakan satui draf perjanjian penyewaan (“draf tersebut”) dan sesalinan telah diserahkan kepada Plaintif dan ejen hartanah melalui e-mel. Hanya pada masa tersebut, Plaintif mengetahui Defendan bukan pemilik kepada hartanah tersebut. Pemilik hartanah tersebut adalah Time It In E Sdn. Bhd. (“pemilik sebenar”). Plaintif kemudian memberikan cadangan kepada Defendan untuk mengeluarkan satu surat kepada pemilik sebenar untuk mendapatkan kebenaran dari mereka untuk S/N mCluwB1ygEC3zwFbc36vg **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 mengubah terma-terma yang terkandung didalam Perjanjian Penyewaan antara pemilik sebenar dan Defendan serta memberi notifikasi untuk sublet hartanah tersebut dan cadangan ini diterima oleh Defendan. [6] Pada 18.10.2021, Defendan memaklumkan kepada Plaintif bahawa Defendan gagal untuk mendapatkan kebenaran untuk mendapatkan kebenaran daripada pemilik sebenar untuk melaksanakan cadangan di atas dan Defendan juga memaklumkan tidak berupaya untuk meneruskan Tawaran Untuk Menyewa tersebut. Defendan telah memulangkan semula “Earnest Deposit” tersebut kepada Plaintif melalui ejen hartanah. [7] Plaintif kemudian mendakwa Defendan telah memungkiri Tawaran Untuk Menyewa tersebut kerana gagal memberi penzahiran penuh bahawa Defendan bukan pemilik sebenar hartanah tersebut. Oleh itu, berdasarkan terma dalam Tawaran tersebut, Defendan telah bersetuju untuk membayar ‘liquidated damages’ berjumlah RM77,985.00 dan Defendan telah gagal membayarnya. S/N mCluwB1ygEC3zwFbc36vg **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 [8] Tuntutan Plaintif disini adalah selaras dengan Klausa 3 untuk menuntut ‘liquidated damages’ yang gagal dijelaskan oleh Defendan. B. PEMBELAAN DEFENDAN [9] Defendan menafikan memberikan sebarang representasi melalui En. Jeffery bahawa Defendan adalah pemilik hartanah tersebut dan Plaintif mengetahui bahawa Defendan hanyalah penyewa di hartanah tersebut. [10] Ejen hartanah itu bukan dilantik oleh En. Jeffery. Ejen hartanah itu yang menghubungi En. Jeffery melalui telefon sebelum 22.9.2021, memaklumkan bahawa dia mempunyai orang yang berminat untuk menyewa hartanah tersebut. Defendan menegaskan ejen hartanah tersebut adalah ejen Plaintif. [11] Tawaran Untuk Menyewa yang dimasuki oleh Plaintif dan Defendan adalah satu perjanjian untuk memasuki satu kontrak disisi undang- undang dan fakta walaupun terdapat terma-terma yang bertentangan dengan prinsip undang-undang berkaitan dengan suatu perjanjian untuk memasuki suatu kontrak. S/N mCluwB1ygEC3zwFbc36vg **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 [12] Oleh itu, ianya tidak mengikat pihak-pihak disisi undang-undang dan fakta memandangkan terdapat terma-terma utama lain yang masih perlu dirunding, diperhalusi dan dipersetujui didalam Perjanjian Penyewaan bertulis dan Tawaran Untuk Menyewa tersebut adalah tertakluk kepada suatu Perjanjian Penyewaan bertulis yang perlu ditandatangani oleh pihak-pihak. [13] Bayaran RM77,985.00 yang dibayar oleh Plaintif kepada ejen hartanah tersebut bukan untuk Defendan kerana ejen hartanah itu bukan ejen Defendan tetapi ejen Plaintif. Defendan menegaskan tiada sebarang balasan bergerak antara Plaintif dan Defendan semasa Tawaran Untuk Menyewa ditandatangani oleh pihak-pihak. Tawaran Untuk Menyewa tersebut bukan merupakan satu perjanjian yang sah dan/ atau mengikat kerana tiada balasan yang sah atau sempurna. [14] Tawaran Untuk Menyewa tersebut adalah tidak sah disisi undang- undang kerana tidak disempurnakan mengikut kehendak Seksyen 66(2)(a) Akta Syarikat 2016. Perjanjian Penyewaan bertulis seharusnya ditandatangani dalam tempoh 20 hari berkerja. Adalah satu syarat tersirat bahawa perjanjian pernyewaan hanya akan S/N mCluwB1ygEC3zwFbc36vg **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 dilaksanakan sekiranya semua terma-terma pernyewaan telah dipersetujui oleh pihak-pihak. [15] Defendan menegaskan telah mendedahkan kepada Plaintif bahawa Defendan bukan pemilik sebenar hartanah tersebut didalam draf perjanjian penyewaan itu. Apabila mengetahui perkara ini, Plaintif telah mencadangkan kepada Defendan suatu kebenaran bertulis harus diperolehi terlebih dahulu daripada pemilik hartanah tersebut sebelum perjanjian penyewaan ditandatangani dan ini dipersetujui oleh Defendan. [16] Defendan memplidkan sekiranya Tawaran Untuk Menyewa tersebut adalah sah dan mengikat, sifat Tawaran Untuk Menyewa telah berubah kepada suatu perjanjian bersyarat yang mana persetujuan bertulis harus diperolehi terlebih dahulu daripada pemilik sebenar sebelum perjanjian penyewaan ditandatangani. Pihak-pihak juga bersetuju secara nyata atau tersirat, sekiranya pra syarat tersebut tidak dipenuhi, maka hartanah tersebut tidak boleh disewakan kepada Plaintif dan Plaintif tidak boleh menuntut sebarang amaun dibawah Klausa 3 Tawaran Untuk Menyewa tersebut. S/N mCluwB1ygEC3zwFbc36vg **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 [17] Pemilik hartanah tersebut tidak memberikan persetujuannya kerana tidak bersetuju dengan tujuan penggunaan hartanah tersebut oleh Plaintif. Semasa rundingan terma-terma perjanjian penyewaan, Plaintif telah mencadangkan untuk menukar tempoh penyewaan dari 2 tahun kepada 3 tahun yang dipersetujui oleh Defendan tetapi tertakluk kepada persetujuan pemilik sebenar. Namun begitu, melalui surat bertarikh 14.10.2021, pemilik sebenar tidak bersetuju dengan terma ini. Oleh itu, Defendan memplidkan cadangan Plaintif untuk menukar terma tempoh penyewaan menunjukkan pihak-pihak secara nyata atau tersirat bahawa Tawaran Untuk Menyewa tersebut sekiranya sah, tidak lagi mengikat pihak-pihak. [18] Defendan seterusnya menyatakan oleh kerana kebenaran bertulis daripada pemilik sebenar hartanah tidak diperolehi, maka Defendan tidak berkewajipan disisi undang-undang dan fakta untuk meneruskan dengan penyewaan hartanah tersebut kepada Plaintif dan Defendan tidak berkewajipan untuk membayar apa jua tuntutan Plaintif berkaitan dengan terma-terma dibawah Tawaran Untuk Menyewa tersebut. S/N mCluwB1ygEC3zwFbc36vg **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 [19] Defendan juga menegaskan bahawa Plaintif tidak berada didalam keadaan yang membolehkan mereka menyewa hartanah tersebut kerana Plaintif masih belum menerima apa-apa pengesahan daripada Majlis Perbandaran Klang bahawa hartanah tersebut sesuai untuk digunakan sebagai ‘manufacturing aluminium ingots and car wheels’ yang mana proses ini juga melibatkan ‘smelting alloy and aluminium’. C. KEPUTUSAN MAHKAMAH [20] Keputusan yang dibuat oleh Majistret pada 24.2.2023 adalah selepas satu perbicaraan penuh dimana Plaintif telah mengemukakan 2 orang saksi dan Defendan seorang saksi. Mahkamah yang menjalankan bidang kuasa rayuan akan berhati- hati untuk campurtangan didalam dapatan Majistret yang dibuat selepas perbicaraan penuh kerana kelebihan beliau meneliti keterangan saksi-saksi secara langsung dan juga melihat kepada ‘demeanor’ saksi-saksi tersebut ketika memberi keterangan. Mahkamah ini hanya akan mengganggu dapatan Majistret yang menjalankan perbicaraan penuh seandainya dapatan beliau berasaskan peruntukan undang-undang dan prosedur yang salah, Ini selaras seperti yang diperjelaskan oleh Mahkamah Rayuan S/N mCluwB1ygEC3zwFbc36vg **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 didalam kes UMW Motor Sdn Bhd & Anor v Allan Chong Teck Hin [2021] 5CLJ 193 “Principles of Appellate Intervention [28] Foremost on our minds are the two tests, namely, “plainly wrong test” and “insufficient judicial appreciation of evidence” test for appellate interference in subordinate court’s findings. In respect of the two tests, the Court of Appeal held as follows in Lee Eng Chin & Ors v Gan Yook Chin & Anor [2003] 2CLJ 19; [2003] 2 MLJ 97 at pp.90 to 99: (2) Generally, an appellate court will not intervene unless the trial court was shown to be plainly wrong in arriving at its decision or where there had been no or insufficient judicial appreciation of evidence. Judicial appreciation of evidence meant that a judge who was 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 evidence. Where contemporaneous documents existed, he must test the oral evidence of a witness against these. He must also test the evidence of a particular witness against this. He must also test the evidence of a witness against the probabilities of the case. The principle central to appellate interference is that a decision arrived by a trial court without judicial appreciation of the evidence may be set aside on appeal. [29] The Court of Appeal has reiterated in Ong Chiou & Anor v Keller (M) Sdn Bhd & Ors & anor appeal [2019] 1LNS26; [2019] 3MLRA 322 at pp 329 that:- (25) We are mindful of the limited role of the appellate court in relations to the findings of court made by the court of first instance. The general principle is that the conclusion of a trial judge is a finding S/N mCluwB1ygEC3zwFbc36vg **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 of fact on the oral evidence based on the demeanour and credibility of the finding ought not to be disturbed unless the appellate court is convinced that it is plainly wrong. It would not be sufficient to warrant an appellate court interference merely because the appellate court entertains doubt whether such finding is right. (see: Lee Ing Ching Ors v Gan Yook Chin & Anor [2003]2CLJ 19, [2003] 1 MLRA 95. Gan Yook Chin & Anor v Lee Ing Chin Ors [2004] 4 CLJ 309, [2004] 2 MLRA 1). [21] Untuk Mahkamah ini melihat samada Majistret telah menggunakan budibicara kehakimannya dengan betul, Mahkamah akan melihat kepada alasan penghakiman yang disediakan dan juga rekod-rekod rayuan termasuk hujah pihak-pihak. ISU 1 - ADAKAH TAWARAN UNTUK MENYEWA BERTARIKH 29.92021 ITU SATU KONTRAK SAH DAN MENGIKAT PIHAK- PIHAK? [22] Plaintif menegaskan ianya satu kontrak yang sah dan mengikat pihak-pihak manakala Defendan mengatakan Tawaran Untuk Menyewa itu tidak sah dan tidak mengikat pihak-pihak kerana terdapat pra syarat yang perlu dipatuhi iaitu kebenaran daripada pemilik sebenar hartanah tersebut. Majistret dalam memutuskan bahawa Tawaran Untuk Menyewa itu adalah sah dan mengikat pihak-pihak telah merujuk kepada dokumen itu sendiri. Beliau S/N mCluwB1ygEC3zwFbc36vg **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 merujuk kepada Seksyen 10 Akta Kontrak 1950 yang memperuntukkan: “ All agreements are contract if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object and not hereby expressly declared to be void”. [23] Berdasarkan keterangan saksi-saksi, Majistret mendapati pihak- pihak telah secara sukarela memasuki dan menandatangani Tawaran Untuk Menyewa da terdapatnya balasan yang sah iaitu bayaran ‘earnest deposit’ yang dibuat kepada Defendan. Selain itu Klausa 6 Tawaran Untuk Menyewa memperuntukkan : “ Upon confirmation of these offer and acceptance, this document shall form a legal and binding contract pending the execution of a formal tenancy agreement ,incorporating the main terms and conditions stated in the above in addition to other terms and conditions”. [24] Majistret telah merujuk kepada satu otoriti yang menjelaskan keadaan bagaimana satu kontrak boleh mengikat pihak-pihak dalam keadaan satu perjanjian formal belum dilaksanakan. Kes yang dirujuk adalah Deutsche Bank (Malaysia) Bhd v MBF Holdings Bhd & Anor [2015] MLJU 534: “[31] On appeal, the first question was whether the memorandum constituted a binding contract. Dixon CJ, Mc Tiernon and Kitto JJ, S/N mCluwB1ygEC3zwFbc36vg **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 observed that all essentials of the contract – the parties were agreed that there should be a sale and purchase, and the parties, the property, the price, and the date for possession were all clearly settled - were there ‘but whether there is a contract depends upon the meaning and effect of the final sentence of the memorandum”. Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three cases. It may be one of which the parties have reach finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no depart from or addition to that which their agreed terms express or imply, nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which, the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract”. [25] Majistret membuat dapatan bahawa Tawaran Untuk Menyewa itu ditandatangani dengan kerelaan pihak-pihak apabila SD1 sendiri mengesahkannya. Pihak-pihak bersetuju melalui Klausa 6 itu S/N mCluwB1ygEC3zwFbc36vg **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 sendiri sehingga suatu perjanjian penyewaan bertulis ditandatangani dokumen yang mengikat pihak-pihak adalah Tawaran Untuk Menyewa ini dan tiada dokumen lain. ISU 2 - ADAKAH TAWARAN UNTUK MENYEWA MENJADI TIDAK MENGIKAT PIHAK-PIHAK KERANA PLAINTIF MENCADANGKAN TERMA BARU [26] Majistret membuat dapatan walaupun Plaintif membuat cadangan baru untuk terma perjanjian penyewaan bertulis, ianya tidak menjadikan Tawaran Untuk Menyewa tidak mengikat pihak-pihak. Majistret didalam alasan penghakimannya, ianya juga sekadar draf dan apa-apa terma yang dinyatakan didalamnya samada masih diperingkat cadangan ataupun didalam perbincangan yang boleh dipinda pada bila-bila masa sebelum sesuatu perjanjian itu dimuktamadkan. Kembali kepada Klausa 6 sehingga terdapatnya suatu perjanjian bertulis yang berkuatkuasa, maka Tawaran Untuk Menyewa ini sah dan mengikat pihak-pihak. Majistret juga memutuskan Defendan gagal menunjukkan samada cadangan pindaan terma (dalam konteks ini tempoh penyewaan dari 2 tahun kepada 3 tahun) telah mengubah terma didalam Tawaran Untuk Menyewa dan sekaligus menjadikan ianya tidak mengikat pihak- pihak. S/N mCluwB1ygEC3zwFbc36vg **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 ISU 3 - ADAKAH TERDAPATNYA SALAH NYATAAN DI PIHAK DEFENDAN BERKENAAN PEMILIK SEBENAR PREMIS? [27] Majistret mengakui bahawa Plaintif tidak pernah memplidkan bahawa terdapatnya salahnyataan disini tetapi Defendan mengakui bahawa terdapatnya representasi bahawa mereka bukanlah pemilik sebenar hartanah tersebut. Plaintif setelah mendapat tahu bahawa Defendan bukan pemilik sebenar hartanah itu, telah meminta Defendan mendapatkan kebenaran dari pemilik sebenar berkenaan urusan penyewaan hartanah tersebut. [28] Cadangan Plaintif untuk menukar tempoh penyewaan hartanah itu dan meminta Defendan membawa cadangan ini kepada pemilik sebenar tidak mengubah apa-apa terma lain didalamnya. Majistret berpendapat ini adalah niat baik di pihak Plaintif untuk memaklumkan kepada pemilik sebenar akan hasrat mereka didalam memasuki perjanjian penyewaan bertulis itu. Majistret adalah betul apabila memutuskan cadangan untuk Defendan mendapatkan kebenaran dari pemilik sebenar bukan satu pra syarat kerana fakta bahawa Defendan bukan pemilik sebenar hartanah tersebut tidak diketahui oleh Plaintif sebelum dari mereka menandatangani Tawaran Untuk Menyewa. Plaintif hanya mengetahui kedudukan tentang pemilik sebenar hartanah tersebut S/N mCluwB1ygEC3zwFbc36vg **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 adalah selepas pihak-pihak menandatangani Tawaran Untuk Menyewa dan ketika penyediaan draf perjanjian penyewaan. Oleh itu Plaintif tidak boleh dipersalahkan seandainya perjanjian penyewaan itu tidak dilaksanakan atas isu ini. ISU 4 - ADAKAH PLAINTIF BERHAK KEPADA TUNTUTAN GANTIRUGI? [29] Majistret membenarkan tuntutan gantirugi selaras dengan Klausa 3 Tawaran Untuk Menyewa tersebut. Klausa 3 memperuntukkan: “ In the event that after acceptance, the transaction is aborted by the Landlord through no fault of the Tenant, the Land lord shall within three (3) days refund the full Earnest Deposit plus an equal amount as liquidated damages’ Oleh itu, berdasarkan Klausa 3 ini, Plaintif berhak untuk menuntut gantirugi; ini menurut Majistret selaras dengan Seksyen 75 Akta Kontrak 1950. [30] Defendan telah tidak melaksanakan Tawaran Untuk Menyewa itu dan memilih untuk meninggalkan (abort) perjanjian itu dan memilih untuk memulangkan kembali ‘earnest deposit’ dibawah Klausa 3 tetapi enggan membayar gantirugi yang datang bersamanya. Ini bukan pilihan kepada Defendan untuk memilih yang mana dia S/N mCluwB1ygEC3zwFbc36vg **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 hendaklah lakukan. Klausa 3 tidak mempunyai sebarang opsyen untuk Defendan apabila melibatkan gantirugi. D. KESIMPULAN [31] Kesimpulannya, berdasarkan alasan-alasan diatas, Mahkamah ini memutuskan untuk menolak rayuan Perayu dan mengekalkan keputusan Majistret dengan kos sebanyak RM10,000.00. Bertarikh 26 Jun 2023 t.t. (NORLIZA BINTI OTHMAN) HAKIM MAHKAMAH TINGGI MALAYA KLANG BAGI PIHAK PERAYU : Tetuan BB The No. 22-2, Jalan Telawi 2 Bangsar Baru 59100 Kuala Lumpur BAGI PIHAK RESPONDEN : Tetuan Choo Dee W E-17-3, Menara Suezcap 2, KL Gateway 2, Jalan Kerinchi, 59200 Kuala Lumpur S/N mCluwB1ygEC3zwFbc36vg **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

W-02(NCvC)(W)-2156-11/2021

PERAYU DAVID CHOONG JIN CHAI RESPONDEN TAN SRI DATO' SERI DR M MAHADEVAN A/L MAHALINGAM

Moneylenders Act 1951 (MLA) - gold investments - inducements & misrepresentation - Sale of Gold Agreements (SOGA's) - disguised transactions of money lending - void ab initio - admission of indebtedness - cash loans - authenticity & credibility - illegal transaction

28/11/2023

YA Datuk Hajah Azizah binti Haji NawawiKorumYA Datuk Hanipah Binti FarikullahYA Datuk Hajah Azizah binti Haji NawawiYA Datuk S. Nantha Balan A/L E.S. Moorthy

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=33600611-71a3-4f06-8c82-4f3b8cd99290&Inline=true

1 CIVIL APPEAL NO. W-02(NCvC)(W)-2021-10/2021 BETWEEN LEE KUANG GEN … APPELLANT AND TAN SRI DATO' SERI DR M MAHADEVAN A/L MAHALINGAM … RESPONDENT CIVIL APPEAL NO. W-02(NCvC)(W)-2155-11/2021 BETWEEN DAVID CHOONG JIN CHAI … APPELLANT AND 1. TAN SRI DATO' SERI DR M MAHADEVAN A/L MAHALINGAM 2. LETCHUMANAN A/L S. RAJOO … RESPONDENTS CIVIL APPEAL NO. W-02(NCvC)(W)-2156-11/2021 BETWEEN DAVID CHOONG JIN CHAI … APPELLANT AND TAN SRI DATO' SERI DR M MAHADEVAN A/L MAHALINGAM … RESPONDENT 28/11/2023 16:38:42 W-02(NCvC)(W)-2156-11/2021 Kand. 100 S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 CORAM HANIPAH BINTI FARIKULLAH, JCA AZIZAH BINTI NAWAWI, JCA S. NANTHA BALAN, JCA JUDGMENT Introduction [1] There are 3 (three) appeals before us arising from two (2) separate Suits. [2] In Civil Suit No: 22NCVC-479-09/2015 (“Suit 2015”), David Choong (“DC”) had sued Tan Sri Dato' Seri Dr M Mahadevan a/I Mahalingam (“TSM”) and 9 Others seeking, inter alia, a declaration that TSM had illegally loaned monies to DC in ten (10) transactions which are unlawful and unenforceable under the Moneylenders Act 1951 (“MLA”). [3] In Civil Suit No: 22NCVC-95-02/2017 (“Suit 2017”), TSM had sued DC and Lee Kuang Gen (“LKG”) for collusion by way of inducement, misrepresentation and false promises of handsome returns of gold investments, and causing TSM to enter into the Sale of Gold Agreements (“SOGAs”) with DC amounting to RM10,493,500.00. TSM’s claim is for the return of the said sum of RM10,493,500.00. S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 [4] DC filed a Counterclaim in Suit 2017 seeking a declaration that all of TSM's 10 loans to DC are in contravention of the MLA and are therefore illegal and/or void ab initio, an injunction to restrain TSM and his servants and agents from harassing, assaulting, threatening or committing any act to injure DC and his businesses and for general damages. [5] After a full trial, the learned Judge has allowed Suit 2017. LKG had filed an appeal in Appeal No. W-02(NCvC)(W)- 2021-10/2021 (“Appeal 2021”) and Appeal No. W- 02(NCvC)(W)-2155-11/2021 (“Appeal 2155”) was filed by DC. [6] The learned Judge had also dismissed Suit 2015, and this is the subject matter of Appeal No. W-02(NCvC)(W)-2156- 11/2021 (“Appeal 2156”) by DC. The Salient Facts [7] In or about July 2013, LKG had introduced DC to TSM for the sale of gold bars by TSM. In respect of these transactions, the gold bars were sold and the proceeds of the sale were deposited into the bank account of the TSM. [8] Between November 2013 to January 2015, TSM had entered into the following SOGAs with DC to sell/invest in gold ingots to the value of RM10,993,500.00. TSM’s position is that he S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 had transferred the gold to the said value to DC based on the following agreements: (i) SOGA 1 dated 17 November 2013; (ii) SOGA 2 dated 25 June 2014; (iii) SOGA 3 dated 25 June 2014; and (iv) SOGA 4 dated 9 January 2015. [9] The said SOGAs are the subject matter of both suits. [10] Parties have also signed four (4) documents, titled “Letter Verifying and Confirming Transfer of Gold Bullions” (Exhibits D5, D44 and D45). These documents are to show that the gold bullion was transferred to DC, who is described as the purchaser, from TSM, who is described as the vendor. [11] In early 2015, TSM had requested that DC return the sum of RM2,000,000.00 and USD2,000,000.00. [12] By a letter dated 20.4.2015, TSM requested DC to pay the sum of RM10,043,500.00. DC did not make the payment. [13] On 2 September 2015, DC filed Suit 2015. [14] On 21 February 2017, TSM Suit 2017. S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 Decision of the High Court [15] The core issue before the learned High Court Judge was whether the SOGAs entered between DC and TSM are for the sale of the gold bullions or disguised transactions of money lending. [16] Before the learned Judge, DC took the position that the loan agreements were disguised as the SOGA, but were essentially money lending arrangements, where the loan was portrayed as an investment and the interests as dividends. On the contrary, TSM contends that the transactions between him and DC did not involve money lending transactions but investments of gold and are therefore not prohibited by the MLA. [17] Having considered the evidence, the learned Judge made a finding that there was a clear admission of indebtedness towards a settlement by DC to TSM. The undisputed sequence of events culminating in the sale of the gold are consistent with the fact that the gold transactions are actually agreements for the sale of gold. The learned Judge also held that the evidence clearly shows that both DC and LKG were from the outset, and were at all material times, fully aware that the agreements were for the sale of gold. [18] The learned Judge also made a finding that DC had failed to prove on the balance of probabilities that TSM had carried on S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 a moneylending business. As such, the learned Judge held that sections 5(1) and 15 of the MLA do not apply to the gold transactions under the SOGAs. [19] As against LKG, the learned Judge held that the indemnity letter dated 2 July 2015 was signed by LKG voluntarily and that the terms of the indemnity letter are valid and enforceable against him. In the said indemnity letter, LKG had explicitly committed to indemnify TSM “completely against all repercussions and liabilities, regardless of their nature, directly stemming from or connected to the mentioned investment", that is, the gold investment. Our Decision [20] The only issue before us is whether the transacted sum of RM10,043,500.00 was pursuant to the SOGAs or was it a disguise for money lending and is therefore subject to the provisions of the MLA. Whether the SOGAs were genuine agreements for the sale of the gold SOGA 1 dated 17 November 2014 [21] The terms in the SOGAs, between TSM as the vendor, and DC as the purchaser for the sale of the gold, inter alia, are as follows (see SOGA 1 dated 17 November 2014): S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 “SALE OF GOLD An Agreement made this 17th November 2014 Between M Mahadevan a/l Mahalingam (I/C No. 290909-14-5467) (hereinafter called the Vendor) on the one part and David Choong Jin Chai (I/C No. 831111-14-6369) of No. 27, Jalan Setiabakti 8, Bukit Damansara, 50490 Kuala Lumpur (hereinafter called the Purchaser) on the other part. WHEREAS A. The Vendor is the proprietor/owner of gold products of 99.99% which shall be ninety nine point ninety nine percent (99.99%) gold purity (the “said Gold”). B. The Vendor is desirous of selling the said Gold to the Purchaser and the Purchaser has agreed to purchase the same on terms and conditions hereinafter set forth. NOW IT IS HEREBY AGREED as follows: - 1. In consideration of the sum of Ringgit Malaysia One Only (RM1.00) now paid by the Purchaser to the Vendor, the receipt whereof the Vendor hereby acknowledges, the Vendor hereby agrees to sell the said Gold at a below table (hereinafter referred to as the Purchase Price). 2. The balance of the Purchase Price as per below table shall be payable by the Purchaser to the Vendor on or before 5 Dec 2014 (Completion Date) 3. Tranche Period Maturity Gold Gold Price Amount invest Dividend 1. 17/5/2014 17/6/2014 1kg 130,000 975 2. 27/5/2014 27/6/2014 7kg 945,000 7087.5 3. 20/5/2014 28/6/2014 3kg 420,000 3150 S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 Tranche Period Maturity Gold Gold Price Amount invest Dividend 4. 2/5/2014 2/6/2014 3kg 420,000 3150 5. 1/5/2014 1/6/2014 1kg 130,000 975 6. 5/5/2014 5/6/2014 1.5kg 202,500 1518.75 4. Upon payment of the balance of the Purchase Price by the Purchaser to the Vendor within the stipulated period by cash or bankers draft, the Vendor shall deliver the said Gold to the Purchaser. 5. ……” [22] TSM had explained that the sale of gold transactions under the SOGAs to be as follows: (i) the gold transaction is carried out whereby DC takes possession of the gold belonging to TSM and enters into the SOGA for the purchase of the gold; (ii) the purchase price for the gold to be paid by DC to TSM is fixed at the date of the agreement, but the purchase price is to be paid at a future date; and (iii) pending the payment of the full purchase price, DC is to pay a fixed sum calculated on the purchase price and this fixed sum is paid to TSM on a monthly basis until the completion of the sale, when the full purchase price of the gold is paid to TSM on the date stated in the agreement. S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 [23] Therefore, from the evidence in chief of TSM, DC is supposed to pay for the gold transactions under SOGA 1 to TSM at a fixed sum on a monthly basis until the full purchase price is paid. [24] However, learned counsel for the Appellant/DC took the position that Tranche 1 to Tranche 6 of SOGA 1 are not investments, but are cash loans given by TSM to DC whilst the dividends are actually interests over the said loans which DC had to pay. [25] DC had submitted that from August 2013 to September 2013, TSM had continuously loaned cash monies to DC on 6 occasions totalling RM2,247,500.00 with interest charged for each and paid by DC to TSM. These cash loans are as follows: (i) On 17.9.2013, TSM remitted from his Ambank Account into DC's MBB Account No: 514730104186 the principal cash sum of RM130,000.00 as a cash loan (see exhibit D17/encl 12/pdf pg 157) (cash loan 1); (ii) On 27.8.2013, TSM remitted from his Ambank Account into DC's MBB Account No: 514721053886 the principal cash sum of RM945,000.00 as a loan (see Exhibit D-18/encl 12/pdf pg 155) (cash loan 2); S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 (iii) On 28.8.2013, TSM remitted from his Ambank Account into DC's MBB Account No: 514721053886 the principal cash sum of RM420,000.00 as a loan (cash loan 3); (iv) On 30.8.2013, TSM remitted from his Ambank Account into DC's MBB Account No: 514721053886 the principal cash sum of RM420,000.00 as a loan (cash loan 4); (v) On 30.9.2013, TSM remitted from his Ambank Account into DC's MBB Account No: 514730104186 the principal sum of RM130,000.00 as a loan(see Exhibit D19/encl 12/pdf pg 158) (cash loan 5); and (vi) On 5.9.2013, TSM remitted from his Ambank Account into DC's MBB Account No: 514730104186 the principal sum of RM202,500.00 as a loan (see Exhibit D20/encl 12/pdf pg 156) (cash loan 6). [26] The total six (6) principal cash loans stated above amount to RM2,247,500.00, broken down as follows: 1. Cash Loan 1 = RM 130,000.00 2. Cash Loan 2 = RM 945,000.00 3. Cash Loan 3 = RM 420,000.00 4. Cash Loan 4 = RM 420,000.00 5. Cash Loan 5 = RM 130,000.00 6. Cash Loan 6 = RM 2022500.00 RM2,247,500.00 S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 [27] It is to be noted that the Cash Loan 1 to 6, corresponds with the amount invested in Tranche 1 to 6 of SOGA 1. [28] We are of the considered opinion and we agree with the Appellant / DC that the above Cash Loans 1 to 6, which are Tranche 1 to 6 of SOGA 1, are transfers of cash from TSM to DC, and these are supported by the bank documents, in the form of Remittance Form, TSM Bank Statement and DC’s Bank Statements. [29] For Cash Loan 1, the said loan is supported by the following documents to show the transaction of RM130,000.00 from TSM to DC: (i) TSM's Ambank TT Remittance Application Form (dated 17.9.2013). This form is evidence of the transfer of RM130,000.00 from TSM to DC. This form was signed by TSM as the Applicant to transfer the said sum to the beneficiary, DC; (ii) TSM's Ambank 2013 Statement (showing 17.9.2013 Debit entry of RM130,000.00). TSM’s 2013 bank statement from Ambank clearly records a debit entry of RM130,000.00 on 17 September 2013, to correspond to the transfer to DC’s account; and S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 (iii) DC Maybank 2013 Statement (showing 17.9.2013 credit entry of RM130,000.00). DC’s September 2013 bank statement from Maybank has confirmed the credit entry of RM130,000.00 on 17 September 2013, which confirmed the transaction. This credit entry in the Maybank statement confirms that the funds were successfully received by DC from TSM. [30] For Cash Loan 2, TSM's Ambank TT Remittance Application Form (dated 27.8.2013) evidences a transfer of RM945,004.00 (including a RM4.00 fee) from TSM to DC, signed by TSM as the transfer applicant. This transfer is supported by TSM's Ambank 2013 Statement, which shows a Debit entry of RM945,000.00 on 27 August 2013, matching the transfer to DC's account. Added to that, DC's Maybank 2013 Statement confirms the RM945,000.00 credit entry on 27 August 2013, verifying the successful receipt of funds from TSM. [31] For Cash Loan 3, TSM's Ambank TT Remittance Application Form (dated 28.8.2013) evidences a transfer of RM420,004.00 (including a RM4.00 fee) from TSM to DC, signed by TSM as the transfer applicant. This transfer is supported by TSM's Ambank 2013 Statement, which shows a Debit entry of RM420,000.00 on 28 August 2013, matching the transfer to DC's account. Added to that, DC's Maybank 2013 Statement confirms the RM420,000.00 credit entry on S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 28 August 2013, verifying the successful receipt of funds from TSM. [32] For Cash Loan 4, TSM's Ambank TT Remittance Application Form (dated 30.8.2013) evidences a transfer of RM420,004.00 (including a RM4.00 fee) from TSM to DC, signed by TSM as the transfer applicant. This transfer is supported by TSM's Ambank 2013 Statement, which shows a Debit entry of RM420,000.00 on 30 August 2013, matching the transfer to DC's account. Added to that, DC's Maybank 2013 Statement confirms the RM420,000.00 credit entry on 30 August 2013, verifying the successful receipt of funds from TSM. [33] For Cash Loan 5, TSM's Ambank TT Remittance Application Form (dated 30.9.2013) evidences a transfer of RM130,004.00 (including a RM4.00 fee) from TSM to DC, signed by TSM as the transfer applicant. This transfer is supported by TSM's Ambank 2013 Statement, which shows a Debit entry of RM130,000.00 on 30 September 2013, matching the transfer to DC's account. Added to that, DC's Maybank 2013 Statement confirms the RM130,000.00 credit entry on 30 September 2013, verifying the successful receipt of funds from TSM. [34] For Cash Loan 6, TSM's Ambank TT Remittance Application Form (dated 5.9.2013) evidences a transfer of RM202,504.00 (including a RM4.00 fee) from TSM to DC, signed by TSM as S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 the transfer applicant. This transfer is supported by TSM's Ambank 2013 Statement, which shows a Debit entry of RM202,500.00 on 5 September 2013, matching the transfer to DC's account. Added to that, DC's Maybank 2013 Statement confirms the RM202,500.00 credit entry on 5 September 2013, verifying the successful receipt of funds from TSM. [35] In summary, from the combination of these documents, TSM's Ambank TT Remittance Application Form, TSM's Ambank 2013 Statement and DC’s Maybank 2013 Statement, have provided comprehensive evidence of the six (6) cash loan transactions, remitted by TSM to DC. [36] The flow of the money, the six (6) cash loan transactions, is not from DC to TSM to pay for the gold, but are cash transaction remitted by TSM to DC as captured by the bank documents. [37] In other words, we find that there is inconsistency in the financial transactions and their alignment with the purported nature of the agreement. If TSM is indeed the seller of gold to DC, the conventional business practice would dictate that the buyer, DC, should be the one transferring funds to the seller, TSM. The reversal of this financial flow in this case raises doubts on the authenticity and credibility of TSM’s claim that these are the claimed "sale of gold" transactions. S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 [38] Having considered the Appeal Record, we find that TSM's testimony under cross-examination during the trial shows that that he had failed to provide an explanation as to why he transferred money to DC and his general answer was that, LKG, his fund manager would be able to explain: “DH: I put to you that, these 4 payments were made to your account and 2 payments were made on 26th July 2013 for the sum of RM900,000.00 as well as RM30,000.00 respectively on this date. And also on 29th July 2013, both funds equal to the balance part payment for 2208, 2 million and 208 thousands just for the record. My lady. I put that. PW1: Yang Arif. PW1: Yang Arif, so many payments were also made. Yang Arif. This is only isolated. I can’t tell. Only my fund manager will be able to tell. He’s the one. I wonder who pick this thing. These are my personal accounts. I didn’t mark on them. DH: Tan Sri, we are not going on about this anymore. We will talk to your fund manager when he comes. PW1: Yes, he will be able to answer, the other payments are there. I don’t know, so many why are these. Are these only a pickup. I don’t know. So many payments are there. I didn’t. Its my own account. How did it go. My fund manager would be able to tell. Who pick it up? That is not from me. I didn’t get this account. Yang Arif, I didn’t point out this one..” (RR/encl 6/pg 75-76) …. S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 PW1: … I can’t see other payments. Everything, who gave this statement. I wouldn’t know Yang Arif. The only man who can answer is my fund manager, fund manager. There are only two isolated items here that I can see. I won’t know. Only he would be able to answer. He is the man who manages. He takes the gold and he pays. No money he doesn’t get the gold. That’s it. That’s all I know. He does it …. (RR/encl 6/pg 78-79) [39] Added to that, TSM had given evidence that his fund manager, LKG, would know the details. In his evidence LKG had confirmed that he had prepared the six (6) Ambank TT Remittance Form based on TSM’s instruction to transfer the six (6) principal cash loan sums to DC. LKG had affirmed that because TSM had signed the TT Remittance Forms, TSM knew that these six (6) principals cash sums were in fact cash money loans to DC with interest, and they were not for sale of gold bars. Under cross-examination, LKG gave the following evidence: “DH: Alright now after, you would agree with me that after the first 2 real sale of gold transactions. Then what happen? Would you agree with me that Tan Sri then over a period on 17th October 2013 to 5th November 2013, I am looking at page 82, the first table. DW3: Yes Yang Arif. DH: Alright. Would you agree with me that Tan Sri had lent cash money to DC? For that period in the table. 6 loans. Over that period to David Choong. DW3: Yes Yang Arif. S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 DH: Now, and you would agree with me that the loans that was lent, the actual money were under the amount invest column. There is a column there…. There are figures there, right as you look there are 6 figures Tranche 1, 2, 3, 4, 5, 6 there’s correspondingly the amounts invested are for the first loan of RM130,000.00, second loan RM945,000.00, third loan RM420,000.00, fourth loan RM20,000.00, fifth loan RM130,000.00 and sixth RM202,500.00 right? DW3: Yes Yang Arif. DH: So you would agree with me that these were actually the cash loan amounts that Tan Sri had loan to David Choong? DW3: Yes Yang Arif. DH: Now the last column under the label dividend, what was that? DW3: That was the interest that David Choong have to pay Tan Sri every month Yang Arif. (see RR/encl 11/pg 16-18) ….. DW3: ….. As you can see that in Tranche 1 that under dividend, the interest paid was RM975.00 have to be times 12 months and is equivalent to 9% for each transaction the loans that have been given. …. DH: Alright and there are figures here. Was there any real gold that was transacted in regards to the 6 transactions in these documents? S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 DW3: No Yang Arif.” (see RR/encl 11/pg 16-17) [40] On the issue of the ‘dividends’ in SOGA 1, DC took the position that these are not real dividends, but are interests charged on Cash Loan 1 to 6, by TSM at the rate of 9%. This was supported by LKG, who had also confirmed that the six (6) Dividends stated in SOGA-1 were in fact interest payable for the six (6) cash loans, as can be seen from the evidence above. [41] The monthly interests which tally with the figures on dividends in SOGA 1 are as follows: Loan Amount 9% p.a Monthly payment Cash loan 1 RM130,000.00 RM11,700.00 RM975.00 Cash loan 2 RM945,000.00 RM85,050.00 RM7,087.50 Cash loan 3 RM420,000.00 RM37,800.00 RM3,150.00 Cash loan 4 RM420,000.00 RM37,800.00 RM3,150.00 Cash loan 5 RM130,000.00 RM11,700.00 RM975.00 Cash loan 6 RM202,500.00 RM18,225.00 RM1,518.75 [42] DC had also given evidence that he had paid to TSM monthly interest at a rate of 9% p.a. for each transaction, totalling RM300,908.25. These payments are evidenced by the bank statements of DC’s account. S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 [43] Since Tranche 1 to Tranche 6 of SOGA 1 are cash remitted by TSM to DC, they are cash loans given by TSM to DC, disguised as sale of gold transactions. [44] We are of the considered opinion that the learned Judge was plainly wrong in her finding that SOGA 1 is purely a sale and purchase of gold. The learned Judge failed to consider the banking documents which show the remittance of cash from TSM to DC, which corresponds with the ‘Amount Invest’ in SOGA 1 and the ‘dividends’ were actually interest of 9% pa on the respective cash loans. [45] It is trite law that the Court does not look at labels attached to a document but will examine the contents of the same in its particular circumstances to determine the true relationship between the parties and the type of transaction that they have entered into. [46] In Goh Gin Chye & Anor v. Peck Teck Tian Realty Pte Ltd & Anor [1987] 1 LNS 33, the Singapore Court of Appeal had applied the English case of Addiscombe Garden Estates Ltd and Anor v Crabbe and Ors [1958] 1 QB 513 where the plaintiffs had expressly by a written agreement purported to "license and authorise" the defendants to use and enjoy certain premises and amenities therein for a term of two years in consideration of a payment of certain fees. The Court of Appeal in England, upon a detailed examination of the agreement, came to the conclusion that a tenancy was S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 created, notwithstanding that the document was described by the parties as a licence and the draftsman had "studiously and successfully avoided" the use either of the word "landlord" or the word "tenant" throughout the document. Jenkins L.J. said at p. 522: "As to the first question? whether the so-called licence of April 12, 1954, in fact amounted to a tenancy agreement under which the premises were let to the trustees? the principles applicable in resolving a question of this sort are, I apprehend, these. It does not necessarily follow that a document described as a licence is, merely on that account, to be regarded as amounting only to a licence in law. The whole of the document must be looked at; and if, after it has been examined, the right conclusion appears to be that, whatever label may have been attached to it, it in fact conferred and imposed on the grantee in substance the rights and obligations of a tenant, and on the grantor in substance the rights and obligations of a landlord, then it must be given the appropriate effect, that is to say, it must be treated as a tenancy agreement as distinct from a mere licence." And he later said, at p. 528: "The present case, of course, has nothing to do with the Rent Acts, but the important statement of principle is that the relationship is determined by the law, and not by the label which parties choose to put on it, and that it is not S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 necessary to go so far as to find the document a sham. It is simply a matter of ascertaining the true relationship of the parties." (emphasis added) [47] Based on the banking documents that TSM had transferred cash loans to DC rather than gold bars, it can be concluded that SOGA 1 neither substantiates nor serves as evidence for the existence of six gold sale transactions. Consequently, we find that SOGA 1 is a sham document and does not represent a valid sale and purchase of gold. [48] The next issue is whether the six (6) cash loans are caught by the MLA. The purpose of the MLA is to regulate the business of moneylending and not to regulate all kinds of moneylending transactions. Subsections 5(1) and (2) of the MLA prohibit unlicensed moneylending business and certain acts related thereto. The MLA does not prohibit any moneylending transaction with interest unless the lender has carried on an unlicensed moneylending business. In Ngui Mui Khin & Anor v. Gillespie Bros & Co Ltd [1979] 1 LNS 60; [1980] 2 MLJ 9, the Federal Court held as follows: “At the outset we wish to observe that the Moneylenders Ordinance, 1951 does not apply to moneylending but only to Moneylenders. It does not make every moneylending transaction illegal and unenforceable. It is only a moneylending transaction of a moneylender which is the subject-matter of the Ordinance and must comply with its S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 provisions on pain of being declared illegal and unenforceable by the court. We make this simple and obvious observation because it was canvassed very strongly before us by counsel for the appellants that since the transactions between the respondents and the client are moneylending transactions, the respondents must be a moneylender and the guarantee which the appellants signed is therefore unenforceable. This submission overlooks the fact that the party to a transaction who thereby becomes the creditor may or may not be a moneylender. He is a moneylender if within the meaning of section 2 of the Ordinance he can be said to be a person "whose business is that of moneylending". To prove business requires some sort of continuity or system or repetition of similar transactions. (Chow Yoong Hong v. Choong Fah Rubber Manufactory [1960] 1 LNS 17; [1962] AC 209 at 218: [1962] MLJ 74).” (emphasis added) [49] In Ngui Mui Khin & Anor v. Gillespie Bros & Co Ltd, the Court held that to prove money lending within the ambit of the MLA, ‘requires some sort of continuity or system or repetition of similar transactions’. However, the new provision in section 10OA MLA (which came into force on 15 April 2011 vide Act A1390) provides that in any proceedings against any person where it is alleged that such person is a moneylender, proof of a single loan at interest made by such person shall raise a rebuttable presumption that such person is carrying on the business of moneylending. Section 10OA reads as follows: S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 “Presumption as to the business of moneylending 10OA Where in any proceedings against any person, it is alleged that such person is a moneylender, the proof of a single loan at interest made by such person shall raise a presumption that such person is carrying on the business of moneylending, until the contrary is proved.” (emphasis added) [50] Section 10OA is a rebuttable presumption, a legal principle that presumes something to be true unless proven otherwise. Section 10OA of the MLA imposed on TSM the legal burden of proving, on the balance of probabilities, that he was not carrying on the business of "moneylending" when he lent the six (6) cash loans, which carried interests, to DC. The presumption is that TSM was carrying on the business of moneylending, "until the contrary is proved". [51] In the present appeal, we are of the considered opinion that a rebuttable presumption that TSM had carried on a moneylending business by granting six (6) cash loans to DC without a moneylender's license has arisen pursuant to s. 10OA of the MLA. The rebuttable presumption arises because there are undisputed contemporaneous documents in the form of the TSM remittance forms, TSM bank statements and DC bank statements which proved that DC had obtained the loans and paid interest at 9% p.a. to TSM. S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 [52] To successfully rebut the presumption under s. 10OA of the MLA, TSM must prove on the balance of probabilities that by entering into the six (6) loan transactions with DC, he was not engaging in an act of "lending of money at interest, with or without security, by a moneylender to a borrower", within the meaning of "moneylending" by s. 2 of the MLA. Having considered the decision of the learned Judge, we find that she had failed to consider the application of section 10OA of the MLA. On our part, and having considered the evidence, we agree with DC that TSM has failed to rebut the presumption under section 10OA MLA. [53] Therefore, we are of the considered opinion that DC had discharged the legal and evidential burden under s. 101(1), (2) and 102 of the Evidence Act to prove on the balance of probabilities that TSM had carried on a moneylending business contrary to subsection 5(1) of the MLA by making the six (6) cash loans subject to the payment of interests, to DC and the same was camouflaged as a sale of gold bars by way of SOGA 1. [54] In view of the fact that the six (6) cash loans, which are subject to the payment of interests, granted by the TSM to DC are in contravention of subsection 5(1) of the MLA, the said loans are void and unenforceable under section 15 of the MLA, which provides: S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 “Contract by unlicensed moneylender unenforceable 15. No moneylending agreement in respect of money lent after the coming into force of [MA] by an unlicensed moneylender shall be enforceable." [55] Added to that, when an agreement is found to be illegal, it is also void under s. 24 of the Contracts Act 1950, which provides that an agreement is void if the object or consideration of the agreement is unlawful. The section reads as follows: “What considerations and objects are lawful, and what not 24. The consideration or object of an agreement is lawful unless: (a) it is forbidden by law; (b) it is of such a nature that, if permitted, it would defeat any law; (c) it is fraudulent; (d) it involves or implies injury to the person or property of another; or S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 (e) the court regards it as immoral, or opposed to public policy. In each of the above cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.” [56] The six (6) cash loans subject to the payment of interests in the present appeal would be caught by paragraphs (a), (b) and (e) of section 24 of the Contracts Act. The court will not render assistance to TSM in seeking to enforce such transactions and recover the monies as the remedy of restitution under section 66 of the Contracts Act will not avail to him. SOGA 2 dated 25 June 2014 Tranche Period Maturity Gold Gold Price Amount invest Dividend 1. 17/5/2014 17/6/2014 1kg 130,000 975 2. 27/5/2014 27/6/2014 7kg 945,000 7087.5 3. 20/5/2014 28/6/2014 3kg 420,000 3150 4. 2/5/2014 2/6/2014 3kg 420,000 3150 5. 1/5/2014 1/6/2014 1kg 130,000 975 6. 5/5/2014 5/6/2014 1.5kg 202,500 1518.75 7. 5/5/2014 5/6/2014 17.375kg 2,405,000 20,041 8. 16/6/2014 16/7/2014 14kg loan 14,000 9. 26/6/2014 27/7/2014 20kg loan 18,000 S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 [57] The Table in SOGA 1 was used in SOGA 2, SOGA 3 and SOGA 4. In his evidence, LKG stated that after the parties had entered SOGA 1, TSM had instructed LKG to re-record the said loans in the subsequent SOGA 2, SOGA 3 and SOGA 4. Therefore, as can be seen from SOGA 2, SOGA 3 and SOGA 4, the same Tranche 1 to 6 or Cash Loans 1 to 6, are all recorded therein. [58] In respect of SOGA 2, all the six (6) tranches/loans described in SOGA 1 are recorded with changes to the dates in the 'period' and 'maturity' columns. In respect of these six (6) tranches, we are of the considered opinion they are the same as in SOGA 1, and therefore they are cash loans from TSM to DC with interest at 9% pa. Based on the reasons enumerated above, we find that these six (6) cash loans are in contravention of subsection 5(1) of the MLA and are therefore void under section 15 of the MLA. [59] In respect of Tranche 7, 8 and 9 of SOGA 2, DC submitted as follows: Tranche 7 [60] On 6 March 2014, TSM extended a cash loan of RM2,405,000.00 to DC by transferring 17.375g of physical Gold Bars, which were then converted into a fixed cash loan. This loan was subject to a monthly interest payment of RM20,041.00 by DC to TSM (at 10% pa) ("Monetized Loan 7"). S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 [61] Between 8 April 2013 and 11 March 2015, DC made a total interest payment of RM240,492.00 (RM20,041.00 x 12 months) to TSM. Tranche 8 [62] On 18 November 2013, TSM transferred 14 kg to DC (8kg gold bars plus the balance 6kg) subject to monthly interest of RM14,000.00. Between 16 February 2013 to 28 December 2014, DC has paid to TSM the total interest of RM182,000.00 (RM14,000.00 x 13 months) on the loan of 14kg Gold Bars. [63] On 16 December 2014, TSM monetized and converted the loan of 14kg Gold Bars into a fixed cash ringgit loan of RM1,806,000.00, subject to monthly interest of RM15,050.00 (at 10% pa). Between 21 January 2015 to 18 March 2015, DC had paid to TSM the total interest of RM45,150.00 (RM15,050.00 x 3 months) on the monetised loan of RM 1,806,000.00. (Monetized Loan 8) Tranche 9 [64] On 26 June 2014, TSM loaned to DC 20kg physical gold bars subject to monthly interest of RM18,000.00 (20kg Gold Bars). Between 5 August 2014 to 9 January 2014, DC has paid to TSM the total interest of RM108,000.00 (RM18,000.00 x 6 months) on the loan of 20kg Gold Bars. [65] On 26 December 2014, TSM had monetized and converted the 20kg Gold Bars Loan into a fixed Ringgit cash loan of RM2,660,000.00 S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 subject to payment of monthly interest of RM20,166.00 (10% p.a.). From 6 February 2015 to 30 May 2015, DC had paid to TSM the total interest of RM60,498.00 (RM20,166.00 x 3 months) on the monetised loan ("Monetised Loan 9"). [66] For Tranche 7, 8 and 9, there was a transfer of gold from TSM to DC, but these were subsequently monetized into cash loans with monthly repayments subject to 10% interest. DC gave evidence that he has paid to TSM monthly interest at a rate of 9-10% p.a. for each transaction, totalling to RM636,140.00, and summarised as follows: (i) Interest paid for Monetised Loan 7 = RM240,492.00 (ii) Interest paid for Monetised Loan 8 = RM227,150.00 (iii) Interest paid for Monetised Loan 9 = RM168,498.00 [67] We are of the considered opinion that DC had established the monthly interest payment to TSM for each Monetised Loans 7 to 9, as can be seen from DC's bank statements. [68] DC’s evidence was supported by TSM’s fund manager, LKG who gave the following evidence: “DH: Alright, can you explain Tranche 7, 8 and 9 for me? Meaning oh sorry, is it a record of loans also? DW3: Just a record of loans, Yang Arif, can I start explain Yang Arif? S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 DH: Yes you can. DW3: Okay Yang Arif. You see the Tranche No. 7 is actually a gold bar that pass from Tan Sri to David Choong but these gold bars is actually monetized … So actually 17.375 was monetized in the loan amount. So that is why we come to about 250,500 and David Choong have to pay the interest, money interest in table Tranche 7. … DW3: Yes, the gold bars actually taken from Damansara Perdana and monetized it. Straight away that means I give you gold bar you just calculate it as a loan amount. So that is why it comes to over 2.4 over millions. DH: And how much was the interest to be paid in this 2.4 million? DW3: Look at the table RM20,041.00 if you count 10%, 9 to 10% Yang Arif. DH: This is per month.” ( see RR/encl 11/pg 20-21) [69] Therefore, as these gold transactions have been monetized into cash loans and bearing interests, these transactions are also caught by the MLA and are therefore void. SOGA 3 dated 25 June 2014 Tranche Period Maturity Gold Gold price Amount Invest Dividend 1 17/5/2014 17/6/2015 1kq 130000 975 2 27/5/2014 27/6/2015 7kg 945000 7087.50 3 28/5/2014 28/6/2015 3kq 420000 3150 S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 4 2/5/2014 2/6/2015 3kg 420000 3150 5 1/5/2014 1/6/2015 1kg 130000 975 6 5/5/2014 5/6/2015 1.5kg 202500 1518.75 7 5/5/2014 5/6/2015 17.375kg 2405000 20041 8 16/6/2014 16/7/2015 14kg Loan 14000 9 26/6/2014 27/7/2015 20kg Loan 18000 10 18/11/2014 18/6/2015 22kg 122 1875000 15625 11 128 941000 No dividend [70] In respect of SOGA 3, Tranche 1 to 9 are reproductions of SOGA 1 and SOGA 2. For the reasons enumerated above, we find that all the nine (9) transactions are cash loans disguised as sale and purchase of gold, and are therefore void under the MLA. Tranche 10 [71] DC had purchased a portion of this 22kg gold to the value of RM941,000.00 and paid TSM the same in 2 instalments of RM491,000.00 and RM450,000.00 on 18 November 2014 and 31 December 2014 respectively. These two (2) payments can be seen from DC's December 2014 Maybank statement account showing a debit entry of RM491,000.00 on 18 December 2014 and a debit entry of RM450,000.00 on 31 December 2014. [72] These payments are corroborated by TSM's December 2014 Ambank statement showing credit entry of RM491,000.00 on 18 December 2014 and a credit entry of RM450,000.00 on 21 S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 December 2014. This shows that TSM had received the sum of RM941,000.00 from DC. [73] The balance monetised sum of RM1,875,000.00 (RM2,816,000.00 minus RM941,000.00) continued to be loaned to DC subject to monthly interest of RM14,125.00 (interest rate of 9% p.a. on RM1,875,000.00) ("Monetised Loan 10"). For Loan 10, from 28.12.2013 to 18.3.2015, DC had paid to TSM the total interest of RM56,560.00. The evidence of the payment of the interest is supported by the bank statements of DC. [74] The above evidence is supported by the oral evidence of LKG: “DH: Alright, now you explained 9, can you explain item 10 and 11? DW3: … Actually number 10 and 11 is to record 22 kg of gold bars passed to David Choong at that time, towards end on 2014. Therefore the 22 kg, because Tan Sri wants to sell at the price of RM128, meanwhile at that moment, price was still RM122. Then once it hits 128, Tan Sri want to monetize whole bunch of gold. Monetize it. So how come it come to 941? Because the item under no 11, RM941000.00 actually Tan Sri wants to cash out to give to someone. So the loan left of RM1.8m 78 thousand to keep for David Choong. Still in the loan. 941 Tan Sri want to cash to give to someone then the balance 187 thousands keep as a loan. … DH: So Tan Sri had 22 kg of gold. What he wanted to do is to sell at RM128 per gram. S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 DW3: Yes Yang Arif. ….. DH: The total is 1 million 875 thousand plus 941 thousand. How much is that? So the total is RM2 million 816 thousands, correct? DW3: Yes Yang Arif. DH: Of which then he took 941 thousands for himself and he loaned David Choong RM1.875 million? DW3: Yes Yang Arif. DH: And for that 1.875 million he charged interest amount of RM15,625.00 correct? DW3: Yes correct.” ( see RR/encl 11/pages 23-24). Tranche 11 [75] With regards to Tranche 11, this was subsequently omitted from SOGA 4 because this sum was taken by TSM himself as can be seen from the above evidence of LKG. SOGA 4 dated 25 June 2014 [76] SOGA 4 is a restatement of SOGA 1 to SOGA 3, without tranche 11 and shows a total investment of RM6,341,000.00. S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 Tranche Period Maturity Gold Gold Price Amount invest Dividend 1 17/1/2015 17/6/2015 1kg 130000 975 2 27/1/2015 27/6/2015 7kg 945000 7087.5 3 28/1/2015 2/6/2015 3kg 420000 3150 4 2/1/2015 2/6/2015 3kg 420000 3150 5 1/1/2015 1/6/2015 1kg 130000 975 6 5/1/2015 5/6/2015 1.5kg 202500 1518.75 7 5/1/2015 5/6/2015 2405000 20041 Total 4652500 36897.25 8 18/1/2015 18/6/2015 128 1875000 14125 9 17/1/2015 17/6/2015 14kg 129 1806000 15050 10 26/1/2015 26/6/2015 20kg 133 2660000 20166 Total 6341000 49341 [77] For the reasons enumerated above, we are also of the considered opinion that SOGA 4, which is a restatement of SOGA 1 to SOGA 3, is a moneylending business, which is contrary to subsection 5(1) of the MLA. The said loans were camouflaged by way of the SOGA 1 to SOGA 3 and were in truth loans by TSM to DC, repayable with interest. Issues Raised by the Court [78] On 15 December 2022, this Court directed the parties to submit on the following issues: - (i) The Legal definition of "Money"; (ii) If gold is given in physical form and value determined or to be determined at a later date together with a return of investment or S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 Dividend or interest, or given by way of a loan, whether it is contrary to the MLA; and (iii) If a transaction is contrary to the MLA, can the alleged borrower after his unequivocal admission of the debt, raise the issue of illegality to escape the obligation to repay the amount outstanding. [79] With regards to issue (i), it is common ground that ‘Money’ is not defined in the MLA. Therefore, ‘money’ must be given its dictionary meaning. In Black's Law Dictionary, 7th Edition (1999), money is defined as: "Medium of exchange authorized or adopted by a government as part of its currency ...assets that can be easily converted to cash... " [80] In view of the above definition of money, that is, it is a medium of exchange that can be easily converted to cash, we find that the definition of money is wide enough to encompass not only traditional forms of currency but also assets that can be readily converted into cash. This will definitely include gold and cryptocurrencies. [81] On issue (ii), we are of the considered opinion that from the factual matrix of this case, Tranche 7 to 10 were initially in the form of gold bars. However, subsequently the parties agreed that these transactions be converted into cash values (principal loan sum) with interest payments paid on the principal loan sum. Therefore, since the S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 36 gold bars have been converted into cash (monetised) form, then these money loans are caught under the MLA. [82] Added to that, in his letter dated 20 April 2015, TSM had made express reference to a "loan" of RM10,043,500.00 and there was no demand for the return of the gold. As such, we agree with DC that the act of TSM demanding DC to repay the money clearly shows that he did not sell gold to DC. [83] With regards to issue (iii), in the case of Suu Lin Chong v Lee Yaw Seang [1979] 2 MLJ 48, despite there being an admission of monies owed, the Court held that as the moneylending transaction was illegal and void ab initio, and the Court should not allow restitution. [84] Recently, the same matter was raised in the case of Triple Zest Trading & Suppliers & Ors v. Applied Business Technologies Sdn Bhd [2023] 10 CLJ 187, where two (2) of the Questions before the Federal Court are as follows: (i) whether a loan agreement which charges an interest at the rate of 100% within a period of 30 days is legal under the law? (ii) if the answer to question (i) is illegal, whether the court should still assist the moneylender to recover the principal amount lent? [85] Both Questions were answered in the Negative. In the judgment, the Federal Court had cited with approval the following cases: S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 37 “[29] We find as apt the general pronouncements of law made by the Court of Appeal in the following two cases and one by the High Court, although the context and factual matrix of the cases differs in material respects from the present appeal: (i) Ideal Advantage Sdn Bhd v. Perbadanan Pengurusan Palm Spring @ Damansara & Another Appeal [2019] 1 LNS 894; [2020] 4 MLJ 93: Taking the argument on illegality point, it is trite that the effect of any illegal transaction will result in the "loss lies where it falls". A party that suffers loss due to an illegal contract, cannot sue the other contracting party to recover losses. The law will not afford relief to those who claim entitlements from an illegal act. (ii) Dr Mansur Hussain & Ors v. Barisan Tenaga Perancang (M) Sdn Bhd & Ors [2019] 1 LNS 661; [2019] MLJU 1552: Suffice for us to say here that if an agreement is void ab initio for illegality, no restitution can happen. No court will lend its hands to unwind a void agreement that was illegal ab initio by restoring each party to its original position as though the illegal agreement never took place. (iii) Yeow Guang Cheng v. Tang Lee Hiok & Ors [2020] 1 LNS 1696 (affirmed by the Court of Appeal in Tang Lee Hiok & Ors v. Yeow Guang Cheng [2022] 1 LNS 1510): S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 38 To deter unlicensed moneylenders from continuing with their nefarious business, it is in the public interest for unlicensed moneylenders to be deprived of their illegal "principal loan sums", interest and whatever ill- gotten property or benefit enjoyed from their unlawful moneylending business.” [86] Consequently, applying the above cases, we are of the considered opinion that since the SOGAs entered between TSM and DC are contrary to the MLA, they are void ab initio and the effect of such illegal transaction is that the "loss lies where it falls". Therefore, TSM cannot sue DC to recover losses. The law will not afford relief to those who claim entitlements from an illegal act. Conclusion. [87] For the reasons enumerated above, we allow all the three (3) appeals and set aside the decision of the learned High Court Judge. In respect of DC’s appeal in Appeal No. 2155 and 2156, we only allow the prayer on the issue of declaration that the SOGAs are void under the MLA. Since all parties are involved in the illegal transaction, we make an order that parties are to bear their own costs. Dated: 24 November 2023 sgd (AZIZAH BINTI NAWAWI) Judge Court of Appeal, Malaysia S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 39 Parties Appearing: CIVIL APPEAL NO. W-02(NCvC)(W)-2021-10/2021 For The Appellant : Joseph Yeo Tetuan Joseph Yeo For The Respondent : Sivanesan Nadarajah / Leong Pei Xin Tetuan Vicknaraj, R D Ratnam Rajesh Kumar & Assoc CIVIL APPEAL NO. W-02(NCVC)(W)-2155-11/2021 For The Appellant : David Hoh / Cassandra Choo Tetuan Lim & Hoh For Respondent 1 : Sivanesan Nadarajah / Leong Pei Xin Tetuan Vicknaraj, R D Ratnam Rajesh Kumar & Assoc. For Respondent 2 : Hafizah Johor Binti Ariff Johor JABATAN INSOLVENSI MALAYSIA CIVIL APPEAL NO. W-02(NCvC)(W)-2156-11/2021 For The Appellant : David Hoh / Cassandra Choo Tetuan Lim & Hoh S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal 40 For The Respondent : Sivanesan Nadarajah / Leong Pei Xin (Tetuan Vicknaraj, R D Ratnam Rajesh Kumar & Assoc) Legislations: 1. Moneylenders Act 1951 2. Contracts Act 1950 Cases: 1. Goh Gin Chye & Anor v. Peck Teck Tian Realty Pte Ltd & Anor [1987] 1 LNS 33 2. Addiscombe Garden Estates Ltd and Anor v Crabbe and Ors [1958] 1 QB 513 3. In Ngui Mui Khin & Anor v. Gillespie Bros & Co Ltd [1979] 1 LNS 60; [1980] 2 MLJ 9 4. Suu Lin Chong v Lee Yaw Seang [1979] 2 MLJ 48 5. Triple Zest Trading & Suppliers & Ors v. Applied Business Technologies Sdn Bhd [2023] 10 CLJ 187 6. Ideal Advantage Sdn Bhd v. Perbadanan Pengurusan Palm Spring @ Damansara & Another Appeal [2019] 1 LNS 894; [2020] 4 MLJ 93 7. Dr Mansur Hussain & Ors v. Barisan Tenaga Perancang (M) Sdn Bhd & Ors [2019] 1 LNS 661; [2019] MLJU 1552 8. Yeow Guang Cheng v. Tang Lee Hiok & Ors [2020] 1 LNS 1696 9. Tang Lee Hiok & Ors v. Yeow Guang Cheng [2022] 1 LNS 1510 S/N EQZgM6NxBkMgk87jNmSkA **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

WA-23CY-36-09/2022

PLAINTIF 1. ) MUHAMMAD SAFUAN BIN MOHD HASHIM 2. ) NOOR SHAZRAH BINTI MOHAMAD DEFENDAN NOR RAFIDAH BINTI MOHD ASHMIR WONG

This Court found the Appellant’s application seeking an equitable relief not equitable in the least and was vexatious. The Appellant who is said to be an advocate and solicitor ought to have known better.As there was nothing for this Court to consider, the application was dismissed with costs of RM5,000.

27/11/2023

YA Puan Roz Mawar binti Rozain

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=d5eeb167-8333-4246-9652-ad119917b4af&Inline=true

27/11/2023 10:58:16 WA-23CY-36-09/2022 Kand. 88 S/N Z7Hu1TODRkKWUq0RmRe0rw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N Z7Hu1TODRkKWUq0RmRe0rw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N Z7Hu1TODRkKWUq0RmRe0rw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N Z7Hu1TODRkKWUq0RmRe0rw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N Z7Hu1TODRkKWUq0RmRe0rw **Note : Serial number will be used to verify the originality of this document via eFILING portal HA—23CY—35—D9/2022 Kand. as 2:/mznza 10:52-15 IN YHE men coum IN MALAVA AT KUALA LUMPIJR IN Tn: FEDERAL rznmonv, ruuursvn CIVIL cu: no w 2:c awe/2022 ssrwssu 1. MUHAMMAD SAFUAN am MOND NASHIM 2 NOOR smzrun awn MOHAMAD PLAINYIFFS AND NOR RAFIDAN anm MOHD ASHMIR wows .. nersnomv snauuns or JUDGMENT Em: 4 on Egllclllon nnd am: 13 Rulu at coun 2012 Imrgdgcllon m The AppeHan|s appeal us agams: «ms Courts declsmn an 12 (0.202: mm dlsmwssed her appncauon var an mjunclvon agamsl ms Responaencs who were Ihe P\avm1fs m me sum The case men had pmceeded to full 11121 on 11.102023 where me Fvs\ Respandenl had sm zm«mumwuqu»m.nm mm. smm ...m.mm .. LAIQ4 w may he mm-y mm: dun-mm VII mum pm mnnpnened ms examnnanumnchlel and cmss«e)Gmmalvon Through nms cams nnina|ive no medna|e Ihe malter, a oansenl nudgmem was reoomed on 1.11 2023. n was recorded man nne Deuendann Is on. owner ml me following nnsnagram aomum: — . Jas_800Dn . nnacmmbnscooknes: . sayangaampankenananau. . samanfnrnahunmknoorshazrahn and . mnzznnavandn [21 rue Appannann was an» nnnnnnaad |o dnsnumcr aause dnsmmance Ia and/ov braach ma unvacy nu! ma Respondents‘ and/av no cynaranannnny ma naspandanna nn any mlnnav The Apaeflarnn was nnnnnncned lrom dnimayinfl ur yublxshnng lny peudnan nnvomnannon an the Second nzaspondann, her pncndm, narnunn name and ndcnlnlyurd numberun ann sedan mednz pages nllhe Appennann urlhosu controlled by me Aupmnnnn [3] n was addnniunan decnared man nna Fnrsl Resnondann awrnud ma nnstagmm amunns on sa1une_1n and S35 one: wnnnsn ma ssound Respondent owned me lns1agrann aeuuunns named snasnazran and shashnshuD202. They are likewnse m]unc|ed from dnsmming the Appellant and/urmeach her pnvacy and/or cummfl cyner-bunnynng nawams her (4) The AppeHan| was no pay oasns M RM5n,nxm la the Seound Resnorndenl. Tne mnsann gudgmerfl was me MI and «nan sennsmenn oi the dnspule. Paniss agrsed nnan mere were no be no iunmr acnnons penalmrng no nnis manlar man nnvulvad me sand accounts The case has annce closed. sm zwnnmufinkwuqnkmnanrw “Nana smun ...nn.mnn .. d... a may n... mnnuuly mm: mmn VI .mna v-man [5] van me Appmanl had run wnlhdrawrn her mines of appaan against nms cows dismnssal 01 her applncanon In nn,uncn The unpneasann dnspule naa been reserved so any decisnon by me com o1Appeal wound not come luany1m\|bcn,The subisc|maIIemlme nnnununan applncanon nas become no nongar nenawann snouna nne coun auppean (nnd nnan nnns own had exercised II: dascvehnn wmgny, nrun order wanna be moot There ns no langer any prscinral paint or uenem wnenmr || n5 to ma Appunnann or otherwise no proceaa wI|h me appeal [en Navannanass, named her: Is man |o |ms Caurfs mmd. nl was clear man than wax not man a sumac: mansrln nnlunm m rne Rlspondenls are a nuwiy wedded coupne They filed a on.-um aqannst me Apnellann for hreachinn melr prmcy and cyber-buflying nnmugn numemus pusnings on the Appenlinfs vanuus social media pages The Respondents contended Ihanlhe Appellanfl hid anso harassed lhe Fnnsl Respondent‘: ex-we no dnsmrb nneu privacy The Respondinns pneaued nnan the cyber-bullying by me Appennann had caused tremendous stress and anguish mennanny and emmnonanny |o me Second Respunflent me was plegnanl. am a Iullon nan Belme nn: man. ma Appannann nan sought nma com to an ovderlhal me Respondents aenene all pubhcalnuns an nnenr nnsnagnam Pages anything in ranauun to he Appannnm. The Appanrann anannnea that am Respondents‘ pom ma belmlad, body-shamed and defamsd hat The Aupennanuougnn lhu Coon no nmunclnha Respnrvdenls nmn dmurbmg hsvznfl bruachnng har nnvaoy sm zmunmufinkwuqnkmnnnrw «mu. smun ...nn.mnn .. met! a may n... nnnnnu -mm: dnuavnml VI .rnuNa v-man [91 The Appeuann cried |hiny—seven amounts ma: sne aueaea were me Rsspmdenls‘ lhal earned Ihe punlnaanons she connenuea had body- snamaa and defamed Nev vac, mere waslaxluts orinabmly la anowm uns com men pus! man nau boayanamau nr detained me Appeflanl. Thare was nan even mom that an me cnntyaavan auxnums helanged «a me Respondems urwele controlled by mm. The Am>eHan( had also lafled la show to «ma Courl any 0! me cryphc messages nan Vn lac| referred to her. nu] TuLs Conn lound ma Aupauanva applncallan saebdng an aqunshle ranao ml aqmhole in me new and was vexahaus rna Aopelmm who ws said to be an advocate ano whcrtcroughl m have known balls! [1 1} A: (hare was nnlhmg em Irus own |n wnsndon Ihe uppticaaan was dnsrmssad wnn costs of RMs,oou DATED 12 NOVEMBER 2023 R02 MAWAR ROZAIN JUDICIAL COMMISSIONER HIGH coum IN MALAYA KUALA LUMFUR For ma mnrm Naornzrmr Zakalvu together wun sm Farah Farhana Ahmad ram T/n Akram Han Azad A Azrmr m zmutmufinkwuqnfimnnnrw «mm. snnnw nmhnrwm .. U... a my n. mn.un mum: dnuamnl VI mum v-max Fmme Delenaanr Haslarena Beramm T/n Famna 5 Co sm zmutmuwkkwuqnkmfinnrw mm. smm ...m.mm .. LAIQ4 w may he mm-y mm: dun-mm VII mum pm

Tika 2.6.0 & Pytesseract-0.3.10

BA-41(Ors)-10-03/2023

PERAYU Liana Binti Esa RESPONDEN 1. ) Pendakwa Raya [Pendakwa Raya] 2. ) Anuar Fahmi Bin Ahmad

Rayuan terhadap keputusan mahkamah majistret yang menolak permohonan di bawah s.30(1)(b) dan s.30(13) Akta Kanak-Kanak 2001 – sama ada perintah Majistret Mahkamah Bagi Kanak-Kanak telah mengubah dan / atau meminda penghakiman Mahkamah Tinggi Syariah – sama ada Mahkamah Majistret Bagi Kanak-Kanak mempunyai bidangkuasa untuk berbuat demikian – sama ada perintah Majistret Mahkamah Bagi Kanak-Kanak adalah batal dan tidak sah (null and void)

27/11/2023

YA Dr Wendy Ooi Su Ghee

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27/11/2023 14:44:25 BA-41(Ors)-10-03/2023 Kand. 36 S/N MGaHtdZJKEoZfbL7zcCQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N MGaHtdZJKEoZfbL7zcCQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N MGaHtdZJKEoZfbL7zcCQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N MGaHtdZJKEoZfbL7zcCQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N MGaHtdZJKEoZfbL7zcCQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N MGaHtdZJKEoZfbL7zcCQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N MGaHtdZJKEoZfbL7zcCQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N MGaHtdZJKEoZfbL7zcCQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N MGaHtdZJKEoZfbL7zcCQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N MGaHtdZJKEoZfbL7zcCQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N MGaHtdZJKEoZfbL7zcCQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N MGaHtdZJKEoZfbL7zcCQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N MGaHtdZJKEoZfbL7zcCQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N MGaHtdZJKEoZfbL7zcCQ **Note : Serial number will be used to verify the originality of this document via eFILING portal BA—l1(0xs)-10-03/2023 Kand. 36 21, 11/2023 14 »u:23 DALAM MANKAMAN TINGGI MALAYA DI SHAH ALAM‘ SELANGOR (EIDANG KUASA RAYUANJ RAYUAN JENAVAH M0,: MI aA.41(orsy—1n—aa/znza MANKAMAH MAJISTRET KAJANG NO ' BH—£fl~lS1-04I2022 mun sum ESA [NO KIP: 92061 5.14.5234] [Inn kandung kepada kanalokanzk bemama Aunan Llllhfl hm Anuar ranmu PERAYIJ LAWAN 1. PENDAKWA mu (Aqensl Jaha|an Kebaman Masyavakat Negen Selangzm 2. /mum: FAHMI am AHMAD (NO.K/P: szosueas-sans) RESPONDEN-RESFONDEN PENGHAKIMAN Fnvluerulan [11 um ada\ah vayuan lerhadap keseluvuhan kepumsan Mzhkzmah Maimrel Kaiinsi Dad: 15 02.2023 yang mencflak vermuhonan Pevayu m Kandungan 21 dengan kos [21 Kandungan 21 adalah vermnhonan Periw ax hawah seksyen 30(1P(b7dan Seksyen 3U1I3)Ak1a Kanak~Kanak 2am — u) Elnaw: sualu Penman Llnluk Melalakkan K:nak~Kanak Dllam Jagaan Orang Vang Layzk Dan Sesual yang dvbarilun kapida Pelmdung Pamax xebanx-n Masyarakan Dierah Sapang an Respmaen Kedu: henankh new 2022 bigi karIzk—kanakIeIsebIII uihmrkanaan latau mmepnan sens» mama menuml sensyen 1fl(I3y(:)Aktz Kanak-Kanak 2am. Bahawa sualu Penman Unluk Melelakkan Kanak-Kanak Dalam Jagaan orang Vang Layak Dan Sesuzl amerinan kepada Pevayu yang meruvakan mu karmung kaparli kanak» kansk tevsebul. dart nu) Apa—apa pevimah semmulnya anau seuilnnya yang dllklrkan palm flan aml oleh Mahkamah Vang Mulla W Launullluny kn [:1 Pevayn flan Respcnuen Kenna adalan suzml Islen nan masing— maslng mu dzn bapa kandung kepada seovang kanak-kansk bemama AXXXXXXXX Canak teuebul") yang mmnnnan pads 06 n 2m 14} Namun, pada mzzmv, keduadua Perayn din Responaen Kzdua Ielah beroem Benkulan Pennlah Hidhinall Mankamah Tunas: syanan snan Nam nen.ankn1e.1z 2017 (“Penman Ml’SSA“|, nak pgaan bevsama ke mas anak Iersebut Ielah dwbenkan kepada Petayu dan Respnnden Kedua [51 Responflen Kedua kemudwannya Ielah belkalwlm semula dengan seorang mdwmu bemama Nlk Ahmad Rame bun Nxk Ralhan. 2 m MGnMdZJKEomL7zcCo “Nun: s.n.n ...n..mn .. mad w my .. mm-y -mm; fluuununl y.. mum Wm! [211 Setelah membaca kedua—dua Penman MBKK flan Fenmah MTSSA‘ annavn-anaawl sena DenghuJahan—pengI1u]aI1an yang xmankan oxen kedua—n1ua pmak, ada\ah dapalan mahkamah um bahawa Penman MEKK (elah mangubah dan / alau memmda Penman mss»: [231 A|asarI—a\asannya adalah sepem Dermal- u) Hzk mgan anak lersuhm helah dlubah darn/Itiu mpmda dan Iecava xmnma. ml kapada hanya Respondnn xmua um-mg um): bag: Ienuuh liga (3) vanun m mu dspa| a-mm dangan Masnya danpada syaml mm». MEKK yang menyalakan Raspcndan Kadua um boluh memlndah nak pamagain kannk-kanak kn Iarlnan many Iain (znpz pmscs yang sah .1. swsx unaang. umsana qu) Jug: maklersobul pull hendaklahlmggalm alamal Reiponflen Kenna dl N01, Jam SL 2, Yaman sarak Leann‘ «mo Sawing‘ Sahngav lm dengan puny: menumumn anak mmuumk holeh Imggal belsama dengan Pemohon/Pcvlyu ma aemanan, naakkan nu hermaknz Pemnhm/Puayu Ielah kemlangan nak pagaan sama sekzh ke alas anak lersebuf’ Bagalmlnakah Pemahon/Penayu hnleh mempunwi hak Aagaan sedangkan behau langsung «dak bemak unluk znak Iersehm nnggau bersamanya’? Dalam paaa mu, makkah ml bermaksud hak jagaan yang dlhenkan kepada Pemohun/Perayu men Penman mssa lelzh ditarik n sama sekah cleh MBKK7 5/N MGnMdZJKEomL7zcCo “Nun: smm ...u..mn .. mad w my .. mm-V -mm; flwulnlnl n. -nuns Wm! (up Juga, bukan sanaya hak peruaglan Pnmohon/Perayu |el:n ditauk balik. malah hak liwihn aan bevmaham m uga Ielah dlkurangkan flan/z|au dihadkan iav|u we “ ‘I:-hila man munasabah dengan perbincangan pmak-|IIhik' kepada hanya ‘sekurang-kurangnya dua ¢2) nari sehman am. pm samu atau mac" lru bennaksud Femohon/Ferayu hanya bmeh memnm samzda pad: harl Sabw mu Ahad aan bukannya samu dun Ahid sahip bulan unmk melavml dan hermalam flengan anak beliau lni ma bevmaksnd hak bevsama dan bermalam dengan anamersewc pad; navi-hari lain, pm: huvi cntl umum, cm: persekolahan dan cnli pevayaan sehzgavnana yang mpenmankan dv bawah K\ausa 3 Penman MTSSA .uga (elah dwank nanx sama sekalw aleh Penman MEKK Di samnlng nu, Penman MBKK juga (elah menelapkan syalzt camoanan (emang Vokasl lawman dzn bermalam adalah an mmah ualuk dan nenek alau manamana temps: hersama daiuk dan nerlek fanpa kehaduan Ahmad Rama bun Nxk Raman dengan peceluwan dzn pelbncangan hersama Respcnden Kedua Juga, Responden Kedua pada nna-nna masa hevhak hadh din me\awal anak lersebm [241 Selaruumya adakah Mahkamah Mauslvel Bagv Kanak-Kanak mempunyal hmangkuasa bevbua| aammnv Jnwapunnya adalan Udak memandangkan Mahkamah Ms)Islre| Eagl Kanak-Kanak sebagal mahkamsh venduh hank mempunym hrdangkuasa Imluk mangubih am/nun mammda penmah mahkarnah mm. Ienem Mahksmah Ymggx Syanah ShahNzm 11 am MGnMdZJKEomL7zcCo “Nun: sm.‘ ,..u..mu .. mod w my .. wrwmlhly mm; fluumunl n. JMNG Wm [25] Da\am pada Nu‘ aaalah dapalan mahkamah . bahawa Fymtah MBKK arm penman henankh us n9 2022 idslih batal nan udak sah (null and vow). [25] In: ada\ah oenk-nan kes Klran Slngh flan La. Iain v cnaman Flswln dun Lam-I n [IESA] AIR am an mana Hakxm Mahkamah Agony Inma Venkatarama Ayyav J (elah menyalakan - '/Us a fundamental wman/s well establrshed Ina! a man passed by a Conn‘ mtnuufiunsdravon r: a "my, and M3115 mvslnmy mum be :3! up whlnevav and wtrersvsrrt AS sought m be enlamed or rebed upon, em I! ma stave 0/txsculron and sven In ml/aleralpmocedmgs A 65/52! aljunsmchon, whether u IS pocummy or Iemrana/, or mama rs m raslleel at m. mm: mans! own mm mm .: me very numanry om cm In pun any doom: and mu . mm: urmnl n. cumd man by rzaruaru afnnmns “ (penekanan drlnmbah) [211 K25 Klun Slngh (supra) lelah mnuuk men Mahkamah Rzyuan dalam Dzlin Sari Rnsmah m Mlansorv Public Prosecutor and another nppeal [2022] 3 MLJ sac. Keslmuulan [23] Mzmandangkan Penman MEKK aaaxan bavax aan Mak sah (mill and void}, maka vayuan Am adalah dlbenalkan separa (partially a//awea) Iaflu pevmomnan dx bawah Kaudungan 21 dihenarkan selakal man: Penman MEKK dnkeleplkan 11 am MGnMdZJKEomL7zcCo «mm. sm.‘ ...u..mm .. mad w my .. mmm -mm; flwulnlnl n. IVMNG Wm! Berlavikh pad: 27 November zuza (wsunv on u GHEE) Puuvuhl a Kehaklman Illzllkamah nnggi Shah Alum Pumas Pmeumon Mvs Rubin: Pubamn new-Ay Public Pmseculor From selangor Slale Legs! Advlsary Chambev nevenoe swam 1 Mr Muhsmid Vzwln Hun: Hood Teman Halix Ruzzvm A on Delenoe counsex 2~ Isman Aman, Wan a. Alml Shazwlm m MGnMdZJKEomL7zcCo “Nun: sm.‘ ,..u..mu .. mad w my ». mmm -mm; fluumlnl n. IVMNG Wm! [31 Pa: 25 no 2022, susulan rapman pols oleh Respcnflen Keduz bahawa anak Iersebuk fllkasan wen suarm ham Pevayu, Jahatan Ken: SusIa\ Pambavan Hospital Kanng‘ Selangnr le\ah meuquk kepada Pellndung Pejsba| Kebamkzn Mzsyamkal Daerah Hulu Langal kzvana mangasyam anak |ersehuI dwaera ascara flzikal flan emnsl [7] Fame as us 2022, Mahkamzh Bagi Kanak-Kanak rmam‘) lelah menelm syoi Jzbalan Kehajlkan Masyarlkat um)‘ Vapman Pegavm Perunavan, Iapotan Psxklahi‘ lapman kaunsemr‘ Vaporan pelmdung dan Vapoian s/aslal. hujahan aan peguam Perzyu, Sena sym nan dua slang penasmzt yang menemuhual anak |ersehu| aan anak levsebul masm kansusxeu menynaxan kelngman unluk bersama dengan Respnnden Kenna [31 Dalam pada ma salu Penman Unmk Me\etaKk.an Kanak-Kanak Da\am Jagazn Olang vang Liyak Dan Sesuax le\ah dvbenkan oleh MBKK kepada Respanden Kedua bagr anak tevsebm bigl (empuh selama uga (3) lzhun dan kanak-kanak Iersebul dfletakkan dl bawah pengawasin Pellndung Pejaba| JKM Daelah Sepang dalam lempoh sama (‘Penmzh Maxxw [9] Tevxilan dengan Penman MEKK Ievsebul‘ Fevayu lelah mamcaukan Mons Permononan henankh as m 2022 (Kandungan 21) G1 bawah 5 sum; aan s.3n41 )(b)AkIa Kanak—Kznak 20m [101 Dalam Kandungan 21, Perayu memohon Penman MBKK dIhala\kan uanmau dukelemkan dan supaya Pevayu fllbenkan Pennlah Umuk Melemkkzn Kanak-Kanak Damn Jagaan Ovang Vang Layak Dan Sesuav [111 Pads 15 oz 2022. Kandnngan 21 Kelah dnolak dengan m we?! Mahkamah Manslvet Kamng rpanman 15 oz 2n23') m MGnMdZJKEomL7zcCo «ma sm.‘ ,..u..mu .. mad a my ». am.“-V -mm; fluumlnl via IVMNG wrm [121 Terkllzn flengzn Penman 15.02 2:123‘ Pevayu «em. murnlallkzn Nous Rayuan bevlankh 24.o2.2o23 [13] Pad: 2507202: Parayu jugs tzelah mzmlanknn pelmohanan melilui Nam. Uwl (Kanflungnn w) my Perzyu n-mm.-.n mengemukaknn kelelangzn ham danlatzu dokumen barn amui penderluarin vayuan. Pevmnhonsn larsahul lelah dldaflarkan m bawah NoEA-M—s4—n7/1023 [141 on hawah Nous Usul (Kandungan 1;, ken.as»kenas kuuu yang mlzllkan adiiah iepem benkut- (ny Amavin Sukungan Pamonon [Kundungan 2), no Anaaviuampan Respanaen Panama. my Al\davI|.lawapan Responder! Kedua (Kandunqan 2); my Amawn Ealasan Pamnhon (1; (Klndungan 3) dan M Amvin Baluan Pemohnn (2) (Kzndungun 4) Undzng-Llndinq [151 Riyuan Pevayu adalah nemauag Penman we :12 2023 yang menolak permohonan Perayu (Kandungsn 217 an bawah sauna) dan s 30(1)(|7|Akla Kanak-Kanak 2am us; Untuk kemudahin pemahiman‘ sauna) dan s3D(I7(h) Ala: Kanak—Knnak 2001 an-Ian dlnyalakan an hawah m a mu; Mnhlumnh mm knnalokannk mm, ale: pevmonoMn— 4:; Pulmdunq‘ to; may yang msnpga mum (emu: seramal atau I0} mu arau bapa alau parqaga sesearang kanskkanak, m MGmaz.1KEomL7zcco “Nun: sm.‘ ...u..mm .. mod w my .. wrwmlhly mm: fluulnlnl n. ul’\uNG mm msmznda, menguoan zlau membalalkan aoaapa penntah yang drbuat dr nawan sulmym rm — (la) jrka mankamzh bag: lensk—kana)< uu bavpuos hen bzmlvn -nun mm kepenlmgan kannk~k.sns)< m unluk wt:-at dsmrkrnn; nlnu mo; splmla dlbuklrkan bahnw: hm maaan yang dslamnyl pmm. Mu dmuu lalnh :2-mm solupus psmbualflrv penman nu Manama s.3D(1)(b) mempemnlukknn upem benkul — Knasa Mahltaman Bay xmmam 3:7 [1)Jtka Malvkaman Bag Kanak-Karuk bavpuls nan bahaw: man; manakanuk-knnakyang avlmwa kuhndupannn a4 bawzh soksyeu vv um 25 um nanny knmmunnk ylng mrmmulun p.m.m.mn din pafindunvm. Mammn aagn<.m.»<.m nu. wlspas mengamw lam hahawa meistakkarv m.x.m.x am». pemeiuharaarv berusaskan kelulrga mam mamoalma, men’ (6! 1» membual aualu pom.» mplafnklmn hrlawwnak nu aaram /ngnvl siswvirvg yang Vawk oan sem mama mu. «moon yang dmyzlakzn o/eh Mamramm Bag: Kanak-Kunnh m. [In oxen nu, da\am Kandungan 21, Perayu |elan memohon Penmah MEKK amavalkan nan/aoau mkemnlkan dan supaya Pevayu mbenkan Penman Unluk Mebfiakkan Kanabokanak Dmam Jagaan Olang Vang Lsylk Din Sesual 5/N MG-maz.1KEomL7zcco “Nun: sm.‘ ...u..mu .. mad w my a. mm; mm flnulnunl n. -Hum; wrm n-pm" Mlhklmnh [an] Pad: 07 :1 202:, rayuan m. bevsama permnhonan Nous um (Knndungan u m hawah No.31! — 44 » B4 » 07 I 2023 maxing-manmg mun dnaizpkzn unluk wbnlln dan pendangnran :1. hafllpan mahkamah Wm [19] ‘lardahum pm u51u2a23‘ mahkamah mi man mengavahkan kedua—dua pmak umuk membuat panghuiahln Vanjulan berkanan Kenna- dua isu henku| unu- m Samada Pennlah benankn na us 2092 aleh Mausllet Mahkamah Bag: Kanzk—Kanak Kaiang Iersebm (Penman MBKK) (clan mengubah flan / mu memmaa Fenghaklman Mahkamah Ymggl Syanah Shah Nam benankh \a1z2u17 (Penman Mrssm flan on J\ka jawapannya analah ya. samada Mahkamzh Mauslret Bag: Kanak—Kznak mempunyan bmaugmsa unmk bevbua( Liermklln [20] Adakah dapatan mahkamah W banawa kedua-dua Iayuan Sena pendengalan Nous Usul txandungan 1; akan dapa| dmemukan dan dlpuluskan din Aawapan-Jawapan kepadz Isu—\su tevsebux dl alas [211 Ezgi kemudzhan rumkan nan pemahaman, kedua—dua Pennlzh MTSSA uan Penman MBKK admah dinyzlakan semula an bawah ml 5/N MGnMdZJKEomL7zcCo “Nun: sm.‘ ...u..mm .. mod w my .. wrwmlhly mm; fluulnlnl n. JMNG Wm P-nmah MTSSA E. .u..........-. "M ,’.;_.’y.,__:..;.... ........ magnum Iullnm ..-......._..-.......-........... . ......................_.....m......... .».....-..._........................ ..m....-............H.-.‘..m..... ......-«...,u................ h....._.............. .............m.......m..,.-.u...-..... »... u. ....n. .... ‘....‘..,.. *4..." -5...... Iaumwhumnas-41-munwuanmlunuwnm. 5 2... ...m.\ m....-.........,. ..... .... ..».. ....»»..m ..:......=....... 51.. m. MW 5/N MG-mnz.1KEomLmcu «mm. mm ...m.mu Ian M w my :2. mm; mm. flnumlnl n. IHUNG wmx Puinun MBKK u 9-ac:-auznzz l<u-A. 20 u/Innn: nus :. 4»u\w.rEwrwA mu...” 2: -..»_.n..m-mm...-g-....a.. mm-._.-.; new news: -snmm wnlxlasvnmmuunutmm mun ucMnon»mtAur.|Avu(nm seam Kfllmmklsrmaollxvmmummsumvv -tmnuwmwnxmw uumwnumm .m......wmm.mm nMmusa:\II£mlna|uAuvuA mmm»-»m mmmmx mm»;-ummmmmaunv.%ze~u um -.m...m-......u.a nmnmnnwmmrm ...m-—-.uv-um»;-.wumsuxu..»....,yu.a--m. »..aA1m.umn«u£iu-no-«mun-uuun.aI~x.u. .<...»....»...»....-«w.......u....n.y.».m..n....:....p._. .....1.......«..m..«v-n.n....m._.-...... mum uumu Mmvswrmwcuuy-nma-4 .1...-...mu.. umumummmn war-w-awn» mmnsmm rs:.u_-4.m_I.x.I.>4u4u_MA:s mmm. no ---u- mu: yawn. I':;.~'>"-......‘='a:*............._.......a... u. ..-.....m -.. ._.......4..».-.........._.....mu.... sm MG-mnz1KE»zrnLmco “Nam sm‘ mmmu bu Mm mam. .m.my.m. u.....m VIZ IHUNG wmx DENGM1 w uID:=RuIAmnNsa1\nmmvAsupya ...u.m.. mm-a.na ....» nvw-C-n m.u¢Lvu9.zr..4AM1 Mmmmmanuvwet new «am .. ......./.—.m.........M............. Knremnamm , , ,,.;....‘..m mm;-up nsuam um notmnwoxm samumu.«.,.,. wmmm mum Ilbu W-....«...,.....-.-.--..... xuromoourn Na gamma; »....m.m .u..,.».wm Mum D mun...» "um mu ylru mm" um ma... rm-nun Mav-mum .. . .. E] Ilsa iuml-A:-k .. mm. m .4». Irma! mm: -\m W-M-«um-...umm.y...u..m.........,...m.r.v-n- a...n.»....M :1 u». har-hkruk .... dv W Vnfllnl ........n M ,...........5.........‘.m..1...,n.r.,...,«.u..n,.u......m .-.m.....».......u...m....y.,‘.... E} num»..y-..w....m. » mu nsumn 1<AuAn.u><M us-¢nm.An< n-um seven:-W Aumw ‘nu: m-vmm mm sen-Ans raIV\>nA>1umEmAxLmnEus»mEIa1ARAuPav>«.IInm; -u. s.u—S«—s._...»n-..oo,n.—.—~...:»¢... -"vfl”‘...'.“.‘«“'..'!,“.....».—.....m.......«..m.:.-. am MG-mnz.1KE»mLmco «mm. mm mmmu Ian M m v-viv :2. .m.my.a-m. flnumunl n. IHUNG wmx n Isunulmn mu -mu Ian mm mmm muzvx um mzuwn mmmux nl Immuumum mmuw nr.uu4u»unm<u-manmusxma‘ Iu ovLsnnA: wnsu Iasumn-:4 m Paumun Knwuuuuum K: mum own wu mm Moses ms an m as unumwunnm ». ovI.s «mm»: usunmxm sammm -Emma ranuumvun, vaozmu. remamu 1I|m< Ann I:IumwzA'rA:KAuu<.uuM. V um um sum seszxuu n-wsuxm mu um». I-:IuAmn.x:r(nLum muxzlulknt Knuk-KANNQDM‘ >1 mm ua-mu» Mnusmuv mu xswwxm, Ksvazxum um rzubcum mum smm»-mxz»m >mun.KAunL -tr. ltlxumwnxs-ADAKANM-KmlmwvuuAMAIMI:IuIo nan vznuilnunbv xzummzu nlmunmu wvux uaum, uzuunmu um um nsvawmn mu... nA>muM-max auuwuuumuuu mun nu mu liluwc um um um Am: mu nu mum nnvux nun max mu umwmvsum nsmAMA mmuuw >§NauAu|-A unmnuu um Mun rum: um mx Iumm mum awn-uu-m mu vsmmnumu Izllxunavu uaauw a mu IAMIIAWIA -an flan mm. mm... mm Kamruunn -- 4+5 an n Im auunififliéllflfl mm mm Mm-.*.*.~.'r.*.“~.:A.m.....-._........_ wmausuwmwn —-.. -........—.._....w-.-.-u..4....,_«...m—u 1n 5/N MG-mnz.1KEomLmcu “Nun: sm‘ ...m.mu Ian M w my a. mm; mm. flnumunl n. IHUNG wmx

Tika 2.6.0 & Pytesseract-0.3.10

AA-B52NCvC-33-07/2018

PLAINTIF HOT PURSUIT SDN BHD DEFENDAN Koperasi Mutlaq Perak Berhad

Tuntutan pihak Plaintif terhadap pihak Defendan adalah akibat suatu kemungkiran suatu perjanjian yang dikenali sebagai ‘Sponsorship Agreement’ bertarikh 02/01/2017. Pihak Plaintif telah menuntut gantirugi tertentu (liquidated damages), gantirugi khas, gantirugi untuk kerosakkan reputasi, gantirugi am berserta faedah dan kos. Surat Perlantikan dan Surat wakil telah ditandatangani oleh SD4 yang mengesahkan bahawa SD1 adalah wakil kepada pihak Defendan dan pihak yang berkenaan dapat memberi kerjasama di dalam segala urusan berkaitan Defendan. Surat Pembatalan Defendan menyatakan bahawa Sponsorship Agreement tersebut adalah tidak sah dan Defendan enggan meneruskan dengan sebarang terma yang terkandung dalam Sponsorship Agrement tersebut. - Undang-Undang Kecil Defendan perkara 46 ..fasal (u) dan perkara 76 fasal (1) dan (2) - Mahkamah mendapati bahawa SD1 merupakan “orang lain dan /atau pegawai yang telah diberi kuasa oleh Lembaga”. Pihak Plaintif telah bersandarkan kepada represantasi – represantasi.SD1 mempunyai ‘apparent or ostensible (including implied) authority’ untuk memasuki Sponsorship Agreement tersebut.

27/11/2023

Puan Priscilla Hemamalini a/p Nadarajan

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=68726daf-3a63-4847-a8d4-218148b99877&Inline=true

Page 1 of 18 DALAM MAHKAMAH SESYEN DI IPOH DALAM NEGERI PERAK DARUL RIDZUAN, MALAYSIA GUAMAN SIVIL NO. AA-B52NCvC-33-07/2018 ANTARA HOT PURSUIT SDN BHD (No. Syarikat: 1146261-A) ...… PLAINTIF DAN KOPERASI MUTLAQ PERAK BERHAD (No. Koperasi : A-4-0402) ...… DEFENDAN ALASAN PENGHAKIMAN [1] Tuntutan pihak Plaintif terhadap pihak Defendan adalah akibat suatu kemungkiran suatu perjanjian yang dikenali sebagai ‘Sponsorship Agreement’ bertarikh 02/01/2017 (selepas ini dirujuk sebagai "Sponsorship Agreement tersebut"). Pihak Plaintif telah menuntut gantirugi tertentu (liquidated damages) sebanyak RM900,000.00, gantirugi khas sebanyak RM44,202.00, gantirugi untuk kerosakkan reputasi, gantirugi am berserta faedah dan kos. 27/11/2023 12:27:47 AA-B52NCvC-33-07/2018 Kand. 118 S/N r21yaGM6R0io1CGBSLmYdw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 2 of 18 [2] Kes telah dibicarakan oleh Hakim Tn Harith Sham dengan keterangan saksi-saksi pihak Plaintif dan seterusnya setelah saya diarahkan untuk sambung bicara kes ini, saya telah mendengar keterangan saksi-saksi pihak Defendan. Pada akhir perbicaraan kes, Mahkamah mendapati bahawa pihak Plaintif telah berjaya membuktikan atas imbangan kebarangkalian tuntutan terhadap Defendan seperti berikut: a) Gantirugi tertentu (liquidated damages) sebanyak RM100,000.00 b) Gantirugi khas sebanyak RM44,202.00 Oleh yang demikian, Mahkamah telah memerintahkan Defendan membayar Plaintif wang sebanyak RM144,202.00/- dengan faedah pada kadar 5% setahun keatas jumlah tersebut dari tarikh penghakiman sehingga ke tarikh penyelesaian penuh dan kos mengikut skala. Pihak Defendan tidak berpuashati dengan keputusan Mahkamah dan kini merayu ke Mahkamah Tinggi. Kes Plaintif [3] Pada sekitar November 2016, Plaintif dan Defendan telah mengadakan beberapa siri perbincangan bagi menjalankan dan/atau menghoskan beberapa acara berbasikal dan/atau larian bertemakan "Mutlaq". Plaintif dan Defendan kemudiannya telah bersetuju untuk bekerjasama dan Defendan telah mengeluarkan surat bertarikh 06/12/2016 (Ekshibit P9) (selepas ini dirujuk S/N r21yaGM6R0io1CGBSLmYdw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 3 of 18 sebagai "Surat Pelantikan tersebut") yang mana melalui Surat Perlantikan tersebut, Pengerusi Defendan yang mewakili Ahli Lembaga Pengarah Defendan pada ketika itu iaitu Encik Khairuddin bin Khalid (SD4) telah melantik Plaintif sebagai pengurus acara bagi acara "Mutlaq Ipoh Night Fun Ride" yang akan dijalankan oleh Defendan pada 25/03/2017 (selepas ini dirujuk sebagai "Mutlaq Ipoh Night Fun Ride tersebut"). [4] Menerusi Surat Perlantikan tersebut juga, Pengerusi Defendan (SD4) telah bersetuju untuk melantik dan memberi kuasa kepada Pengurusnya sendiri pada ketika itu, iaitu Encik Aminuddin bin Zainuddin (SD1) dan juga Pengurus Pembangunan Perniagaannya pada ketika itu, iaitu Puan Ismanita binti Ishak (SD2) sebagai Wakil /Ejen Defendan Yang Dilantik oleh Ahli Lembaga Pengarah Defendan tersebut untuk berurusan dengan Plaintif bagi menjayakan acara Mutlaq Ipoh Night Fun Ride tersebut. SD1 juga telah menyerahkan kepada pihak Plaintif suatu surat bertarikh 31/12/2016 (Ekshibit P10) yang telah ditandatangani oleh SD4 yang mengesahkan bahawa SD1 adalah wakil kepada pihak Defendan dan pihak yang berkenaan dapat memberi kerjasama di dalam segala urusan berkaitan Defendan. [5] Pada setiap masa yang material, tiada sebarang makluman yang nyata yang telah diberikan oleh Defendan kepada Plaintif dalam kandungan Surat Perlantikan tersebut yang menyatakan tentang had kuasa yang diberikan oleh Defendan kepada SD1 dan SD2 tersebut tatkala berurusan dengan Plaintif. S/N r21yaGM6R0io1CGBSLmYdw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 4 of 18 [6] Berdasarkan kepada Surat Perlantikan tersebut, Plaintif pada sekitar Disember, 2016 telah pun memulakan kerja-kerjanya sebagai pengurus acara bagi acara Mutlaq Ipoh Night Fun Ride tersebut yang mana Plaintif telah antaranya mula mempromosi acara Mutlaq Ipoh Night Fun Ride dan membuka penyertaan orang ramai melalui laman sesawang ("website") Plaintif sendiri dan juga menerusi halaman Facebook Plaintif sendiri. [7] Berikutan dengan kerja-kerja pemasaran dan promosi yang dilakukan oleh Plaintif, ramai peserta telah berdaftar dan membuat bayaran penyertaan kepada Plaintif untuk menyertai acara Mutlaq Ipoh Night Fun Ride tersebut. [8] Pihak Defendan juga telah turut berkongsi ("share") promosi dan poster yang dibuat oleh Plaintif berkenaan dengan acara Mutlaq Ipoh Night Fun Ride tersebut di halaman Facebook Defendan sendiri pada 21/12/2016 bagi mempromosikan acara Mutlaq Ipoh Night Fun Ride tersebut. [9] Kemudiannya, selaras dengan Surat Perlantikan tersebut, Plaintif dan Defendan melalui SD1 dan SD2 telah memasuki Sponsorship Agreement tersebut yang bertarikh 02/01/2017 (Ekshibit P1) di mana Defendan telah melantik Plaintif sebagai "the Event Owner”' dan Defendan sebagai ''the Sponsor”. Acara-acara yang dipersetujui untuk diadakan bagi tiga(3) tahun berturut-turut adalah Mutlaq Ipoh Night Fun Ride, Mutlaq Jamboree dan Mutlaq Marathon. S/N r21yaGM6R0io1CGBSLmYdw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 5 of 18 [10] Pada 15/02/2017, pihak Plaintif telah dijemput oleh Defendan untuk menghadirkan diri bagi suatu mesyuarat di pejabat Defendan yang mana pada mesyuarat tersebut, SD4 telah memaklumkan kepada pihak Plaintif bahawa Defendan tidak akan meneruskan dengan Sponsorship Agreement tersebut serta ingin membatalkan acara Mutlaq Ipoh Night Fun Ride tersebut. [11] Defendan kemudiannya telah mengeluarkan surat bertarikh 16/02/2017 (Ekshibit P14) (selepas ini dirujuk sebagai "Surat Pembatalan Defendan tersebut") kepada Plaintif antara lainnya bagi menyatakan bahawa Sponsorship Agreement tersebut adalah tidak sah dan enggan meneruskan dengan sebarang terma yang terkandung dalam Sponsorship Agrement tersebut. [12] Plaintif melalui surat bertarikh 27/02/2017 (Ekshibit P15) pula telah membalas kepada Surat Pembatalan Defendan tersebut bagi membantah dan menyatakan ketidaksetujuannya terhadap tindakan Defendan tersebut. [13] Akibat daripada tindakan Defendan tersebut, Plaintif telah mengalami kerosakan kepada perniagaannya, ditimpa kesulitan dan kerugian masa, tenaga dan perbelanjaan yang besar terutama sekali apabila Plaintif terpaksa menelan kos transaksi pengembalian wang-wang pendaftaran yang telah dibayar oleh peserta-perserta. [14] Oleh kerana Defendan telah membatalkan Sponsorship Agreement tersebut tanpa sebarang kemungkiran dilakukan oleh Plaintif, maka seperti S/N r21yaGM6R0io1CGBSLmYdw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 6 of 18 yang diperuntukkan dalam klausa 15.2 dan 15.2.1 dalam Sponsorship Agreement tersebut, Defendan harus membayar ganti rugi tertentu ("liquidated damages") sejumlah RM100,000.00 bagi setiap acara kepada Plaintif sebagai pampasan untuk kesemua kerugian yang mana ianya tidak terhad kepada kerugian terhadap reputasi yang dialami oleh Plaintif. Oleh kerana Perjanjian adalah untuk mengadakan sebanyak tiga (3) acara di dalam setahun bagi tempoh (3) tahun, dan jumlah keseluruhannya adalah sebanyak sembilan (9) acara, maka Plaintif menuntut gantirugi tertentu (liquidated damages) sebanyak RM900,000.00. Pihak plaintif turut menuntut gantirugi khas sebanyak RM44,202.00, gantirugi untuk kerosakkan reputasi, gantirugi am berserta faedah dan kos. Kes Defendan [15] Defendan adalah sebuah Koperasi berdaftar di bawah Akta Koperasi 1993 dan merupakan koperasi yang ditubuhkan untuk menyediakan bantuan pinjaman dan kebajikan kepada anggotanya iaitu pekerja-pekerja Lembaga Air Perak (LAP). [16] Pihak Defendan setuju bahawa melalui satu surat Defendan bertarikh 06/12/2016 kepada Plaintif (Ekshibit P9), Pengerusi kepada Defendan (SD4) telah menulis surat kepada Plaintif melantik Plaintif sebagai Pengurus Acara untuk satu (1) acara iaitu Mutlaq Ipoh Night Fun Ride yang dicadangkan akan berlansung pada 25/03/2017. S/N r21yaGM6R0io1CGBSLmYdw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 7 of 18 [17] Pihak Defendan juga mengakui bahawa di dalam Ekshibit P9 tersebut, Defendan telah memaklumkan kepada Plaintif bahawa untuk sebarang maklumat berkaitan Koperasi Mutlaq Perak Berhad (Defendan), pihak Plaintif boleh berurusan dengan pegawai Koperasi iaitu Pengurus Koperasi, En Aminuddin b. Zainuddin (SD1) dan Pengurus Pembangunan Perniagaan Mutlaq, Puan Ismanita bt Ishak (SD2). (selepas ini dirujuk sebagai “kedua-dua pegawai Koperasi tersebut”) [18] Walaubagaimanapun, Defendan menyatakan bahawa di dalam Ekshibit P9 tersebut, Defendan tidak pernah samada tersurat atau tersirat menyatakan dan/atau memberi representasi bahawa Defendan memberi kuasa kepada kedua-dua pegawai Koperasi tersebut dan/atau kedua-dua pegawai Koperasi tersebut mempunyai kuasa dan keupayaan untuk memasuki sebarang kontrak bagi pihak Defendan. [19] Ahli Lembaga Defendan kemudian telah menyedari bahawa terdapat kononnya satu Perjanjian yang dikenali sebagai Sponsorship Agreement bertarikh 02/01/2017 (Ekshibit P1) diantara Plaintif dengan Defendan di mana SD1 telah kononnya menandatangani P1 tersebut bagi pihak Defendan. [20] Sejurus selepas menyedari Sponsorship Agreement tersebut kira-kira seminggu selepas menerima salinan bersetem Perjanjian tersebut, Defendan telah mengeluarkan Surat Defendan kepada Plaintif bertarikh 16/02/2017 (Ekshibit P14) yang telah memaklumkan kepada Plaintif bahawa kedua-dua pegawai Koperasi tersebut tidak mempunyai kuasa untuk memasuki S/N r21yaGM6R0io1CGBSLmYdw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 8 of 18 Sponsorship Agreement bagi pihak Defendan. [21] Pihak Defendan berpendirian bahawa Defendan tidak pernah memasuki dan/atau bersetuju untuk memasuki Sponsorship Agreement tersebut dengan Plaintif. Defendan seterusnya menyatakan bahawa berkenaan Sponsorship Agreement tersebut adalah dibuat tanpa pengetahuan, persetujuan dan kebenaran Defendan. [22] Selari dengan Akta Koperasi 1993 dan Undang-Undang Kecil Defendan perkara .. 46 fasal (u) dan perkara 76 fasal (1) dan (2), adalah diperuntukkan bahawa hanya Pengerusi, Setiausaha, Bendahari dan Anggota Lembaga lain yang diluluskan oleh Lembaga sahaja yang boleh menandatangani bagi pihak Defendan dalam sebarang Perjanjian. Defendan menyatakan bahawa kedua- dua pegawai Koperasi tersebut pada segala masa yang material bukan merupakan Ahli Lembaga Defendan. [23] Defendan menafikan bahawa Defendan memungkiri Perjanjian tersebut kerana Defendan tidak pernah bersetuju untuk memasuki Perjanjian tersebut sejak dari awal lagi. Justeru, Defendan tidak terikat dengan terma- terma Perjanjian tersebut yang tidak pernah dipersetujui oleh Defendan. [24] Tuntutan Plaintif dalam tindakan ini adalah tidak berasas, melampau serta merupakan satu penyalahgunaan prosiding Mahkamah untuk mengaut keuntungan dan kekayaan tidak adil atas Defendan. S/N r21yaGM6R0io1CGBSLmYdw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 9 of 18 Keputusan Mahkamah [25] Isu-isu untuk dibicarakan adalah seperti berikut: a) Sama ada Sponsorship Agreement bertarikh 02/01/2017 (Ekshibit P1) adalah suatu perjanjian yang sah dan mengikat Plaintif dan Defendan. b) Sekiranya Sponsorship Agreement tersebut adalah sah dan mengikat Plaintif dan Defendan, samada Defendan telah memungkiri Sponsorship Agreement tersebut. c) Sama ada Plaintif berhak kepada gantirugi seperti yang dituntut di dalam pernyataan tuntutan. Sama ada Sponsorship Agreement bertarikh 02/01/2017 adalah suatu perjanjian yang sah dan mengikat Plaintif dan Defendan. [26] Pihak Defendan telah memohon khidmat Plaintif di mana Defendan sendiri telah, pada tarikh 06/12/2016, mengeluarkan Surat Pelantikan (Ekshibit P9) kepada Plaintif yang ditandatangani oleh dan dikeluarkan melalui SD4 selaku Pengerusi Lembaga Koperasi Defendan. Selanjutnya, SD1 telah menyerahkan Surat Pengesahan Wakil Defendan (Ekshibit P10) yang bertarikh 31/12/2016 yang ditandatangani oleh dan dikeluarkan melalui SD4 di atas kapasitinya sebagai Pengerusi Defendan dan Lembaga Koperasi Defendan kepada Plaintif. Surat Pengesahan Wakil Defendan (Ekshibit P10) tersebut telah mengesahkan dan memperakui kepada Plaintif bahawa SD1 adalah wakil kepada pihak Defendan dan pihak yang berkenaan dapat memberi kerjasama di dalam segala urusan berkaitan Defendan. S/N r21yaGM6R0io1CGBSLmYdw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 10 of 18 Lanjutan daripada itu, kedua-dua pihak telah memasuki Sponsorship Agreement dimana SD1 telah menandatangani Sponsorship Agreement tersebut sebagai wakil dan/atau ejen Defendan dan SD2 telah meletakkan tandatangan sebagai saksi. [27] Pihak Defendan menyatakan bahawa SD1 tidak mempunyai kapasiti atau kuasa untuk menandatangani Sponsorship Agreement tersebut kerana beliau bukan seorang Ahli Lembaga kepada Defendan. Semasa memberi keterangan, SD1 dan SD2 mengakui akan kesilapan mereka dalam menandatangani Sponsorship Agreement tersebut kerana mereka bukan orang yang berkuasa dan mempunyai autoriti untuk berbuat demikian. Walaubagaimanapun, merujuk kepada Surat Pengesahan Wakil Defendan (Ekshibit P10) yang telah dikeluarkan oleh pihak Defendan sendiri dan merujuk kepada Undang-Undang Kecil Defendan perkara 46 ..fasal (u) dan perkara 76 fasal (1) dan (2), Mahkamah mendapati bahawa SD1 merupakan “orang lain dan /atau pegawai yang telah diberi kuasa oleh Lembaga”. [28] Pihak Plaintif juga telah bersandarkan kepada represantasi - represantasi yang dikemukakan oleh SD1 dan SD2 berkenaan otoriti yang telah diberikan oleh pihak Defendan melalui Surat Pelantikan bertarikh 06/12/2016 (Ekshibit P9), Surat Pengesahan Wakil Defendan (Ekshibit P10) dan segala perbincangan yang telah diadakan diantara Plaintif dan SD1 dan SD2 termasuk surat-menyurat. Pihak Plaintif tidak mempunyai sebarang makluman atau pengetahuan bahawa SD1 tidak mempunyai autoriti untuk menandantangani dan memasuki sebarang perjanjian dengan pihak Plaintif dan pihak Plaintif juga S/N r21yaGM6R0io1CGBSLmYdw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 11 of 18 tidak mempunyai sebarang pengetahuan tentang undang-undang kecil Defendan. Mahkamah merujuk kepada kes Choo Chin Thye v. Concrete Engineering Products Bhd & Other Appeals [2005] 2 CLJ 323 dimana Mahkamah Rayuan telah memutuskan seperti berikut: “Now the difference between actual and apparent or ostensible authority and the principles applicable thereto are adequately explained by Diplock LJ in Freeman & Lockyer v. Buckhurst Park Properties (Mangal) Ltd. from page 502 to 504 as follows: It is necessary at the outset to distinguish between 'actual authority' of an agent on the one hand, and an 'apparent' or 'ostensible' authority on the other. Actual and apparent authority are quite independent of one another. Generally, they do exist and coincide, but either may exist without the other and their respective scopes may be different. As I shall endeavour to show, it is upon the apparent authority of the agent that the contractor normally relies in the ordinary course of business when entering into contracts. An actual' authority is a legal relationship between principal and agent created by a consensual agreement to which they alone are parties. Its scope is to be ascertained applying ordinary principles of construction of contracts including any proper implications from the express words used, the usage of trade, or the course of business between the parties. To this agreement the contract is a stranger; he may be totally ignorant of the existence of any authority on the part of the agent. Nevertheless, if the agent does not enter into a contract pursuant to the 'actual' authority, it does not create contractual rights and liabilities between the principal and the contractor An 'apparent' or 'ostensible' authority, on the other hand, is a legal relationship between the principal and the contractor created by representation, made by the principal to the contractor, intended to be and S/N r21yaGM6R0io1CGBSLmYdw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 12 of 18 in fact acted upon by the contractor, that the agent has authority to enter on behalf of the principal into a contract of a kind within the scope of the 'apparent' authority so as to render the principal liable Further learned counsel quoted the following excerpt from Armagas Ltd. v. Mundogas SA [1985] 1 Llyods LR 1 regarding the principles applicable to ostensible or apparent authority: Stephenson LJ held: Knowing that they should have referred to the defendants ' top management for confirmation of Magelssen's representation that he had their authority and should not have relied on his representation - they took the risk of Magelssen's representation of authority being untrue and cannot hold the defendants responsible for his fraudulent misrepresentation either in contract or in tort. Mr. Siew Yew Ming for ICP contended that Choo had ostensible and apparent authority to act on behalf of CEPCO. He referred to the principle in Freeman & Lachyor v. Buchhurst Park Properties (Management) Ltd & Another [1964] 2 QB 480 which laid down the conditions, which must be fulfilled to entitle a contractor to enforce against a company, a contract entered into on behalf of the company by an agent who had no actual authority to do so. He contended that all the conditions have been satisfied and that Choo had ostensible or apparent authority to make a contract on behalf of CEPCO. The learned trial judge, in his judgment referred to the conditions as laid down by Lord Diplock in Freeman 's case. These conditions are: (1) That a representation that the agent had the authority to enter on behalf of the company with a contract of the kind sought to be enforced was made to the contractor; (2) That such representation was made by a person or persons who had actual authority to manage the business of the company either generally or in respect of those matters to which the contract relates; S/N r21yaGM6R0io1CGBSLmYdw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 13 of 18 (3) That he (the contractor) by such representation to enter into the contract, that is, that he in fact relied on it; and (4) That under its memorandum or articles of association the company was not deprived of the capacity either to enter into a contract of the kind sought to be enforced or to delegate authority to enter into a contract of that kind to the agent. The learned trial judge then applied the facts of the case to the four tests and made the following findings: The representation, that Choo has authority to enter into the management agreement, in this case comes mainly from the acts and deeds of Choo himself. He had represented to ICP that he has mandate to represent CEPCO on this matter. Besides this, the acts and deeds of CEPCO's staff and the board itself also contributed to such representation. Having fulfilled all the four conditions set out in the tests, I have to return a finding that Choo had apparent or ostensible (including implied) authority from CEPCO to enter into the management agreement. Berdasarkan kes di atas dan syarat-syarat yang telah ditetapkan, apabila menggunakan fakta kes untuk empat (4) ujian yang telah ditetapkan, Mahkamah mendapati bahawa SD1 mempunyai ‘apparent or ostensible (including implied) authority’ untuk memasuki Sponsorship Agreement tersebut. Oleh yang demikian, Mahkamah mendapati bahawa Sponsorship Agreement tersebut adalah suatu perjanjian yang sah yang mengikat Plaintif dan Defendan. S/N r21yaGM6R0io1CGBSLmYdw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 14 of 18 Sekiranya Sponsorship Agreement tersebut adalah sah dan mengikat Plaintif dan Defendan, samada Defendan telah memungkiri Sponsorship Agreement tersebut. [29] Oleh kerana Sponsorship Agreement tersebut adalah suatu perjanjian yang sah yang mengikat Plaintif dan Defendan, maka pihak Defendan telah memungkiri Sponsorship Agreement tersebut melalui surat bertarikh 16/2/2017 (Ekshibit P14) kepada pihak Plaintif yang, diantara lainnya, memaklumkan bahawa SD1 dan SD2 tidak mempunyai kuasa untuk menandatangani sebarang perjanjian bagi pihak Defendan. [30] Merujuk kepada Sponshorship Agreement, klausa 15 adalah seperti berikut; 15 The Effects of Termination 15.1 Upon expiry or earlier termination of this Agreement for whatever reason:- ……………………… 15.1.5 In the event that Event Manager opt not to continue with the Event:- (a) Clause 15.1 shall be applicable; and 15.1.6 The Event Manager shall pay liquidated damages of RM100,000 to sponsor as compensation for all lossess incurred including but not limited to the loss of reputation 15.2 In the event Sponsor terminate this Agreement despite no breach committed by the Event Manager: - S/N r21yaGM6R0io1CGBSLmYdw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 15 of 18 15.2.1 Sponsor shall pay liquidated damages of RM100,000 per event to the Event Manager as compensation for all losses incurred, including but not limited to the loss of reputation Di dalam kes ini, Sponsor adalah pihak Defendan maka Plaintif menuntut seperti klausa 15.2.1 di atas iaitu RM100,000.00 bagi setiap acara dimana pihak-pihak sepatutnya mengadakan tiga(3) acara setiap tahun bagi tiga (3) tahun berturut-turut. [RM100,000.00 X 3] x 3 years = RM900,000.00 Merujuk kepda klausa 15.1.6, adalah didapati bahawa sekiranya Event Manager iaitu pihak Plaintif memilih untuk tidak meneruskan dengan Acara, mereka hendaklah membayar RM100,000.00 termasuk tetapi tidak terhad kepada kehilangan reputasi kepada pihak Defendan. Mahkamah mendapati bahawa terma-terma di dalam Sponsorship Agreement tersebut lebih memihak kepada pihak Plaintif. Oleh kerana pihak Plaintif telah hanya menjalankan kerja dan membuat persiapan untuk satu acara sahaja sebelum pihak Defendan memungkiri Sponsorship Agreement tersebut, maka demi kepentingan keadilan (in the interests of justice), Mahkamah telah mengawadkan jumlah gantirugi tertentu sebanyak RM100,000.00 bagi satu acara sahaja. S/N r21yaGM6R0io1CGBSLmYdw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 16 of 18 [31] Bagi acara pertama yang sepatutnya diadakan, pihak Plaintif telah berusaha mendapat tajaan untuk acara, menanggung kos dan membayar kontraktor bagi kerja yang dilakukan, membuka penyertaan bagi acara tersebut, dsbnya. Selanjutnya apabila Sponsorship Agreement tersebut dibatalkan, pihak Plaintif terpaksa menelan kos untuk mengembalikan wang pendaftaran peserta. Pihak Plaintif telah membuktikan bahawa kerja-kerja persiapan telah dilakukan dan pihak Plaintif juga telah menunjukkan bukti bahawa akibat pembatalan acara tersebut, mereka terpaksa menanggung kerugian sebanyak RM44,202.00. Pihak Plaintif telah membuktikan jumlah ini melalui keterangan saksi-saksi Plaintif dan ekshibit-ekshibit yang telah dikemukakan. Mahkamah merujuk kepada kes Koperasi Sahabat Amanah Ikhtiar Berhad v. RHB Investment Bank Berhad [2022] MLRAU 252 dimana diputuskan seperti berikut: “[27] The House of Lords case of Caparo Industries Plc v. Dickman [1990] 2 AC 605 makes reference to the "three-fold test" of 1. Harm must be reasonably foreseeable as a result of the defendant's conduct (foreseeability test’); 2. The parties must be in a relationship of proximity (proximity test) and 3. It must be fair, just and reasonable to impose liability (policy consideration). This test was popularized by Bingham LJ in the Court of Appeal in Caparo Industries case (supra) where he confessed as follows: "It is not easy, or perhaps possible, to find a single proposition encapsulating a comprehensive rule to determine when persons S/N r21yaGM6R0io1CGBSLmYdw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 17 of 18 are brought into a relationship which creates a duty of care upon those who make statements towards those who may act upon them and when persons are not brought into such a relationship." [122] The following observations of circumstances under which a bank may be liable for negligence from the Canadian case of Semac Industries Ltd v. 1131426 Ontario Ltd, [2001] O J No 3443 (SCJ), referred to us by learned counsel for the plaintiff, have been helpful in our finding of a duty of care in the factual matrix of the instant appeal: (a) Although the common law imposes no duty to rescue a stranger, banks are the focal point of the commercial operations of our society. They are paid for the services they provide and generally enjoy good profit margins. They operate in a regulated environment where there are relatively few participants. In return for these privileges they should owe a duty to those who are asked by their customers to deal with them to not knowingly permit their facilities to be used for fraudulent purposes; (See para 65) (b) At the time of becoming aware of the use of its facilities for a fraudulent purpose the proximity and foreseeability of harm necessary for negligence arises; (see para 65) (c) If a bank knows of the customer's fraud in the use of its facilities or has reasonable grounds for believing or is put on its inquiry and fails to make reasonable inquiry, the bank will be liable to those suffering a loss from the fraud; Oleh yang demikian, Mahkamah telah membenarkan tuntutan Gantirugi khas seperti yang dioohon di dalam pernyataan tuntutan sebanyak RM44,200.00. S/N r21yaGM6R0io1CGBSLmYdw **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 18 of 18 [32] Bagi tuntutan kehilangan reputasi, Mahkamah tidak memberi apa-apa awad untuk kehilangan reputasi kerana pihak Plaintif tidak mengemukakan apa-apa keterangan atau bukti mengenai item yang dituntut ini. Bertarikh pada 27 November, 2023 ……………………………...……... ( Priscilla Hemamalini Nadarajan) Hakim Mahkamah Sesyen Sivil 2 Ipoh, Perak ------------------------------------------------------------------------------------------------------- Peguamcara: Bagi pihak Plaintif : Ihab bin Yusop dan Ayu Mazira bt Abdullah dari Tetuan Hazli bin Ihab Bagi pihak Defendan: Zaim Zhafri bin Azhar dari Tetuan Taqrir Akramin & Co S/N r21yaGM6R0io1CGBSLmYdw **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

WA-24NCC-323-07/2021

PEMOHON 1. ) ELISABETH REGINA MARIA GABRIELE VON PEZOLD 2. ) ANNA ELEONORE ELISABETH WEBBER (NEE VON PEZOLD) 3. ) HEINRICH BERND ALEXANDER JOSEF VON PEZOLD 4. ) MARIA JULIANE ANDREA CHRISTIANE KATHARINA BATTHYANY (NEE VON PEZOLD) 5. ) GEORG PHILIPP MARCEL JOHANN LUKAS VON PEZOLD 6. ) FELIX ALARD MORITZ HERMANN KILIAN VON PEZOLD 7. ) JOHANN FRIEDRICH GEORG LUDWIG VON PEZOLD 8. ) ADAM FRIEDRICH CARL LEOPOLD FRANZ SEVERIN VON PEZOLD RESPONDEN REPUBLIC OF ZIMBABWE

ARBITRATION: International arbitration - Applications for recognition and enforcement of awards of the International Centre for Settlement of Investment Disputes (ICSID) under - Sections 4, 5 and 6 of the Convention on the Settlement of Investment Disputes Act 1966 (Revised 1989) (ICSID Act), PRIVATE INTERNATIONAL LAW: Where foreign state respondent asserts sovereign immunity - Whether by Art 54(2) of the ICSID Convention the foreign state respondent has agreed to submit itself to the jurisdiction - Bilateral Investment Treaties - Malaysia High Court Jurisdiction - Procedural framework for service out of jurisdiction - Assets for enforcement - Domestic court enforcement - Foreign sovereign assets PUBLIC INTERNATIONAL LAW: Sovereign state immunity - Interpretation of the ICSID Convention - Whether the ICSID Convention excludes any claim for foreign state immunity in proceedings for the recognition and enforcement of an award - Meaning of recognition and enforcement in Art 54 and execution in Art 55 - Where Art 55 provides that nothing in Art 54 shall be construed as derogating from the law in force in any Contracting State in relation to immunity from execution

27/11/2023

YA Tuan Atan Mustaffa Yussof Ahmad

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=518acfe3-4d1a-42c9-bd52-6cf1d3e9f8ff&Inline=true

DALAM MAHKAMAH PERUSAHAAN MALAYSIA 1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR ORIGINATING SUMMONS NO: WA-24NCC-323-07/2021 BETWEEN 1. ELISABETH REGINA MARIA GABRIELE VON PEZOLD 2. ANNA ELEONORE ELISABETH WEBBER (NEE VON PEZOLD) 3. HEINRICH BERND ALEXANDER JOSEF VON PEZOLD 4. MARIA JULIANE ANDREA CHRISTIANE KATHARINA BATTHYANY (NEE VON PEZOLD) 5. GEORG PHILIPP MARCEL JOHANN LUKAS VON PEZOLD 6. FELIX ALARD MORITZ HERMANN KILIAN VON PEZOLD 7. JOHANN FRIEDRICH GEORG LUDWIG VON PEZOLD 8. ADAM FRIEDRICH CARL LEOPOLD FRANZ SEVERIN VON PEZOLD …PLAINTIFFS AND REPUBLIC OF ZIMBABWE …DEFENDANT JUDGMENT [1] In this case, the Von Pezold family seeks recognition of ICSID arbitration awards against the Republic of Zimbabwe, a matter intertwining international law with sovereign interests. The heart of the dispute concerns expropriated properties, raising critical questions about the enforceability 27/11/2023 10:41:29 WA-24NCC-323-07/2021 Kand. 105 S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 of international arbitration awards in domestic courts. The Republic of Zimbabwe challenges this Court’s jurisdiction, highlighting the complex interplay between international agreements and national laws. My task is to navigate these legal intricacies, ensuring a fair and just resolution in accordance with the principles of law. This judgment will not only resolve a specific dispute but also contribute to the broader dialogue on international law and state sovereignty. Background facts [2] The parties in this matter primarily consist of the Von Pezolds as the Plaintiffs, and the Republic of Zimbabwe as the Defendant. [3] The Plaintffs originally held an 86.49% interest in three Zimbabwean companies - Border Timbers Limited, Border International (Private) Limited, and Hangani Development Co. (Private) Limited - collectively referred to as the “Border Companies.” Both the Plaintffs and the Border Companies had substantial investments in three large agricultural estates in Zimbabwe: Forrester Estate, Border Estate, and Makandi Estate. [4] Between 1980 and 2000, the Defendant carried out land reforms under its Land Reform Programme (“the Land Reforms”), aimed at modifying the ethnic distribution of land ownership. These reforms resulted in the expropriation S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 of various properties associated with the aforementioned estates between 2000 and 2007. [5] Consequently, two separate but related arbitration cases were initiated. On 6.11.2010, the Plaintffs filed a Request for Arbitration against the Defendant with the International Centre for Settlement of Investment Disputes (“ICSID”). The arbitral tribunal was established pursuant to the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (“ICSID Convention”). This arbitration case is designated as ICSID Case No. ARB/10/15, on 6.11.2010. They invoked the Germany- Zimbabwe Bilateral Investment Treaty (“German BIT”) signed on 29.9.1995, and the Switzerland-Zimbabwe BIT signed on 15.8.1996 (“Swiss BIT”). These arbitration proceedings will be referred to as the “Von Pezold Arbitration”. [6] The Border Companies began the second arbitration, identified as ICSID Case No. ARB/10/25, on 3.12.2010 under the Swiss BIT (“Borders Arbitration”). Although the focus of both arbitrations was on identical losses related to the Border Estate, they were not formally consolidated. [7] On 28.7.2015, an Arbitral Tribunal rejected the Defendant’s jurisdictional arguments and ruled in favour of the Plaintffs, granting both pecuniary and non-pecuniary reliefs. The award handed down by the Arbitral Tribunal (“the Award”) found the Defendant liable for breaching the treaties S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 through various expropriation and mistreatment measures damaging the Plaintffs’ investments. It ordered the Defendant to pay amounts totaling over US$200 million in compensation and damages. [8] The Defendant filed an Annulment Application on 21.10.2015 in respect of the Award, but this was dismissed by the ICSID Annulment Committee on 21.11.2018 (“the Decision on Annulment”). Notably, before the annulment application was made, the Plaintiffs had already divested their 86.49% stake in the Border Companies. [9] Despite the Defendant issuing a “Letter of Assurances” earlier on 30.3.2016, pledging to honour the arbitral awards if not annulled, these awards remain unfulfilled. [10] The case has now moved to Malaysian courts. On 27.7.2021, the Plaintiffs filed the Originating Summons in these proceedings and an Originating Summons No. WA- 24NCC-322-07/2021 (“OS 322”) - both referred to as “the Originating Summonses” - in an attempt to enforce the ICSID awards. This Originating Summons is in respect of the Award and OS 322 is in respect of the Decision on Annulment. The Plaintffs were granted Orders for Service Out of Jurisdiction by the Senior Assistant Registrar in respect of this Originating Summons and OS 322 respectively on 25.8.2021 (“Orders for Service Out of Jurisdiction”), enabling them to serve both this Originating Summons and OS 322 and affidavits on the Defendant out S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 of jurisdiction. The Defendant challenged the jurisdiction of the court on 17.1.2022 by filing Enclosure 11 in OS 322 and Enclosure 11 in this Originating Summons to set aside the Orders for Service Out of Jurisdiction respectively. Plaintiff’s application in this Originating Summons (Enclosure 1) [11] In this Originating Summons, the Plaintiff sought mainly for the following: a) A declaration that the Award by the arbitral tribunal established pursuant to the ICSID Convention in ICSID Case No. ARB/10/15 be recognised as binding and enforceable in the same manner as if it is a final judgment of this Court; and b) That the pecuniary obligations imposed by the Award be enforced as if it were a final judgment of this Court, including the enforcement of substantial monetary obligations awarded for the Forrester, Makandi and Border Estates, costs, pre-award and post-award compound interest, and other reliefs such as moral damages, with the costs of the application to be borne by the Defendant. S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 Defendant’s application to set aside service in Enclosure 11 [12] In Enclosure 11, the Defendant sought, inter alia, the following: a) An order that the Order dated 25.8.2021 (Enclosure 6) giving leave to serve the Originating Summons dated 27.7.2021 out of jurisdiction on the Defendant be discharged and/or set aside; b) An order that service on the Defendant of the Originating Summons dated 27.7.2021 be set aside; c) A declaration that in the circumstances of this case, this Court has no jurisdiction over the Defendant in respect of the subject matter of the claim or the relief or remedy sought by the Plaintiffs in the Originating Summons dated 27.7.2021 against the Defendant; d) A declaration that this Court should not assume jurisdiction over the Plaintiffs’ action in the Originating Summons dated 27.7.2021; and e) An order that the Originating Summons dated 27.7.2021 is hereby set aside or struck out. S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 Applications in OS 322 [13] In OS 322, via the originating summons, The Plaintiffs seek to have the Decision on Annulment recognised and enforced as a final court judgment, including the enforcement of pecuniary obligations of specific sums as legal costs by the Defendant, with additional relief as deemed fit by the court. The Defendant, via its application in Enclosure 11 therein mainly seeks to discharge or set aside the order allowing service of OS 322 out of jurisdiction, contest the court's jurisdiction over the case, and requests the summons be set aside or struck out. Scope of judgment [14] In the context of this case, this Originating Summons and OS 322 were jointly heard, centring on fundamentally the same facts, issues and subject matter, although each pertains to distinct awards made by the Tribunal – this Originating Summons to the Award and OS 322 to the Decision on Annulment. The issues and subject matter of the Originating Summonses remain consistent as they emanate from the same arbitration proceedings, the Von Pezolds Arbitration. However, each originating summons involved two applications: one by the Plaintiff under the originating summons seeking recognition of the respective awards as binding and enforceable in the same manner as if it is a final judgment of this Court and the other by way of the Defendant’s notice of application aiming to set aside the S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 order of service out of jurisdiction for each of the Originating Summonses. Separate Grounds of Judgment have been written for this Originating Summons and OS 322 which are identical in reasoning and structure, differing only in their reference to either the Award (in this Originating Summons) or the Decision on Annulment (in OS 322). In these Grounds of Judgment, I will address both the Award and Decision on Annulment for expediency but my decision will only be in respect of the Award which is the subject matter of this Originating Summons. [15] These grounds relate to both my decisions in Enclosure 1 and Enclosure 11 save for those under the last two headings in paragraphs 120 to 142 below which relate specifically to my decision in Enclosure 11. Plaintiffs’ submissions [16] The Plaintffs’submissions are summarised as follows: a) The High Court is vested with jurisdiction to decide this Originating Summons and OS 322, pursuant to the incorporation, by the Convention on the Settlement of Investment Disputes Act 1966 (Revised 1989) (“the ICSID Act”), of the ICSID Convention into Malaysian law, enabling the Court to enforce an arbitrator's award as a judicial order, supported by Section 23 of the Courts of Judicature Act 1964 (“CJA”) and judicial interpretations S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 asserting that international agreements, exemplified by the ICSID Convention, gain enforceability in Malaysia only through specific legislative actions, such as the enactment of the ICSID Act. b) In recognising the Award and the Decision on Annulment under the ICSID Convention in Malaysia, it is crucial to consider the Convention's implementation, which introduced significant legal innovations like enabling non-State entities to sue States directly and restricting State immunity, and Malaysia's commitment to these principles through signing and ratifying the Convention and enacting the ICSID Act to incorporate these provisions into its national law. c) Under the ICSID Act, an arbitrator's award made under the Convention is binding and enforceable like a court decree, with the Act defining “Court” as the High Court and incorporating the Convention, which mandates that awards are binding, not subject to appeal except as provided in the Convention, and must be recognised and enforced by Contracting States as if they were final court judgments, subject to each State's laws on judgment execution and state immunity. S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 d) Under Article 54(1) of the ICSID Convention, as incorporated into Malaysian law via the ICSID Act, this Court is both authorised and obligated to recognise the Award and the Decision on Annulment as binding and enforce its pecuniary obligations as if it were a final judgment of a High Court in Malaysia, a requirement fulfilled by the Plaintiffs by providing certified copies of the Award and the Decision on Annulment, with their binding nature and non- appealability established under the Convention and its recognition distinct from execution, as per international legal interpretations. e) The Plaintiff’s applications for leave to serve out of jurisdiction, grounded in Order 11 rule 1(1)(M) of the Rules of Court (“ROC 2012”), is valid as the Originating Summonses aim to enforce the Award and the Decision on Annulment, recognised as equivalent to a final judgment of a Malaysian court under the ICSID Act. f) The absence of assets does not detract from the Plaintiffs' right to seek recognition of the Award and the Decision on Annulment and the ancillary reliefs of enforcement and execution of the Award and the Decision on Annulment through their registration as Judgments of the High Court under the Originating Summonses filed pursuant to Sections 4, 5 and 6 of the ICSID Act 1966 and Order 69 rule 8 of the ROC S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 2012, which accords with Malaysia's obligations as a Contracting State that has ratified the ICSID Convention through the enactment of the ICSID Act 1966 to ensure recognition and enforcement of ICSID awards within its territories. g) The Defendant cannot invoke sovereign immunity to avoid the jurisdiction of this Court in determining the Originating Summonses for recognition and enforcement of the Award and the Decision on Annulment under Articles 53(1) and 54(1) of the ICSID Convention and Section 3 of the Malaysian ICSID Act 1966, since state immunity only applies at the execution stage under Article 55 but not the recognition stage. Defendant’s submissions [17] The Defendant’s submissions are summarised as follows: a) The Defendant as a sovereign state it is entitled to immunity from the jurisdiction of the Malaysian courts under the doctrine of sovereign immunity, notwithstanding the provisions of the ICSID Convention as implemented in Malaysia through the ICSID Act. S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 b) Under the restrictive doctrine of sovereign immunity, the Court only has jurisdiction over actions of a commercial or private nature, and in this case, the core dispute arises from the Land Reform Programme implemented by the Defendant, which are actions of a governmental or sovereign nature. Therefore, the Court should decline jurisdiction over the Defendant, as the Land Reforms do not constitute a commercial act or transaction between the Plaintiffs and the Defendant. c) The Defendant has not submitted to the jurisdiction of the Malaysian Courts by waiving its sovereign immunity or agreeing in writing to adjudication in Malaysia. d) In seeking to enforce the “pecuniary obligations” of the Award and the Decision on Annulment in Malaysia, the Plaintiffs have not identified any enforceable assets or properties of the Defendant in Malaysia. As the Defendant’s assets in Malaysia are purely diplomatic, they are immune from jurisdiction and enforcement under international law, with no waiver of immunity against enforcement or execution of these assets. e) In the absence of any procedural framework enacted by Parliament governing the enforcement of ICSID awards under the ICSID Act, the Court cannot on its S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 own motion create or confer new jurisdiction to enforce such awards where no express jurisdiction currently exists. f) Absent any legislation prescribing procedures for service of process on a foreign sovereign state, the Court cannot create or confer jurisdiction to effect service of the Originating Summonses out of jurisdiction where no express jurisdiction currently exists under Malaysian law. g) The High Court's discretionary power under Order 11 rule 1 of the ROC 2012 should not have been exercised to grant leave for serving the Originating Summonses outside of jurisdiction as this Order does not govern service on a sovereign state. h) The Plaintiffs failed to fully disclose all relevant facts and documents, particularly the German and Swiss BITs during the Application for Leave. This lack of full and frank disclosure, coupled with the absence of evidence of the Defendant’s assets in Malaysia, warrants setting aside the Orders for Service Out of Jurisdiction. i) The current proceedings should be stayed as the German BIT and Swiss BIT limit the enforcement of ICSID arbitration awards to Germany, Switzerland, and/or Zimbabwe. Malaysian courts should honour S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 agreed jurisdiction clauses unless exceptional circumstances are proven. Unless the Plaintiffs can justify why they should not be bound by the specific articles of the German and Swiss BITs, which designate Zimbabwe as the jurisdiction for enforcement, the Court should grant a stay in accordance with these clauses. Analysis and findings of the Court Jurisdiction [18] I am satisfied that this Court has the jurisdiction to determine this Originating Summons and OS 322 seeking recognition of the Award and the Decision on Annulment respectively. [19] The legal basis for this Court's jurisdiction arises from the ICSID Act. Section 2 and Section 3 of the ICSID Act provide: “2. Interpretation In this Act, unless the context otherwise requires— “award” means an award given by the arbitrator appointed under the Convention; “Convention” means the Convention on the Settlement of Investment Disputes appearing in the Schedule; “Court” means the High Court. S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 3. Confinement of award An award made by an arbitrator under the Convention shall be binding and may be enforced in the same manner as if it is a decree judgment or order of the Court.” [20] Section 3 of the ICSID Act clearly stipulates that an ICSID award “shall be binding and may be enforced in the same manner as if it is a decree judgment or order of the Court.” The terms “Court”, “award” and “Convention” are clearly defined in Sections 2 and 3 of the ICSID Act to refer specifically to the High Court of Malaya and arbitral awards rendered under the ICSID Convention. [21] Therefore, Parliament has expressly vested jurisdiction on this Court through the ICSID Act to recognise ICSID awards and give effect to the same. The ICSID Act makes the provisions of the ICSID Convention effective in Malaysia and designates the High Court as the Court for the recognition and enforcement of ICSID awards. The designated Court is required to recognise the Award and the Decision on Annulment which is considered an “award” for recognition purposes. [22] I am fortified in this view by the Federal Court's elucidation in Yong Teng Hing (t/a Hong Kong Trading Co) & Anor v Walton International Ltd [2011] 5 MLJ 629 that the High Court possesses original jurisdiction where it is expressly provided for under written law. The Federal Court observed: S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 “[47] Meanwhile, s 23(2) of the CJA stipulates the original jurisdiction of the High Court. It states that: (ii) Without prejudice to the generality of subsection (1), the High Court shall have such jurisdiction as was vested in it immediately prior to Malaysia Day and such other jurisdiction as may be vested in it by any written law in force within its local jurisdiction. (Emphasis added.) [48] Thus, it is established that the High Court possesses original jurisdiction where it is expressly provided for by written law. One instance of a written law giving such jurisdiction is s 28(5) of the Act. As such when a decision of a registrar of trademarks is being appealed against, the High Court is in fact exercising its original jurisdiction and not an appellate jurisdiction. [49] The foregoing proposition is also supported by O 5 5 of the RHC which is entitled ‘Appeals to the High Court from the Subordinate Courts and Statutory Bodies’. Relying the heading as an aid to interpreting the section (see Foo Loke Ying & Anor v Television Broadcasts Ltd [1985] 2 MLJ 35 (SC); Public Prosecutor v Tan Tatt Eek & other appeals [2005] 2 MLJ 685; [2005] 1 CLJ 713) therein, a distinction is made between decisions of subordinate courts being appealed against and that of statutory bodies (which includes tribunals and administrative officers). [23] Here, the ICSID Act satisfies this requirement as it is the legislation giving effect to Malaysia’s commitments under the ICSID Convention. [24] For the next part of this analysis, Section 23 of the CJA is produced below for reference: “(1) Subject to the limitations contained in Article 128 of the Constitution the High Court shall have jurisdiction to try all civil proceedings where - S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 (a) the cause of action arose; (b) the defendant or one of several defendants resides or has his place of business; (c) the facts on which the proceedings are based exist or are alleged to have occurred; or (d) any land the ownership of which is disputed is situated, within the local jurisdiction of the Court and notwithstanding anything contained in this section in any case where all parties consent in writing within the local jurisdiction of the other High Court. (2) Without prejudice to the generality of subsection (1), the High Court shall have such jurisdiction as was vested in it immediately prior to Malaysia Day and such other jurisdiction as may be vested in it by any written law in force within its local jurisdiction.” [25] The Defendant puts forward a contention which revolves around the inherent jurisdiction of the High Court and the application of Section 23 of the CJA and Order 11 rule 1 of the ROC 2012. The Defendant leans on the premise that for the High Court to have jurisdiction, especially in cases involving extra-territorial elements, specific procedural and jurisdictional thresholds must be met, as highlighted in Goodness For Import And Export v Phillip Morris Brands Sarl [2016] 5 MLJ 171 (Federal Court). [26] However, I find that Section 23(2) CJA is directly applicable in this case. This provision states that that the High Court shall also have “...such other jurisdiction as may be vested in it by any written law in force within its local jurisdiction.” As elucidated above, the ICSID Act constitutes that very written law vesting jurisdiction on this Court to recognise the S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 Award and the Decision on Annulment in accordance with Malaysia’s treaty commitments. Section 23(2) CJA is satisfied on the facts through the operation of the ICSID Act. [27] Conversely, I accept the Plaintiffs’ submission that Section 23(1) CJA does not apply here as none of the limbs under that provision govern the present situation where the Award and the Decision on Annulment have already been rendered, conclusively determining the lis between the parties. There is no cause of action still pending before any court or tribunal. The arguments canvassed by the Defendant that under Section 23(1) CJA are therefore irrelevant for establishing jurisdiction in this case. Section 23(2) CJA is the applicable provision instead. [28] The binding nature of ICSID awards against Contracting States is expressly set out in Articles 53, 54 and Article 55 of the ICSID Convention, which is the Schedule to the ICSID Act. These are laid down below: “Article 53 (1) The award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in this award except to the extent that enforcement shall have been stayed pursuant to the relevant provisions of this Convention. (2) For the purposes of this Section, “award” shall include any decision interpreting, revising or annulling such award pursuant to Articles 50, 51 or 52. Article 54 S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 (1) Each Contracting State shall recognise an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State. A Contracting State with a federal constitution may enforce such an award in or through its federal courts and may provide that such courts shall treat the award as if it were a final judgment of the courts of a constituent state. (2) A party seeking recognition or enforcement in the territories of a Contacting State shall furnish to a competent court or other authority which such State shall have designated for this purpose a copy of the award certified by the Secretary-General. Each Contracting State shall notify the Secretary- General of the designation of the competent court or other authority for this purpose and of any subsequent change in such designation. (3) Execution of the award shall be governed by the laws concerning the execution of judgments in force in the State in whose territories such execution is sought. Article 55 Nothing in Article 54 shall be construed as derogating from the law in force in any Contracting State relating to immunity of that State or of any foreign State from execution.” [29] The Plaintiffs have exhibited certified copies of the Award and the Decision on Annulment in accordance with Article 54(2). It is clear that this Court, as the designated “competent court”, is mandated to recognise the Award and the Decision on Annulment by virtue of the ICSID Act implementing the ICSID Convention in Malaysia. S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 [30] Additionally, I also accept the Plaintiffs' contention that Order 11 ROC 2012 does not confer jurisdiction independently in this case. As held by the Federal Court in Petrodar Operating and Matchplan (M) Sdn Bhd & Anor v William D Sinrich & Anor [2004] 2 MLJ 424, once the court is clothed with extra-territorial jurisdiction under Section 23 CJA, Order 11 becomes a mere procedural formality for enabling the plaintiff to effect service abroad. Here, jurisdiction already exists by law through Section 23(2) CJA read with the ICSID Act. Recourse to Order 11 ROC 2012 is therefore unnecessary. [31] In light of the above analysis, I find that the Plaintiffs have satisfactorily established the jurisdiction of this Court over the present proceedings. The originating summons is properly before this Court and I shall proceed to deliberate on this matter. Sovereign immunity [32] At the outset, it must be emphasised that the Plaintiffs presently seek recognition, and not yet execution, of the Award and the Decision on Annulment under the Originating Summonses. [33] The Defendant contends that it is immune from both the present proceedings on the enforcement of the Award and the Decision on Annulment as well as any eventual execution measures, due to its status as a sovereign state. S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 It argues that it has not submitted to the jurisdiction of the Malaysian Court or waived its sovereign immunity. Specifically, the Defendant submitted that it is immune from the proceedings to recognise the Award and the Decision on Annulment, as well as their enforcement and/or execution against its assets and/or properties in Malaysia, because it has not submitted to the jurisdiction of the Malaysian Court or waived its immunity as a sovereign state. [34] With due consideration, I respectfully find that the Defendant's claim of sovereign immunity is not applicable in this context. [35] In Sodexo Pass International SAS v Hungary [2021] NZHC 371, the New Zealand High Court considered the interplay between the ICSID Convention and sovereign immunity. Sodexo had investments in Hungary which were impacted when Hungary introduced tax reforms in 2010. Unhappy with the tax changes, Sodexo commenced ICSID arbitration against Hungary in 2014 alleging the reforms unlawfully expropriated its investment. In January 2019, the ICSID tribunal issued a €72 million award in Sodexo's favour. Hungary's annulment bid failed in May 2021, finalising the award. Sodexo then sought recognition and enforcement of this ICSID award in the New Zealand High Court against Hungary. Hungary contested the court's jurisdiction. S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 [36] The New Zealand High Court held that by acceding to the ICSID Convention, states have agreed that ICSID awards can be recognised domestically as binding judgments, but they maintain immunity for subsequent execution processes. Recognition enables the domestic court to later apply immunity laws on execution. Cooke J stated: “[25] The meaning of these articles appears clear. Their terms overtly apply to enforcement against state parties as well as investor parties to the awards. Sodexo is entitled to have the award recognised in New Zealand as if it were a judgment of the New Zealand Court in order that it may be enforced under New Zealand’s laws. The High Court of New Zealand is obliged to so recognise the award as if it were a judgment. But Hungary is able to claim state immunity under New Zealand law in relation to any execution processes. That immunity does not prevent the award from first being recognised, however. Hungary has agreed that the award may be so recognised, and has waived any adjudicative immunity it had in relation to recognition. It is only after recognition of the award in the New Zealand judicial system that New Zealand law can be applied to assess the claims to immunity in relation to execution steps. It is agreed that the New Zealand Court has jurisdiction to make such decisions. [26] I do not accept Hungary’s argument that enforcement and execution are synonymous and that the preservation of state immunity in art 55 concerning execution contemplates immunity from all the steps contemplated in art 54, including recognition. Enforcement is a more general term. The concepts of recognition in art 54(1), and execution in arts 54(3) and 55, are the more technical and precise concepts. To enforce an award one needs to take these more technical steps. First the award is recognised and then execution steps may be taken. The immunity applicable to execution is not an immunity from the prior step involved in having the award recognised in domestic law. Indeed, it is only possible to apply the domestic laws on immunity from execution if the S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 domestic courts first have jurisdiction. So, for this reason art 55 does not make Hungary immune from the jurisdiction. Recognition of the award is necessary in order to allow such domestic law to be applied. The protest to jurisdiction needs to be set aside on that basis.” [37] I respectfully adopt this interpretation. [38] The Plaintiffs seek for the reliefs in this Originating Summons and OS 322 premised upon the ICSID Act and the ICSID Convention, which provide for recognition and enforcement of ICSID awards in the same manner as a Court judgment. [39] The ICSID Convention has different terms for the recognition and execution of Tribunal awards. Article 54 of the ICSID Convention requires each Contracting State to recognise Tribunal awards, while Article 55 states that this recognition does not affect the law in force relating to the immunity of the state from execution. Therefore, according to the ICSID Convention, the consideration of sovereign immunity is limited to the execution stage after the recognition of Tribunal awards as final judgments of the relevant Contracting State. [40] The words employed in Articles 54 and Article 55 of the ICSID Convention are clear and this Court will give them their natural and ordinary meaning without departing from their plain meaning as there are no clear reasons for doing so. See Tebin bin Mostapa (as administrator of the estate of S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 Hj Mostapa bin Asan, deceased) v Hulba- Danyal bin Balia & Anor (as joint administrators of the estate of Balia bin Munir, deceased) [2020] 4 MLJ 721 (Federal Court). [41] The Court accepts the view stated by the learned authors Christoph H. Schreuer, Loretta Malintoppi, August Reinisch, and Anthony Sinclair of The ICSID Convention: A Commentary who commented on Article 54(3) of the ICSID Convention. They observe that state immunity cannot be used to prevent the recognition of an ICSID award, and state immunity only applies when concrete measures of execution are taken to enforce the award's pecuniary obligations. It was observed: “Under Art. 54(3) only execution but not recognition is governed by the law of the forum State. Art. 55, by its own terms, refers to execution but not to recognition. Therefore, State immunity cannot be used to thwart proceedings for the recognition of an award. In addition, State immunity does not affect the res judicata effect of an award once it has been recognized (see Art. 54, paras. 43-46). State immunity only comes into play when concrete measures of execution are taken to enforce the award’s pecuniary obligations typically after recognition has been granted.” (emphasis added) [42] Therefore, when acceding to the ICSID framework under this Convention, the Defendant agreed to recognition of ICSID Awards and annulment decisions by domestic courts in all Contracting States, including Malaysia. However, at S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 the execution phase, the Defendant can still invoke state immunity under local laws. [43] I am fortified in this view by the reasoning of the Australian Federal Court in Kingdom of Spain v Infrastructure Services Luxembourg SARL [2021] FCAFC 3. In this case, the respondents invested EUR139.5 million into solar energy projects in Spain under a subsidy scheme. Spain withdrew the subsidies in 2010. The respondents filed an ICSID claim alleging this breached the Energy Charter Treaty. In June 2018, the ICSID tribunal awarded the respondents EUR101 million plus interest. The respondents then sought recognition and enforcement of this award in the Australian Federal Court against Spain. Spain pleaded state immunity. This appeal arose from the primary judge's decision to reject that immunity claim and assume jurisdiction. [44] Allsop CJ emphasised the “unequivocal” obligation under Article 54 to recognise ICSID awards, unaffected by Article 55 immunity from execution. He held that proceedings to recognise an award give it equal status to a domestic court judgment as a preliminary measure before any execution. This remains an act of recognition unprotected by immunity. It was observed: “3 Recognition and enforcement of an arbitral award are distinct, but related concepts. The linguistic debate as to whether execution is synonymous with enforcement or is a concept within it need not, it seems to me, be debated or resolved as a question of fixed content, for all S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 purposes. We are dealing here with Arts 54 and 55 of the ICSID Convention. …. 6 The obligation to recognise an award under article 54 was unequivocal and unaffected by questions of immunity from execution. As the reasons of Perram J and as the discussion of Professor Schreuer (op cit pp 1128-1134) both show, sovereign immunity from execution (Arts 54(3) and 55) does not arise at the point of recognition.” [45] Accordingly, the Defendant cannot claim immunity to resist or prevent recognition of the Award and Decision by this Court. Considerations of immunity are premature at this juncture and can only be pursued if and when execution is attempted. The Plaintiffs have only applied for recognition under the ICSID framework thus far. [46] Further, I find that the Defendant has already submitted to the jurisdiction of Malaysian courts for recognition purposes and simultaneously waived any claim to immunity in that regard. [47] In its own “Reply on the Stay of Enforcement of Awards” which was filed on 1.7.2016 for the purposes of the stay proceedings before the ad hoc Committee prior to the Decision on Annulment, the Defendant stated that the Plaintffs had the right to enforce the Award in any ICSID Contracting State which the Defendant promised to comply with if it remained intact after annulment proceedings. This clearly displays the Defendant's submission to domestic S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 court jurisdiction and waiver of immunity for recognition and potential enforcement measures in foreign Contracting States. [48] By ratifying the ICSID Convention and making such representations, the Defendant has acquiesced to Contracting States including Malaysia recognising the Award and the Decision on Annulment as a binding domestic court judgment pursuant to Article 54 without claiming immunity. [49] Further, the Defendant contends that the Land Reforms underlying the Tribunal's Award were governmental acts forming part of its sovereign functions. It claims immunity on that basis since common law only allows suits against foreign states for private and commercial acts, citing the rule in Rahimtoola v H.E.H. The Nizam of Hyderabad [1958] AC 379 (House of Lords) and applied in Hii Yii Ann v Deputy Commissioner of Taxation of the Commonwealth of Australia & Ors [2018] 7 MLJ (High Court). Specifically, the Defendant submitted that the Court has no jurisdiction over it as the Land Reforms implemented by the Defendant in Zimbabwe giving rise to alleged breaches of the German BIT and the Swiss BIT and forming the core of the dispute between the Plaintiffs and the Defendant were actions of a governmental or sovereign nature, whereas the Court only has jurisdiction over actions of a commercial or private nature of a foreign sovereign state. S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 [50] With respect, this argument fails to apprehend that the ICSID Convention represents an international agreement modifying common law immunity. In any case, the Tribunal has already determined in the Award and the Decision on Annulment that it has jurisdiction over the Defendant's acts leading to the dispute, which awards are now final and binding. As a signatory to the ICSID Convention, the Defendant is precluded from reopening the question of the Tribunal's jurisdiction or the character of the Land Reforms underlying the dispute. The Award is now res judicata as between the parties. By virtue of Articles 53(1) and 54(1) of the ICSID Convention, the Award and the Decision on Annulment are binding on the Contracting States to the ICSID Convention, including the Defendant. As such, the Defendant is obliged to recognise the Award and the Decision on Annulment in accordance with its obligations under Article 54 of the Convention, as implemented in Malaysia via the ISCID Act. The Defendant cannot resist recognition or enforcement of the Award and the Decision on Annulment on grounds pertaining to jurisdiction, nor sustain any reference to the impugned Land Reforms and their implementation as acts of a sovereign and governmental nature at this stage. [51] I also dismiss as premature the Defendant's contention regarding immunity for its diplomatic assets in Malaysia and the lack of identified local assets for enforcement. Here, the Defendant argues that since it only has diplomatic assets in Malaysia which are immune from execution, and the S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 Plaintiffs have not identified any commercial assets for enforcement, the Court lacks jurisdiction. These considerations may apply at the execution stage later on but are presently inapplicable. The Plaintiffs have not attempted execution thus far. At this point, only recognition is sought pursuant to Malaysia's commitments under the international ICSID mechanism. [52] In light of the foregoing analysis, I dismiss in entirety the Defendant's invocation of sovereign immunity as it clearly falls within the agreed mechanism for recognition under the ICSID Convention implemented in Malaysian law through the ISCID Act. Contracting States understandably maintain immunity at the execution phase later, but no immunity applies against proceedings simply seeking recognition of ICSID Awards and annulment decisions. That is the operative scheme adopted by state parties. The Originating Summonses merely seek such recognition. Accordingly, the Defendant's claim for sovereign immunity at this stage fails. Lack of procedural framework [53] The Defendant submitted that the Court has no jurisdiction over the Defendant, a foreign sovereign state, given that there is no procedural framework legislated by Parliament for the enforcement of ICSID awards. Section 3 of the ICSID Act only states that ICSID awards can be enforced in the same way as a Court order, without any specific procedural mechanism. S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 [54] The contrast between the treatment of arbitration awards and foreign judgments is highlighted by the Defendant in relation to the procedural frameworks provided by the Arbitration Act 2005 (“AA 2005”), the Arbitration Act 1952 (“AA 1952”), and the Reciprocal Enforcement of Judgments Act 1958 (“REJA 1958”). Order 69 of the ROC 2012 only applies to proceedings governed by AA 2005 and the repealed AA 1952 and does not give the Court the powers to enforce awards under the ICSID Act. [55] The Defendant also contrasted the position in Malaysia with that of other jurisdictions such as the United Kingdom and Singapore where specific laws and rules have been enacted to govern the registration and enforcement of ICSID awards. In the UK, ICSID arbitration awards are governed by the Arbitration (International Investment Disputes) Act 1966 and the Civil Procedural Rules 1998 whereas in Singapore this is governed by the Arbitration (International Investment Disputes) Act 1968 and the Arbitration (International Investment Disputes) Rules 2002 Chapter 11, Section 6. [56] The Defendant also argued that under Malaysian law, the courts are only empowered to interpret laws passed by Parliament and cannot use their inherent power to address gaps in the law. The responsibility to legislate and remedy any gaps in the law lies with Parliament. In support, the Defendant cited Peh Chin Ping v Gan Ho Soon [2021] S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 MLJU 2001 (High Court), NKM Holdings Sdn Bhd v Pan Malaysia Wood Bhd [1987] 1 MLJ 39 (Supreme Court) and Sia Cheng Soon & Anor v Tengku Ismail bin Tengku Ibrahim [2008] 3 MLJ 753 (Federal Court) [57] I find the Defendant's submissions to be unpersuasive upon careful evaluation. [58] The lack of a procedural framework in the ICSID Act does not preclude this Court’s substantive jurisdiction to allow the Originating Summonses seeking recognition of the Award and the Decision on Annulment. [59] As the authorities cited demonstrate, procedure is but the handmaid of justice. The absence of prescribed procedures does not fetter the Court where jurisdiction has been substantively conferred. This Court remains imbued with powers intrinsic and inherent to it, as a superior court of law, to adapt existing procedures to the extent required in service of the ends of justice. Indeed, the Privy Council in Board v Board [1919] A.C. 956 (on appeal from Alberta, Canada) held that “If the right exists, the presumption is that there is a Court which can enforce it, for if no other mode of enforcing it is prescribed, that alone is sufficient to give jurisdiction to the King’s Courts of justice.” Similarly, in Re King & Co.’s Trade Mark [1892] 40 W.R. 580, the English Court of Appeal held that “The jurisdiction of the Court is, to my mind, incontestable. The procedure is nowhere fixed. Any procedure which comes up to an Englishman’s S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 standard of justice is enough to satisfy this Act.” Other authorities of note include the Australian case R v Rawson, exparte Moore [1976] Qd R 138, which held that a statute conferring substantive jurisdiction impliedly empowers procedural adaptability; the New Zealand Court of Appeal case of New Zealand Baking Trades Employees Industrial Union of Workers v General Foods Corporation (NZ) Ltd BC8560136 which held that substantive jurisdiction can be exercised using flexible procedures as needed; and the case of Rashidah Bte Mohammad v Mayban Finance Bhd [2003] 5 MLJ 529 which held that statutory powers remain operative pending formalisation of rules. [60] Applying these cardinal principles, I find that Section 3 of the ICSID Act substantively empowers this Court, as the designated competent court, to recognise ICSID awards as “binding and enforceable in the same manner as if it is a decree, judgment or order of the Court.” It bears restating that Section 3 remains fully operative notwithstanding the lack of attendant or ancillary procedural rules. This Court by implication can formulate the appropriate procedures for exercising the jurisdiction substantively granted by Parliament. As the Supreme Court stressed in NKM Holdings “The duty of the Court, and its only duty is to expound the language of the Act in accordance with the settled rules of construction.” Here, the language of Section 3 is clear – this High Court can recognise ICSID awards. That substantive power and duty abides irrespective of absent procedures. S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 [61] Contrary to the Defendant’s contention, I do not find that Parliament deliberately omitted attendant procedures by confining such regimes only to analogous legislation like the AA 2005 and REJA whilst enacting the ICSID Act bereft of the same. As the Court of Appeal stated clearly in Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor [1995] 1 MLJ 719, Parliament must always be assumed cognisant of existing law when legislating on any subject. Accordingly, when substantively empowering recognition of ICSID awards under Section 3, Parliament is legally presumed cognisant that substantive jurisdiction carries the inherent capacity for Courts to adapt and adopt requisite procedures to fulfil the judicial role. This presumption holds special significance in respect of international treaties like the ICSID Convention which compel domestic incorporation and compliance. Parliament understands Courts will act purposively to achieve substantive justice utilising inherent powers where needed. [62] The argument that absent legislated procedures, judicial innovation transgresses the principle of separation of powers must therefore fail. Courts act legitimately not only within domains demarcated by legislative words but also deploying powers intrinsic to delivery of justice when discharging constitutional roles, for substance must always prevail and direct the judicial function. As jurisprudence from various Commonwealth jurisdictions demonstrates, courts routinely adapt their processes to substantively S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 exercise unfamiliar jurisdictions like the ICSID Act. Indeed, in Freeman, the Supreme Court of Canada confirmed that whilst territorial jurisdiction is generally circumscribed, legislative authority creating the Court can expressly confer extra-territorial jurisdiction to be substantively exercised utilising the Court’s incidental powers necessary to fulfil that jurisdiction. Similarly, in Surinder Singh v Central Government & Ors 1986 AIR SC 2166, the Indian Supreme Court held that powers statutorily granted expressly and unconditionally remain fully operational pending formalisation of rules, thereby underscoring that substantive capacities imply interim procedural dispensations. [63] On that basis, anchoring this Originating Summons and OS 322 on Section 3 of the ICSID Act which substantively empowers recognition of ICSID awards, I find that this Court is legally and fully equipped to grant the recognition and declarations presently sought without requiring any antecedent procedural rules or regimes provided under the law. As the Court of Appeal made clear in Stone World Sdn Bhd v Engareh (M) Sdn Bhd [2020] 2 MLJ 208, these inherent powers must always be judiciously exercised to remedy injustice, give effect to substantive legislation and prevent abuse of legal process whilst remaining guided by considerations of proportionality and good faith. [64] Furthermore, at this juncture, considerations regarding immunity from execution measures do not arise to limit the exercise of jurisdiction as matters of execution are separate S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 and subsequent to mandatory recognition under the treaty. The Plaintiffs presently only seek recognition on the basis of Malaysia’s treaty obligations under Articles 53(1) and 54(1) of the ICSID Convention. Questions of state immunity from execution that the Defendant may potentially invoke later are premature and inapplicable during this initial recognition stage. [65] As the recent New Zealand High Court case of Sodexo confirms, even absent a bespoke procedural regime, Courts readily adapt ordinary procedures to fulfil mandatory substantive obligations consistently with powers and functions statutorily provided, like Section 3 of the ICSID Act. There, despite lacking any specific statute or process for registering ICSID awards against foreign states, the Court effectively extended its existing personal service dispensations to achieve valid service on Hungary in the originating process for recognising the award. [66] Specifically, the High Court in Sodexo recognised New Zealand's obligations under the ICSID Convention to enforce arbitration awards, as implemented domestically through the ICSID Act. Although the Act does not contain detailed procedures for enforcement against foreign states, the Court adapted its own procedural rules on personal service to permit Sodexo to serve its application on Hungary and assert jurisdiction. This allowed the Court to fulfill New Zealand's substantive ICSID obligations by first recognising the award, while preserving Hungary's ability to claim S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 36 immunity regarding later execution. The Court also emphasised that procedural rules should be interpreted to facilitate ICSID enforcement consistent with New Zealand's international commitments. [67] For the foregoing reasons, I find that the lack of attentive procedures and rules in the ICSID Act provides no impediment whatsoever to granting the substantive prayers for recognition and declarations allowed through this Originating Summons and OS 322. Justice inheres in substantive rights which demand remedies. Courts as foremost custodians of justice are imbued with innate capacities to deliver substantive justice utilising flexible adoption of existing procedures even where bespoke regimes are legislatively absent when particular jurisdictions emerge. At all times, procedural modes remain subservient to substantive dictates of law and justice. Enforcement limited under Swiss and German BITs [68] The Defendant submitted that these present proceedings should be stayed, given that the applicable BITs under which the Award and the Decision on Annulment were made expressly limit enforcement to only Germany, Switzerland, and/or Zimbabwe i.e. within the jurisdiction of the contracting states to the BITs. The Defendant prays that the Court should stay the present proceedings, as Malaysia is not the proper forum for the claims and/or relief sought by the Plaintiffs. S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 37 [69] The provisions of the BITs stating that the arbitral award should be enforced according to the domestic laws of the Contracting Party where the investment is located are: a) Article 11(3) of the German BIT which states: “The award shall be binding on the parties and shall not be subject to any appeal or remedy other than that provided for in the said Convention. The award shall be enforced in accordance with the domestic law of the Contracting Party in the territory of which the investment in question is situated.” b) Article 10(6) of the Swiss BIT which states: “...The arbitral award shall be final and binding for the parties involved in the dispute and shall be enforceable in accordance with the laws of the Contracting Party in which the investment in question is located.” [70] I have closely considered the parties' submissions, evidence and authorities on whether the applicable bilateral investment treaties (BITs) limit enforcement of the ICSID award to Zimbabwe. I do not think they do. [71] The Defendant heavily relies on Article 11(3) of the German BIT and Article 10(6) of the Swiss BIT to argue that recognition and enforcement of the award is limited to the state where the underlying investment lies. However, its S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 38 interpretation does not properly account for the full text and context. [72] When read in entirety, neither article expressly states that enforcement can only occur within the host state's domestic legal system or courts. Article 11(3) of the German BIT and Article 10(6) of the Swiss BIT do not state that an investor can only enforce an arbitration award in Zimbabwe. There is nothing in these provisions to derogate from the waiver of sovereign immunity that exists due to the Defendant's agreement in the BITs to arbitrate disputes at ICSID and the terms of Article 54(1) of the ICSID Convention. [73] Certainly, the language in the Articles requires applying local laws if enforcement takes place where the investment lies. But it does not clearly prohibit or exclude enforcement in other Contracting States to the ICSID Convention like Malaysia. [74] The subsequent sentence of Article 11(3) merely states that if the Award and the Decision on Annulment are to be enforced in Zimbabwe, it shall be enforced in accordance with domestic laws of Zimbabwe but does not prevent the enforcement of the award outside of Zimbabwe. [75] Article 11(3) of the German BIT provides that the remedy available is as provided in the ICSID Convention. The subsequent sentence that the award shall be enforced in accordance with the domestic law of the Contracting State S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 39 in the territory of which the investment is situated does not mean that the investor can only enforce an arbitration award in Zimbabwe. The purpose of investment treaties is to promote foreign investment, and the recognition and enforcement mechanism under the ICSID Convention is a core feature. If the award could only be enforced in the respondent state, this would nullify the purpose of investment treaties. There is no language in the article that prohibits the enforcement of the award outside of the respondent state. [76] In Article 10(6) of the Swiss BIT, there is no restriction at all in this Article that limits the enforcement of the Award and the Decision on Annulment in Zimbabwe alone. Instead, there is a recognition that they are enforceable in Zimbabwe in accordance with its domestic laws. [77] The absence of any reservation made by the Defendant to restrict the terms of the ICSID Convention is significant, as it means that the Convention can be enforced in any ICSID Contracting State. This is reinforced by Article 70 of the Convention, which specifies that the Convention applies to all territories for which a Contracting State is responsible, unless they have excluded them. Article 70 provides: “This Convention shall apply to all territories for whose international relations a Contracting State is responsible, except those which are excluded by such State by written notice to the depositary of this Convention either at the time of ratification, acceptance or approval or subsequently.” S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 40 [78] The Defendant referred the Court to the Court of Appeal case of World Triathlon Corporation v SRS Sports Centre Sdn Bhd [2019] 4 MLJ 394 for the proposition that Malaysian courts are required to enforce an agreed jurisdiction clause, and a stay should be granted unless the challenging party can demonstrate exceptional circumstances justifying a refusal. In this case, an American company owning IRONMAN Triathlon trademarks appealed against a Malaysian High Court decision, which dismissed its application to stay proceedings initiated by a Malaysian licensee for unlawful termination of their agreement, citing the agreement's Florida-exclusive jurisdiction clause as overridden by the convenience and economy of having witnesses and evidence in Malaysia. However, this case is not applicable as it dealt with agreements with “exclusive jurisdiction clauses” while there is no such clause in this case. Instead, the ICSID Act enforces the ICSID Convention which provides for the recognition and enforcement of pecuniary obligations imposed by an ICSID award as if it were a final judgment of a Court arising from treaty obligations of nations under the ICSID Convention. [79] In any event, the interpretation that the BITs expressly limit enforcement of the awards to only Germany, Switzerland, and/or Zimbabwe is not consistent with the Most Favoured Nation (“MFN”) clauses present in the agreements as the effect of this interpretation would be the investments and activities of nationals of Germany and Switzerland will be treated less favourably than investments and activities of S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 41 third states. The MFN clauses are Articles 3 and 8 of the German BIT and Articles 4 and 8 of the Swiss BIT. [80] Article 3 of the German BIT establishes that each contracting party shall treat investments and activities of nationals or companies of the other party no less favourably than investments and activities of its own nationals or companies, or those of any third state. It states: “(1) Neither Contracting Party shall in its territory subject investments owned or controlled by nationals or companies of the other Contracting Party to treatment less favourable than that which it accords to investments of its own nationals or companies or to investments of nationals or companies of any third State. (2) Neither Contracting Party shall in its territory subject nationals or companies of the other Contracting Party, as regards their activities in connection with their investments, to treatment less favourable than that which it accords to its own nationals or companies or to nationals or companies of any third State. (3) The treatment granted under this Article shall not relate to the benefit of any treatment, preference or privilege which either Contracting Party accords to nationals or companies of third States on account of its membership of, or association with, a customs, monetary, or economic union or a common market or free trade area. (4) The treatment granted under this Article shall not relate to any benefit which either National Treatment and Most Favoured Nation Treatment Contracting Party accords to nationals or companies of third States by virtue of a double taxation agreement or any other agreement regarding matters of taxation.” S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 42 [81] Article 8 of the German BIT provides that if there are existing laws or international obligations that provide more favourable treatment to investments by nationals or companies of one Contracting Party than what is provided by the current agreement, then that more favourable treatment will prevail. It states: “(1) If the laws of either Contracting Party or obligations under international law existing at present or established hereafter between the Contracting Parties in addition to this Agreement contain a provision, whether general or specific, entitling investments by nationals or companies of the other Contracting Party to a treatment more favourable than is provided for by this Agreement, such provision shall to the extent that it is more favourable prevail over this Agreement. (2) Each Contracting Party shall observe any other obligation it has assumed with regard to investments in its territory by nationals or companies of the other Contracting Party.” [82] Article 4 of the Swiss BIT states that the Contracting Parties must accord treatment to investors of the other Contracting Party that is not less favourable than the treatment it accords to its own investors or to investors of any third State. It states: “Investments and returns of investors of each Contracting Party shall at all times be accorded fair and equitable treatment and shall enjoy full protection and security in the territory of the other Contracting Party. Neither Contracting Party shall in any way impair by unreasonable or discriminatory measures the management, maintenance, use, enjoyment, extension or disposal of investments in its territory of investors of the other Contracting Party. S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 43 Each Contracting Party shall in its territory accord investments or returns of investors of the other Contracting Party treatment not less favourable than that which it accords to investments or returns of its own investors or to investments or returns of investors of any third State, whichever is more favourable to the investor concerned. Each Contracting Party shall in its territory accord investors of the other Contracting Party treatment not less favourable than that which it accords to its own investors or to investors of any third State, whichever is more favourable to the investor concerned. If a Contracting Party accords special advantages to investors of any third State by virtue of an agreement establishing a free trade area, a customs union, a common market or a similar regional organisation or by virtue of an agreement on the avoidance of double taxation, it shall not be obliged to accord such advantages to investors of the other Contracting Party.” [83] Article 8 of the Swiss BIT provides that if there are provisions in the laws of either Contracting Party or in international agreements that entitle investments by investors of the other Contracting Party to more favourable treatment than that provided in this agreement, such provisions will prevail over this agreement. It states: “(1) If provisions in the laws of either Contracting Party or in international agreements entitle investments by investors of the other Contracting Party to treatment more favourable than is provided for by this Agreement, such provisions shall to the extent that they are more favourable prevail over this Agreement. (2) each Contracting Party shall observe any other obligation it has assumed with regard to investments in its territory by investors of the other Contracting Party.” S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 44 [84] The BIT between the Netherlands and the Defendant does not contain the equivalent of Article 11(3) of the German BIT or the equivalent of Article 10(6) of the Swiss BIT. Through the German and Swiss BITs MFN Clauses, the Defendant made commitments to extend better rights to investors from other countries to Swiss and German investors. As there is no restriction in the Dutch BIT that enforcement of the awards is limited to only Netherland and/or Zimbabwe, the Plaintiffs, who are Swiss and German investors, should not be subject to the restrictions in Article 11(3) of the German BIT and Article 10(6) of the Swiss BIT as interpreted by the Defendant. [85] The arbitration case of Emilio Agustín Maffezini v The Kingdom of Spain (ICSID Case No. ARB/97/7) dealt with this issue. In this case, Argentine investor Emilio Agustín Maffezini contested against Spain over investments in a chemical company, invoking the MFN clause of the Argentina-Spain BIT to access favourable dispute settlement terms from the Chile-Spain BIT. The Argentine- Spanish BIT, provides that foreign investors must receive treatment no less favourable than that accorded to investors of a third country. The Chile-Spain BIT allows investors to opt for arbitration without first seeking redress in domestic courts. The tribunal concluded that the MFN clause in the Argentine-Spanish BIT encompasses the dispute settlement provisions of the treaty, allowing the investor to submit the dispute to arbitration without first accessing the Spanish courts, in reliance on the more favourable arrangements S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 45 contained in the Chile-Spain BIT and the legal policy adopted by Spain regarding the treatment of its own investors abroad. [86] I am of the view that this approach is correct and adopt the same by holding that the Swiss and German BITs MFN clauses is applied to extend provisions of the Dutch BIT to the protection of Plaintiffs’ rights and interests as the beneficiary of the MFN clauses. In this instance the Dutch BIT relates to the same subject matter as the Swiss and German BITs. I also do not see that there is any contravention of public policy considerations in adopting this approach. Absence of Defendant’s assets in Malaysia [87] The Defendant’s position is that the Plaintiffs cannot enforce the Award and the Decision on Annulment in Malaysia against the Defendant’s assets when the Plaintiffs have failed to show assets or properties of the Defendant that they can enforce in Malaysia when applying for the recognition and enforcement of the Award and the Decision on Annulment as judgments of the High Court. The Defendant argued that the Plaintiffs' action is speculative since the Plaintiffs failed to do any prior analysis or investigation to disclose sufficient facts to enable the Court to properly assess jurisdiction and merely relied on media reports alleging that the deceased former President of S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 46 Zimbabwe and/or members of his family have assets in Malaysia, which should be disregarded. [88] The Defendant's claim concerning the absence of its assets in Malaysia, or the Plaintiffs' supposed failure to demonstrate the presence of the Defendant's assets in Malaysia, does not bear relevance to the Plaintiffs' entitlement to seek the recognition of the Award and the Decision on Annulment, along with related reliefs, as outlined in the Originating Summonses. The pursuit of this relief aligns with the provisions of the ICSID Act and Malaysia's responsibilities as a Contracting State under the ICSID Convention. [89] The New Zealand High Court in Sodexo acknowledged that ordinarily it would be unjust for a court to recognise an award against a non-resident respondent without evidence that there was “a real prospect of obtaining a legitimate benefit from the English proceeding.” As the Court cited from Tassaruf Mevduati Sigorta Fonu v Demirel [2007] EWCA Civ 799, [2007] 1 WLR 508, this generally requires the applicant to “ordinarily show [...] that he can reasonably expect the benefit from such a judgment”. Such benefit typically entails demonstrating assets within the jurisdiction against which the award could be enforced. S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 47 [90] However, the Court found that New Zealand's treaty obligations under the ICSID Convention as implemented locally by the ICSID Act overrode such evidentiary requirements at the recognition phase. Regardless of proven assets, Article 54(1) mandates that “Each Contracting State shall recognise an award rendered pursuant to this Convention as binding.” The New Zealand legislation designates the High Court as the “competent court” to fulfill this mandate. [91] The Court reasoned that imposing an asset tracing requirement risks prejudice to the applicant's subsequent attempts to locate and execute against assets, noting “Steps could be taken in an attempt to avoid such execution.” Identification of available assets could thus occur later, when enforcement measures are pursued following recognition. At the recognition phase, the mere “possibility of enforcement” coupled with New Zealand's international commitments provided sufficient basis to recognise the award in line with ICSID framework. [92] Therefore Sodexo v Hungary confirms that notwithstanding inability to prove local assets of a foreign state, recognition of an ICSID award remains proper at minimum to uphold treaty obligations of the recognising state under the expressly mandatory terms of the ICSID Convention. This fulfills the recognising state's commitments as a matter of international law, whereas difficulties with proving S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 48 executable assets can be addressed subsequently under domestic procedures if and when execution is pursued. [93] I am persuaded by and adopt the reasoning in Sodexo v Hungary. Compliance incentives still arise from recognising awards even absent immediately executable assets under the ICSID framework. And the domestic court is bound to recognise awards under Article 54(1) of the Convention, given force of law locally by legislation like Malaysia’s ICSID Act. Asset identification imperils that scheme. Hence not knowing local asset specifics does not bar recognition here. That properly occurs subsequently when execution is attempted. [94] Premature focus on assets also ignores that the place of enforcement can wait if needed until funds materialise. As stated in Schreuer's noted Convention commentary, “Recognition as a preliminary step to execution may be meaningful even if there are no immediate prospects of execution...Once recognised, execution will be quicker and easier should assets become available later.” Recognition puts uncooperative parties on notice, driving disputes towards resolution. [95] In conclusion, the absence of identified seizable Malaysian assets presently does not prevent recognising or enforcing these international arbitral determinations as treaty obligations require. The Defendant's non-compliance to date makes prejudicing later execution attempts S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 49 improvident. Following Sodexo v Hungary, and respecting the ICSID Convention’s purpose, the Court continues proper recognition processes at this phase without further asset proofs. Double Recovery [96] The position of the Defendant primarily revolves around the issue of double recovery in the context of the Von Pezolds Arbitration and Border Arbitration. The Defendant asserts that allowing the Plaintiffs' claims in both arbitrations would result in impermissible double recovery, as noted by the Arbitral Tribunal. This stems from the fact that both the Von Pezolds and Border Companies have been granted similar relief for losses related to the Border Estate in their respective arbitrations. Consequently, enforcing these rights jointly against the Defendant would contravene the Tribunal's directive and established principles of justice and public policy. [97] Furthermore, the Defendant points out that the Plaintiffs have significantly disposed of their interests in the Border Companies before the filing of the annulment application. This disposal, particularly the transfer of the entire 86.49% shareholding in the Border Companies to third parties, effectively strips the Plaintiffs of their shareholder rights to enforce the ICSID awards against the Defendant. In lieu of direct compensation, the Plaintiffs received B Warrants and a nominal sum, which the Defendant argues should be S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 50 considered adequate compensation. The exact economic value of the B Warrants is deemed irrelevant, with the Defendant emphasising that the Court's focus should not be on the adequacy of compensation but rather its existence. [98] Additionally, the Defendant contends that the Plaintiffs have benefited from continued operations and profits from the Estates since the alleged expropriation. This factor should be considered to prevent the Plaintiffs from receiving a financial windfall if their applications to enforce the Award and the Decision on Annulment are granted. Lastly, the Defendant invokes the principle that any monetary judgment must strictly correspond to the actual amount due, taking into account any prior compensations or payments received, to avoid excessive or unjust enrichment of the Plaintiffs. [99] In essence, the Defendant’s position hinges on the principles against double recovery, the adequacy of the compensations already provided to the Plaintiffs, and the need to limit claims to prevent unjust enrichment. [100] I have considered the evidence and submissions from the Plaintiffs and the Defendant and it is my finding that there is no merit to the Defendant’s submissions. I will explain my reasons. S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 51 [101] There were two separates but related ICSID arbitration proceedings against the Defendant: (i) the arbitration proceedings leading to the Award and the Decision on Annulment in Case No. ARB/10/15 brought by the Von Pezold family already defined as “the Von Pezolds Arbitration”; and (ii) Case No. ARB/10/25 brought by companies the Von Pezolds control regarding the Border Estate, already defined as “the Border Arbitration”. [102] Although the two cases were heard jointly by the same tribunal for efficiency, they remained separate proceedings that resulted in separate awards. However, both sets of claimants were granted the same relief concerning harms to the Border Estate in their respective awards. Paragraph 938 of the Award states: “Although, formally, each tribunal has been constituted separately, and has adjudicated the Von Pezold Claimants' and Border Claimants' respective claims separately, it would be artificial to pretend that this Tribunal is unaware of its counterpart Award, or the consequences of it. The Tribunal therefore wishes to make clear that, although the Von Pezold Claimants and the Border Claimants have each been granted the same relief in respect of the Border Estate, these rights cannot both be jointly enforceable. To the extent that one set of Claimants (Von Pezold or Border) enforces its right to restitution of the expropriated Border Properties, restitution will, become legally and materially impossible for the other set of Claimants. Similarly, to the extent that the Border Claimants enforce their right to compensation in respect of the Border Properties (or, for that matter, the Border Liquidation Shortfall and Border Forex Losses), the right to compensation of that amount in the name of the Von Pezold Claimants will become unenforceable as an impermissible double recovery S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 52 (given that, ultimately, it is the Von Pezold Claimants who control the Border Claimants: see paras. 320-326 above) (see also Bayindir Insaat Turizm Ticaret Ve Sanayi AS v Islamic Republic of Pakistan, ICSID Case No. ARB/03/29, Decision on Jurisdiction, 14 November 2005, paras. 270-272). Such an outcome would, undoubtedly, be the case if the two sets of Claimants had brought proceedings consecutively rather than concurrently.” [103] Paragraph 938 of the Award in the Von Pezolds Arbitration recognises that the two claimant groups (the Plaintffs and the Border companies) cannot both fully enforce the duplicate relief granted for the Border Estate losses. If one group enforces restitution or compensation, that forecloses the same remedies being claimed by the other group. This mechanism prevents “double recovery” - getting paid twice for the same loss. [104] The Defendant now argues the Plaintffs are precluded from enforcing relief related to the Border Estate since the Award grants the same remedies to the Border companies in the Border Arbitration. Hence the contention that double recovery would result if the Plaintiffs receive compensation for Border Estate harms through enforcing the Award. [105] The Defendant argues that the Plaintiffs' efforts to enforce the Award and the Decision on Annulment constitute impermissible “double recovery”, allegedly violating paragraph 938 of the Award. This interpretation hinges on the belief that losses from the Border Estate cannot be jointly enforced by the claimants in both the Von Pezolds S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 53 Arbitration and Border Arbitration, which would result in double recovery. However, this argument is overly restrictive and overlooks the broader context of the Award, which does not explicitly prohibit such recognition proceedings. [106] The Tribunal held as follows in paragraphs 63 and 936 of the Award: “[63], Procedural Order No. 13 dated 23 December 2013 (“PO No. 13”), the Tribunal found that, while the matters in issue in the two proceedings were indeed intertwined, in that they arose from substantially the same events “from a practical perspective and as a matter of principle”, the Von Pezold Claiments and the Border Claimants, having filed their claims independently of each other, should also be able to pursue enforcement of any award independently of each other”; ………… “[936], One final word needs to be said about the Tribunal’s quantum findings. As noted at the outset of this Award, the present proceeding in fact comprises one part of a pair of arbitrations, heard together but with separate outcomes (see para. 5 above). There is significant overlap between these Awards, however, because both the Von Pezold Claimants in this proceeding and the Border Claimants in the other proceeding have made claims in respect of the same loss as concerns the Border Estate. Both the Von Pezold Claimants and Border Claimants have sought - and shall be awarded - the same rights to restitution and compensation, or compensation in the alternative, in respect of the losses relating to the Border Estate.” S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 54 [107] Therefore, double recovery is only a concern in two specific instances: (i) “restitution of the expropriated Border Estate has been obtained by one set of Claimants and the other set of Claimants pursues the same restitution remedy”; and (ii) “compensation is recovered in respect of the Border Estate by one set of the Claimants and the other set of the Claimants nevertheless seeks to pursue the same recovery and ignoring the compensation already recovered.” As of now, neither of these conditions has been met, as there has been no enforcement of restitution or compensation by either set of claimants. [108] Far from any claimant having “enforce[d] its right to restitution of the expropriated Border Properties”, the Defendant has denied the Plaintiffs precisely that. It has rendered itself a stranger to the Award, breaching the ICSID Convention requirement that “...Each party shall abide by and comply with the terms of the award...” (Art 53(1)). In these circumstances where no funds or assets have exchanged hands to recompense either claimant set, paragraph 938 by its own terms does not yet activate to bar either from continuing enforcement attempts. [109] The restructuring of the Plaintiffs’ interests in the Border Companies, as per the Framework Agreement dated 28.2.2012 (“the Framework Agreement”), is also crucial to this analysis. There was a divestment of the Plaintiffs' interests in the Border Companies arising from a restructuring of a joint venture that took place on 28.2.2012. S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 55 This restructuring involved the Høeghs and the Von Pezolds, resulting in a phased transfer of assets into the Joint Venture, with the holding company being Rift Valley Investments Limited (RVI). In this arrangement, the Von Pezolds, through Gusterheim Africa Holdings Limited (GAH), held a 55% stake, and the Høeghs, through HCP Africa Limited (HCPA), held the remaining 45%. [110] Under the Framework Agreement, GAH was to transfer the Plaintiffs’ entire 86.49% shareholding in the Border Companies into the Joint Venture. In return, GAH received a nominal consideration of US$1 and was issued 36,544,153 ‘RVC Warrants’ (B Warrants). These B Warrants were not immediate share capital but conferred rights to exchange each warrant for one share in Rift Valley Corporation Limited (RVC) upon the satisfaction of certain conditions related to the Von Pezold Arbitration concerning the Border Estate. [111] The Claimants’ JV Notification dated 4.9.2012 clarified that the nominal consideration of US$1 was a legal formality under English law to make the contract binding, as English law does not inquire into the adequacy of consideration. Therefore, it is common practice to use nominal consideration for binding contracts without executing them as a deed. S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 56 [112] Crucially, clause 12.11 of the Framework Agreement emphasised that the Von Pezolds retained “all rights of action and claims for reparation and rights to any reparation awarded (including restitution and compensation) in relation to the Von Pezold Arbitration and its subject matter.” This clause ensured that despite the restructuring, the Von Pezolds did not relinquish any rights to compensation due from the Defendant under the Award. [113] The divestment did not entail an assignment of any rights or claims subject to the Von Pezold Arbitration and the Border Companies Arbitration, as clearly notified to the Defendant in the Claimants’ JV Notification. The Høeghs and the Von Pezold Claimants agreed that all rights of action, claims for reparation, and rights to any reparation awarded in the Arbitrations would remain vested with the respective claimants, despite the joint venture. [114] Therefore, the divestment and the subsequent joint venture did not result in the Plaintiffs being disentitled to any claim in relation to the Border Companies. The Defendant had the opportunity to raise concerns about the impact of this divestment during the hearing of the Von Pezold Arbitration but chose not to, rendering it inappropriate to do so at a later stage. [115] On the Defendant’s argument that the Plaintiffs' continued operation of the Estates and the purported profits therefrom should be disclosed to prevent an alleged windfall if the S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 57 current application is granted, the Court finds that this argument, however, does not find a foothold in the procedural history or the legal principles governing this case. As per paragraph 159 of the Award, the Tribunal’s observation is that despite the ongoing operation of the Estates, the Plaintiffs have been effectively reduced to “mere licensees at the will of the Respondent” due to the alleged expropriation under the 2005 Constitutional Amendment. The viability of the remaining properties and assets is therefore compromised, impeding the Plaintiffs’ ability to realise value from these assets through sale. [116] The Defendant's attempt to introduce a set-off from the income derived by the Plaintiffs from the Estates appears to be an afterthought, not raised during the Tribunal proceedings. This omission is significant. Matters not brought before the Tribunal at the appropriate juncture cannot be introduced at a later stage, especially when they could have been raised during the arbitration process. The principle of finality in arbitration, as well as the need for procedural efficiency, underpin this stance. [117] Moreover, the Von Pezold Arbitration's Tribunal did not provide the Defendant with an option to compensate the Plaintiffs by allowing them to continue occupying the Estates post-award. The clear terms of paragraph 1020.3 of the Award stipulate that if restitution and restitution damages are not provided within 90 days as detailed, the Defendant is obligated to pay the specified damages. The S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 58 Award does not contemplate payment through alternative means, such as the set-off proposed by the Defendant. [118] The binding nature of the Award and the Decision on Annulment, as enshrined in Article 53(1) of the ICSID Convention, further solidifies the Plaintiffs' position. The Award, granting various reliefs to the Plaintffs in relation to the expropriation of the Border Estate, is final and binding on the parties. The Convention explicitly states that awards are not subject to appeal or any other remedy except those provided within the Convention itself. Compliance with their terms is not optional but a legal obligation of the parties. [119] In conclusion, the Defendant's argument for a set-off based on the profits from the continued operation of the Estates is neither procedurally nor substantively tenable. The Award's directives are clear and unambiguous, and the Defendant's obligations under the Award and the Decision on Annulment and the ICSID Convention are binding. Orders for Service Out of Jurisdiction [120] The Defendant submits that unlike the UK and Singapore, Malaysia lacks specific legislation governing the service of process on a foreign sovereign state. In the UK, this procedure is outlined in Section 12 of the UK State Immunity Act 1978, while Singapore's procedure is detailed in Section 14 of the Singapore State Immunity Act 1979. The Defendant argues that Order 11 rule 1 of the ROC S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 59 2012 in Malaysia, which the Plaintiffs relied upon for serving out of jurisdiction, is applicable only to service on a defendant located in a foreign state, not on a foreign state itself. This point is supported by the case of Embassy of Brazil v de Castro Cerqueira [2014] ICR 703, emphasising the purpose of the UK's legislation to ensure states receive notice of proceedings against them. [121] Furthermore, the Defendant refers to the commentary by Fox and Webb in a chapter titled “English Law: The UK State Immunity Act 1978 highlighting the importance of providing foreign states adequate notice and opportunity for diplomatic action. The Defendant contends that the absence of Malaysian legislation in this area means the Court cannot create or expand jurisdiction to serve a sovereign state. This argument is reinforced by the case of Josias Van Zyl and others v Kingdom of Lesotho [2017] SGHC 104, where the Singapore High Court emphasised the need for explicit parliamentary authorisation for such service, illustrating caution in exercising jurisdiction over sovereign states. The Defendant suggests that any gaps in Malaysian law regarding this matter should be addressed by Parliament. [122] I do not accept the Plaintiffs’ position. Other jurisdictions having specific legislation does not undermine the authority of the Court to grant the Orders for service out of Jurisdiction. S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 60 [123] First, the court addresses the Defendant's argument that the absence of Malaysian legislation similar to the UK's or Singapore's State Immunity Act 1979 prevents this Court from permitting service of process on a foreign state. The Plaintiffs’ Leave Application was predicated on Order 11 rule 1(1)(M) of the ROC 2012. It allows for leave to serve a claim out of jurisdiction if the claim is brought “to enforce” “any judgment or arbitral award”. It provides: “(1) Where the writ does not contain any claim for damage, loss of life or personal injury arising out of- (a) a collision between ships; (b) the carrying out of or omission to carry out a manoeuvre in the case of one or more of two or more ships; or (c) non-compliance on the part one or more of two or more ships, with the collision regulations made under section 252 of the Merchant Shipping Ordinance 1952, service of a notice of a writ out of the jurisdiction is permissible with the leave of the Court in the following cases: …………………… (M) if the claim is brought to enforce or set aside any judgment or arbitral award.” [124] The Plaintiffs submit that the Originating Summonses seek orders relating to the recognition of an ICSID award, which, under the ICSID Act, may be viewed as if it were a final judgment of a court in each Contracting State, including Malaysia. This interpretation is consistent with the understanding that the word “enforcement” encompasses S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 61 steps to have a judgment recognised and then subject to execution, as reflected in the New Zealand case of Sodexo v Hungary. [125] The New Zealand High Court's decision in Sodexo v Hungary provides a useful precedent regarding extraterritorial service to enforce an ICSID award. The High Court allowed service out of jurisdiction relying principally on Rule 6.27m of the New Zealand High Court Rules. As the Court explained, this rule generally permits service outside New Zealand “when it is sought to enforce any judgment or arbitral award.” [126] In reaching this conclusion, the High Court held that the ICSID Convention creates binding obligations on member states to recognise ICSID awards, finding that “Each Contracting State shall recognise an award...as binding and enforce the pecuniary obligations imposed by that award...as if it were a final judgment of a court in that State.” The Court ruled that New Zealand's ICSID Act “has the force of law in New Zealand in accordance with the provisions of the Act.” [127] Significantly, the New Zealand High Court endorsed a broad concept of “enforcement” encompassing both initial recognition of the award under the adjudicative jurisdiction of domestic courts as well as subsequent execution steps. As the Court reasoned, “Enforcement is a more general term. The concepts of recognition in art 54(1), and S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 62 execution in arts 54(3) and 55, are the more technical and precise concepts.” While execution may implicate foreign state immunity issues, the court found that Hungary had clearly waived adjudicative immunity under the ICSID Convention framework. Cooke J commented: “[48] I do not accept Hungary’s arguments. As I have found above the word “enforcement” has a more general meaning which encompasses steps to have the judgment recognised, and then subject to execution. That is the meaning also contemplated by s 4 of the ICSID Act. The award here is plainly an arbitral award falling within the terms of r 6.27(2)(m).” [128] The tiered enforcement process under Order 11 rule 1(1)(M) ROC 2012 allowing service out of jurisdiction to “enforce” foreign judgments or arbitral awards draws a similar distinction between initial adjudicative jurisdiction to recognise an award and subsequent execution proceedings. As with New Zealand's ICSID Act, Malaysian implementing legislation gives domestic effect to international enforcement obligations assumed through acceding to convention frameworks like ICSID. The Court can exercise its inherent jurisdiction to give effect to the Award and the Decision on Annulment and ensure that Malaysia fulfills its treaty obligations under the ICSID Convention. Therefore, it is possible to resort to to Order 11 rule 1(1)(M) ROC 2012 so as to permit service of the Originating Summonses and the Plaintiffs’ Affidavits in Support on the Defendant since what is at hand is originating process “to enforce or set aside a judgment or S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 63 an arbitral award”. In this regard, the Originating Summonses are claims that seek to enforce both a judgment and an arbitral award. The Award and the Decision on Annulment are awards given by the arbitrator under the ICSID Act and viewed as a final judgment in each Contracting State (including Malaysia). Order 11 rule 1(1)(M) of the ROC 2012 applies to the enforcement of a judgment as well as an arbitral award, and is not limited to enforcement under the Arbitration Act 2005. [129] Furthermore, the Federal Court of Malaysia in Joseph bin Paulus Lantip & Ors v Unilever Plc [2018] supp MLJ 151 provided guidance on the interpretation of Order 11 of the ROC 2012. The Court held that “the plaintiff need not satisfy the court that he is right. His burden is only to make it ‘sufficiently to appear ... that the case is a proper one for service out of the jurisdiction under this Order’.” This precedent supports the position that the Plaintiffs have established a 'good arguable case' for the purposes of obtaining the Orders for Service Out of Jurisdiction. [130] The Defendant's argument, as per Embassy of Brazil v de Castro Cerqueira, that the purpose of the UK's legislation is to ensure states receive notice of proceedings against them, is not disputed. However, this does not preclude the Court from exercising jurisdiction in the absence of similar Malaysian legislation. S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 64 [131] In sum, the Plaintiffs have satisfactorily established that the Orders for Service Out of Jurisdiction falls within the ambit of Order 11 rule 1(1)(M) of the ROC 2012. The absence of specific Malaysian legislation akin to the UK or Singapore's Acts does not restrict this Court’s discretionary power to grant such an order in cases involving the enforcement of an international arbitral award. Therefore, this Court upholds the Orders for Service Out of Jurisdiction, ensuring that the principles of international law and comity are respected, and Malaysia's obligations under international conventions are fulfilled. Failure to make full and frank disclosure [132] The Defendant argued that the order granting the leave should be set aside because the Plaintiffs have failed to make full and frank disclosure of relevant facts and documents by not producing the relevant German BIT and Swiss BIT with particular attention to Article 11(3) of the German BIT and Article 10(6) of the Swiss BIT. The Defendant also argued that even if they had disclosed the BITs, they were also obliged to explain their relevance and materiality to the High Court which they had failed to do. As a result, the High Court was not presented with all the relevant and material facts to decide whether it had jurisdiction to grant leave. S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 65 [133] The Defendant submitted that full and fair disclosure of all relevant and material facts is necessary in an ex parte application for service of a writ out of jurisdiction, and cited several authorities to support their position. The Defendant also highlighted that failure to disclose such information can lead to material non-disclosure of relevant facts and result in setting aside an ex parte order. The cases of Cantrans Services (1965) Ltd v Clifford [1974] 1 MLJ 141 (Federal Court) and Koperasi Permodalan Felda Malaysia Berhad v Alrawda Investment For Real Estate Development & Projects Management Co Ltd & Anor [2019] 7 MLJ 647 (High Court) were specifically referenced to illustrate these points. [134] The Defendant also submitted that the Plaintiffs have failed to make full and fair disclosure when it did not disclose or identify any assets and/or properties of the Defendant that are allegedly in Malaysia. In particular, the Plaintiffs failed to draw the attention of the Court that the only assets which the Plaintiffs were relying on, were rumours of no probative value about assets and/or properties which the deceased former President of Zimbabwe and/or members of his family are alleged to have acquired decades ago in Malaysia. [135] I do not accept the contentions of the Defendant above. In the Plaintiffs’ Application for Leave in Enclosure 6, the Plaintiffs have placed before the Court all the relevant and material facts. The Orders for Service out of Jurisdiction S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 66 were properly granted by the Court with due consideration of all material facts related to this matter. [136] In reaching a decision on this matter, the Court takes into consideration the Defendant's reference to Lee Teck Chee Anor v Merrill Lynch International Bank Ltd [1998] 4 CLJ 188. In this case, it was established that plaintiffs are required to present relevant and material facts explicitly to the High Court rather than make a general reference. This requirement ensures that the Court is fully informed and can decide based on comprehensive information. [137] Applying this principle to the current case, the Court finds that the Plaintiffs have indeed met their obligation of adequately informing the Court in their application to recognise the Award and Decision on Annulment under the ICSID Act. It was understood that the Defendant was a foreign state and the process of serving the Originating Summonses would be through the Defendant's officials in Zimbabwe. Therefore, the Plaintiffs provided all necessary material facts in their Application for Leave. [138] The Court also refers to the case of Cantrans Services 1965 Ltd v Clifford [supra], which underscores the importance of “full and fair” disclosure in ex-parte applications. Though the Plaintiffs’ Application for Leave did not explicitly demand “full and frank disclosure”, the Plaintiffs presented all relevant and material facts for the application. This approach aligns with the judgment in Koperasi Permodalan S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 67 Felda Malaysia Bhd v Alrawda Investment For Real Estate Development & Projects Management Co Ltd & Anor [2021] 7 MLJ 647. This case highlighted the critical importance for the Court to possess all relevant and material facts to decide whether to grant leave for serving the writ out of jurisdiction. [139] Regarding disclosure, I am satisfied based on the precedents cited that all material and relevant facts were duly placed before this Court. At the leave application stage, the Plaintiffs disclosed the certified copies of the Award and the Decision on Annulment as mandated under the ICSID Convention for recognition and enforcement proceedings. While the Defendant seeks to draw similarities with the decision in Koperasi Permodalan Felda Malaysia Bhd where failure to disclose an arbitration agreement resulted in leave being set aside, those facts are plainly distinguishable. Here, the arbitration proceedings have concluded and there is no dispute regarding the status and validity of the Award and the Decision on Annulment that the Plaintiffs now seek to have recognised pursuant to Malaysian legislation implementing the ICSID framework. [140] As such, the only facts that warrant disclosure relate to the Award and the Decision on Annulment themselves and the procedural history confirming its current enforceability, rather than any underlying arrangements between the parties. Those were comprehensively set out in the evidence accompanying the Plaintiffs' leave application. S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 68 [141] The Plaintiffs’ non-disclosure or failure to identify any assets of the Defendant in Malaysia is irrelevant to the Plaintiffs’ right to seek recognition of the Award and the Decision on Annulment and associated reliefs under the Originating Summonses. The enforcement of the Award and the Decision on Annulment aligns with Malaysia's obligations under the ICSID Convention, and that asset identification is not a prerequisite for award recognition. Therefore, this non- disclosure cannot be regarded as the Plaintiffs’ failure to make full and fair disclosure of material facts for the purposes of obtaining the Orders for Service Out of Jurisdiction. [142] Similarly, there is no failure by the Plaintiffs to make full and frank disclosure of relevant facts and documents in respect of the German BIT and Swiss BIT as the BITs do not limit enforcement to only Germany, Switzerland, and/or Zimbabwe. In gist, as addressed by the Court earlier, the award can be enforced in Malaysia, consistent with the MFN clauses in the BITs and the provisions of the ICSID Convention. Conclusion [143] For the above reason, the Plaintiffs’ Originating Summons in Enclosure 1 is allowed and the Defendant’s application in Enclosure 11 is dismissed. S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 69 [144] The Defendant is ordered to pay costs the Plaintiffs in the sum of RM60,000.00 with respect to Enclosure 1 and with respect to the dismissal of Enclosure 11 subject to allocator. 27 November 2023 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court NCC1 (Commercial Division) Counsel: For the Plaintiffs: John Mathew with Sabin Ann Thomas (Messrs. Christopher & Lee Ong) For the Defendant: Nitin Nadkarni with Soh Zhen Ning (Messrs. Lee Hishamuddin Allen & Gledhill) S/N 48KURpNyUK9Umzx0n4/w **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

WA-24NCC-322-07/2021

PEMOHON 1. ) ELISABETH REGINA MARIA GABRIELE VON PEZOLD 2. ) ANNA ELEONORE ELISABETH WEBBER (NEE VON PEZOLD) 3. ) HEINRICH BERND ALEXANDER JOSEF VON PEZOLD 4. ) MARIA JULIANE ANDREA CHRISTIANE KATHARINA BATTHYANY (NEE VON PEZOLD) 5. ) GEORG PHILIPP MARCEL JOHANN LUKAS VON PEZOLD 6. ) FELIX ALARD MORITZ HERMANN KILIAN VON PEZOLD 7. ) JOHANN FRIEDRICH GEORG LUDWIG VON PEZOLD 8. ) ADAM FRIEDRICH CARL LEOPOLD FRANZ SEVERIN VON PEZOLD RESPONDEN REPUBLIC OF ZIMBABWE

ARBITRATION: International arbitration - Applications for recognition and enforcement of awards of the International Centre for Settlement of Investment Disputes (ICSID) under - Sections 4, 5 and 6 of the Convention on the Settlement of Investment Disputes Act 1966 (Revised 1989) (ICSID Act), PRIVATE INTERNATIONAL LAW: Where foreign state respondent asserts sovereign immunity - Whether by Art 54(2) of the ICSID Convention the foreign state respondent has agreed to submit itself to the jurisdiction - Bilateral Investment Treaties - Malaysia High Court Jurisdiction - Procedural framework for service out of jurisdiction - Assets for enforcement - Domestic court enforcement - Foreign sovereign assets PUBLIC INTERNATIONAL LAW: Sovereign state immunity - Interpretation of the ICSID Convention - Whether the ICSID Convention excludes any claim for foreign state immunity in proceedings for the recognition and enforcement of an award - Meaning of recognition and enforcement in Art 54 and execution in Art 55 - Where Art 55 provides that nothing in Art 54 shall be construed as derogating from the law in force in any Contracting State in relation to immunity from execution

27/11/2023

YA Tuan Atan Mustaffa Yussof Ahmad

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=2df8cd55-b66f-4536-84ed-950b93795e24&Inline=true

DALAM MAHKAMAH PERUSAHAAN MALAYSIA 1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR ORIGINATING SUMMONS NO: WA-24NCC-322-07/2021 BETWEEN 1. ELISABETH REGINA MARIA GABRIELE VON PEZOLD 2. ANNA ELEONORE ELISABETH WEBBER (NEE VON PEZOLD) 3. HEINRICH BERND ALEXANDER JOSEF VON PEZOLD 4. MARIA JULIANE ANDREA CHRISTIANE KATHARINA BATTHYANY (NEE VON PEZOLD) 5. GEORG PHILIPP MARCEL JOHANN LUKAS VON PEZOLD 6. FELIX ALARD MORITZ HERMANN KILIAN VON PEZOLD 7. JOHANN FRIEDRICH GEORG LUDWIG VON PEZOLD 8. ADAM FRIEDRICH CARL LEOPOLD FRANZ SEVERIN VON PEZOLD …PLAINTIFFS AND REPUBLIC OF ZIMBABWE …DEFENDANT JUDGMENT [1] In this case, the Von Pezold family seeks recognition of ICSID arbitration awards against the Republic of Zimbabwe, a matter intertwining international law with sovereign interests. The heart of the dispute concerns expropriated properties, raising critical questions about the enforceability 27/11/2023 10:17:14 WA-24NCC-322-07/2021 Kand. 107 S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 of international arbitration awards in domestic courts. The Republic of Zimbabwe challenges this Court’s jurisdiction, highlighting the complex interplay between international agreements and national laws. My task is to navigate these legal intricacies, ensuring a fair and just resolution in accordance with the principles of law. This judgment will not only resolve a specific dispute but also contribute to the broader dialogue on international law and state sovereignty. Background facts [2] The parties in this matter primarily consist of the Von Pezolds as the Plaintiffs, and the Republic of Zimbabwe as the Defendant. [3] The Plaintffs originally held an 86.49% interest in three Zimbabwean companies - Border Timbers Limited, Border International (Private) Limited, and Hangani Development Co. (Private) Limited - collectively referred to as the “Border Companies.” Both the Plaintffs and the Border Companies had substantial investments in three large agricultural estates in Zimbabwe: Forrester Estate, Border Estate, and Makandi Estate. [4] Between 1980 and 2000, the Defendant carried out land reforms under its Land Reform Programme (“the Land Reforms”), aimed at modifying the ethnic distribution of land ownership. These reforms resulted in the expropriation S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 of various properties associated with the aforementioned estates between 2000 and 2007. [5] Consequently, two separate but related arbitration cases were initiated. On 6.11.2010, the Plaintffs filed a Request for Arbitration against the Defendant with the International Centre for Settlement of Investment Disputes (“ICSID”). The arbitral tribunal was established pursuant to the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (“ICSID Convention”). This arbitration case is designated as ICSID Case No. ARB/10/15, on 6.11.2010. They invoked the Germany- Zimbabwe Bilateral Investment Treaty (“German BIT”) signed on 29.9.1995, and the Switzerland-Zimbabwe BIT signed on 15.8.1996 (“Swiss BIT”). These arbitration proceedings will be referred to as the “Von Pezold Arbitration”. [6] The Border Companies began the second arbitration, identified as ICSID Case No. ARB/10/25, on 3.12.2010 under the Swiss BIT (“Borders Arbitration”). Although the focus of both arbitrations was on identical losses related to the Border Estate, they were not formally consolidated. [7] On 28.7.2015, an Arbitral Tribunal rejected the Defendant’s jurisdictional arguments and ruled in favour of the Plaintffs, granting both pecuniary and non-pecuniary reliefs. The award handed down by the Arbitral Tribunal (“the Award”) found the Defendant liable for breaching the treaties S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 through various expropriation and mistreatment measures damaging the Plaintffs’ investments. It ordered the Defendant to pay amounts totaling over US$200 million in compensation and damages. [8] The Defendant filed an Annulment Application on 21.10.2015 in respect of the Award, but this was dismissed by the ICSID Annulment Committee on 21.11.2018 (“the Decision on Annulment”). Notably, before the annulment application was made, the Plaintiffs had already divested their 86.49% stake in the Border Companies. [9] Despite the Defendant issuing a “Letter of Assurances” earlier on 30.3.2016, pledging to honour the arbitral awards if not annulled, these awards remain unfulfilled. [10] The case has now moved to Malaysian courts. On 27.7.2021, the Plaintiffs filed the Originating Summons in these proceedings and an Originating Summons No. WA- 24NCC-323-07/2021 (“OS 323”) - both referred to as “the Originating Summonses” - in an attempt to enforce the ICSID awards. OS 323 is in respect of the Award and this Originating Summons is in respect of the Decision on Annulment. The Plaintffs were granted Orders for Service Out of Jurisdiction by the Senior Assistant Registrar in respect of OS 323 and this Originating Summons respectively on 25.8.2021 (“Orders for Service Out of Jurisdiction”), enabling them to serve both OS 323 and this Originating Summons and affidavits on the Defendant S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 out of jurisdiction. The Defendant challenged the jurisdiction of the court on 17.1.2022 by filing Enclosure 11 in OS 323 and Enclosure 11 in this Originating Summons to set aside the Orders for Service Out of Jurisdiction respectively. Plaintiff’s application in this Originating Summons (Enclosure 1) [11] In this Originating Summons, the Plaintiff sought mainly for the following: a) A declaration that the Decision on Annulment by the ad hoc Committee established pursuant to the ICSID Convention in ICSID Case No. ARB/10/15 be recognised as binding and enforceable in the same manner as if it is a final judgment of this Court; and b) That the pecuniary obligations imposed by the Decision on Annulment be enforced as if it were a final judgment of this Court, including payment of specific sums as legal costs by the Defendant, with additional relief as deemed fit by the court. Defendant’s application to set aside service in Enclosure 11 [12] In Enclosure 11, the Defendant sought, inter alia, the following: S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 a) An order that the Order dated 25.8.2021 (Enclosure 6) giving leave to serve the Originating Summons dated 27.7.2021 out of jurisdiction on the Defendant be discharged and/or set aside; b) An order that service on the Defendant of the Originating Summons dated 27.7.2021 be set aside; c) A declaration that in the circumstances of this case, this Court has no jurisdiction over the Defendant in respect of the subject matter of the claim or the relief or remedy sought by the Plaintiffs in the Originating Summons dated 27.7.2021 against the Defendant; d) A declaration that this Court should not assume jurisdiction over the Plaintiffs’ action in the Originating Summons dated 27.7.2021; and e) An order that the Originating Summons dated 27.7.2021 is hereby set aside or struck out. Applications in OS 323 [13] In OS 323, via the originating summons, The Plaintiffs seek to have the Award recognised and enforced as a final court judgment, including the enforcement of substantial pecuniary obligations awarded for the Forrester, Makandi and Border Estates, costs, pre-award and post-award compound interest, and other reliefs such as moral S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 damages, with the costs of the application to be borne by the Defendant. The Defendant, via its application in Enclosure 11 therein mainly seeks to discharge or set aside the order allowing service OS 323 out of jurisdiction, contest the court's jurisdiction over the case, and requests the summons be set aside or struck out. Scope of judgment [14] In the context of this case, OS 323 and this Originating Summons were jointly heard, centring on fundamentally the same facts, issues and subject matter, although each pertains to distinct awards made by the Tribunal – OS 323 to the Award and this Originating Summons to the Decision on Annulment. The issues and subject matter of the Originating Summonses remain consistent as they emanate from the same arbitration proceedings, the Von Pezolds Arbitration. However, each originating summons involved two applications: one by the Plaintiff under the originating summons seeking recognition of the respective awards as binding and enforceable in the same manner as if it is a final judgment of this Court and the other by way of the Defendant’s notice of application aiming to set aside the order of service out of jurisdiction for each of the Originating Summonses. Separate Grounds of Judgment have been written for OS 323 and this Originating Summons which are identical in reasoning and structure, differing only in their reference to either the Award (in OS 323) or the Decision on Annulment (in this Originating Summons). In these Grounds S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 of Judgment, I will address both the Award and Decision on Annulment for expediency but my decision will only be in respect of the Decision on Annulment which is the subject matter of this Originating Summons. [15] These grounds relate to both my decisions in Enclosure 1 and Enclosure 11 save for those under the last two headings in paragraphs 120 to 142 below which relate specifically to my decision in Enclosure 11. Plaintiffs’ submissions [16] The Plaintffs’submissions are summarised as follows: a) The High Court is vested with jurisdiction to decide OS 323 and this Originating Summons, pursuant to the incorporation, by the Convention on the Settlement of Investment Disputes Act 1966 (Revised 1989) (“the ICSID Act”), of the ICSID Convention into Malaysian law, enabling the Court to enforce an arbitrator's award as a judicial order, supported by Section 23 of the Courts of Judicature Act 1964 (“CJA”) and judicial interpretations asserting that international agreements, exemplified by the ICSID Convention, gain enforceability in Malaysia only through specific legislative actions, such as the enactment of the ICSID Act. S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 b) In recognising the Award and the Decision on Annulment under the ICSID Convention in Malaysia, it is crucial to consider the Convention's implementation, which introduced significant legal innovations like enabling non-State entities to sue States directly and restricting State immunity, and Malaysia's commitment to these principles through signing and ratifying the Convention and enacting the ICSID Act to incorporate these provisions into its national law. c) Under the ICSID Act, an arbitrator's award made under the Convention is binding and enforceable like a court decree, with the Act defining “Court” as the High Court and incorporating the Convention, which mandates that awards are binding, not subject to appeal except as provided in the Convention, and must be recognised and enforced by Contracting States as if they were final court judgments, subject to each State's laws on judgment execution and state immunity. d) Under Article 54(1) of the ICSID Convention, as incorporated into Malaysian law via the ICSID Act, this Court is both authorised and obligated to recognise the Award and the Decision on Annulment as binding and enforce its pecuniary obligations as if it were a final judgment of a High Court in Malaysia, a requirement fulfilled by the Plaintiffs by providing S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 certified copies of the Award and the Decision on Annulment, with their binding nature and non- appealability established under the Convention and its recognition distinct from execution, as per international legal interpretations. e) The Plaintiff’s applications for leave to serve out of jurisdiction, grounded in Order 11 rule 1(1)(M) of the Rules of Court (“ROC 2012”), is valid as the Originating Summonses aim to enforce the Award and the Decision on Annulment, recognised as equivalent to a final judgment of a Malaysian court under the ICSID Act. f) The absence of assets does not detract from the Plaintiffs' right to seek recognition of the Award and the Decision on Annulment and the ancillary reliefs of enforcement and execution of the Award and the Decision on Annulment through their registration as Judgments of the High Court under the Originating Summonses filed pursuant to Sections 4, 5 and 6 of the ICSID Act 1966 and Order 69 rule 8 of the ROC 2012, which accords with Malaysia's obligations as a Contracting State that has ratified the ICSID Convention through the enactment of the ICSID Act 1966 to ensure recognition and enforcement of ICSID awards within its territories. S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 g) The Defendant cannot invoke sovereign immunity to avoid the jurisdiction of this Court in determining the Originating Summonses for recognition and enforcement of the Award and the Decision on Annulment under Articles 53(1) and 54(1) of the ICSID Convention and Section 3 of the Malaysian ICSID Act 1966, since state immunity only applies at the execution stage under Article 55 but not the recognition stage. Defendant’s submissions [17] The Defendant’s submissions are summarised as follows: a) The Defendant as a sovereign state it is entitled to immunity from the jurisdiction of the Malaysian courts under the doctrine of sovereign immunity, notwithstanding the provisions of the ICSID Convention as implemented in Malaysia through the ICSID Act. b) Under the restrictive doctrine of sovereign immunity, the Court only has jurisdiction over actions of a commercial or private nature, and in this case, the core dispute arises from the Land Reform Programme implemented by the Defendant, which are actions of a governmental or sovereign nature. Therefore, the Court should decline jurisdiction over the Defendant, as the Land Reforms do not S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 constitute a commercial act or transaction between the Plaintiffs and the Defendant. c) The Defendant has not submitted to the jurisdiction of the Malaysian Courts by waiving its sovereign immunity or agreeing in writing to adjudication in Malaysia. d) In seeking to enforce the “pecuniary obligations” of the Award and the Decision on Annulment in Malaysia, the Plaintiffs have not identified any enforceable assets or properties of the Defendant in Malaysia. As the Defendant’s assets in Malaysia are purely diplomatic, they are immune from jurisdiction and enforcement under international law, with no waiver of immunity against enforcement or execution of these assets. e) In the absence of any procedural framework enacted by Parliament governing the enforcement of ICSID awards under the ICSID Act, the Court cannot on its own motion create or confer new jurisdiction to enforce such awards where no express jurisdiction currently exists. f) Absent any legislation prescribing procedures for service of process on a foreign sovereign state, the Court cannot create or confer jurisdiction to effect service of the Originating Summonses out of S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 jurisdiction where no express jurisdiction currently exists under Malaysian law. g) The High Court's discretionary power under Order 11 rule 1 of the ROC 2012 should not have been exercised to grant leave for serving the Originating Summonses outside of jurisdiction as this Order does not govern service on a sovereign state. h) The Plaintiffs failed to fully disclose all relevant facts and documents, particularly the German and Swiss BITs during the Application for Leave. This lack of full and frank disclosure, coupled with the absence of evidence of the Defendant’s assets in Malaysia, warrants setting aside the Orders for Service Out of Jurisdiction. i) The current proceedings should be stayed as the German BIT and Swiss BIT limit the enforcement of ICSID arbitration awards to Germany, Switzerland, and/or Zimbabwe. Malaysian courts should honour agreed jurisdiction clauses unless exceptional circumstances are proven. Unless the Plaintiffs can justify why they should not be bound by the specific articles of the German and Swiss BITs, which designate Zimbabwe as the jurisdiction for enforcement, the Court should grant a stay in accordance with these clauses. S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 Analysis and findings of the Court Jurisdiction [18] I am satisfied that this Court has the jurisdiction to determine OS 323 and this Originating Summons seeking recognition of the Award and the Decision on Annulment respectively. [19] The legal basis for this Court's jurisdiction arises from the ICSID Act. Section 2 and Section 3 of the ICSID Act provide: “2. Interpretation In this Act, unless the context otherwise requires— “award” means an award given by the arbitrator appointed under the Convention; “Convention” means the Convention on the Settlement of Investment Disputes appearing in the Schedule; “Court” means the High Court. 3. Confinement of award An award made by an arbitrator under the Convention shall be binding and may be enforced in the same manner as if it is a decree judgment or order of the Court.” [20] Section 3 of the ICSID Act clearly stipulates that an ICSID award “shall be binding and may be enforced in the same manner as if it is a decree judgment or order of the Court.” The terms “Court”, “award” and “Convention” are clearly S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 defined in Sections 2 and 3 of the ICSID Act to refer specifically to the High Court of Malaya and arbitral awards rendered under the ICSID Convention. [21] Therefore, Parliament has expressly vested jurisdiction on this Court through the ICSID Act to recognise ICSID awards and give effect to the same. The ICSID Act makes the provisions of the ICSID Convention effective in Malaysia and designates the High Court as the Court for the recognition and enforcement of ICSID awards. The designated Court is required to recognise the Award and the Decision on Annulment which is considered an “award” for recognition purposes. [22] I am fortified in this view by the Federal Court's elucidation in Yong Teng Hing (t/a Hong Kong Trading Co) & Anor v Walton International Ltd [2011] 5 MLJ 629 that the High Court possesses original jurisdiction where it is expressly provided for under written law. The Federal Court observed: “[47] Meanwhile, s 23(2) of the CJA stipulates the original jurisdiction of the High Court. It states that: (ii) Without prejudice to the generality of subsection (1), the High Court shall have such jurisdiction as was vested in it immediately prior to Malaysia Day and such other jurisdiction as may be vested in it by any written law in force within its local jurisdiction. (Emphasis added.) [48] Thus, it is established that the High Court possesses original jurisdiction where it is expressly provided for by written law. One instance of a written law giving such jurisdiction is s 28(5) of the S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 Act. As such when a decision of a registrar of trademarks is being appealed against, the High Court is in fact exercising its original jurisdiction and not an appellate jurisdiction. [49] The foregoing proposition is also supported by O 5 5 of the RHC which is entitled ‘Appeals to the High Court from the Subordinate Courts and Statutory Bodies’. Relying the heading as an aid to interpreting the section (see Foo Loke Ying & Anor v Television Broadcasts Ltd [1985] 2 MLJ 35 (SC); Public Prosecutor v Tan Tatt Eek & other appeals [2005] 2 MLJ 685; [2005] 1 CLJ 713) therein, a distinction is made between decisions of subordinate courts being appealed against and that of statutory bodies (which includes tribunals and administrative officers). [23] Here, the ICSID Act satisfies this requirement as it is the legislation giving effect to Malaysia’s commitments under the ICSID Convention. [24] For the next part of this analysis, Section 23 of the CJA is produced below for reference: “(1) Subject to the limitations contained in Article 128 of the Constitution the High Court shall have jurisdiction to try all civil proceedings where - (a) the cause of action arose; (b) the defendant or one of several defendants resides or has his place of business; (c) the facts on which the proceedings are based exist or are alleged to have occurred; or (d) any land the ownership of which is disputed is situated, within the local jurisdiction of the Court and notwithstanding anything contained in this section in any case where all parties consent in writing within the local jurisdiction of the other High Court. S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 (2) Without prejudice to the generality of subsection (1), the High Court shall have such jurisdiction as was vested in it immediately prior to Malaysia Day and such other jurisdiction as may be vested in it by any written law in force within its local jurisdiction.” [25] The Defendant puts forward a contention which revolves around the inherent jurisdiction of the High Court and the application of Section 23 of the CJA and Order 11 rule 1 of the ROC 2012. The Defendant leans on the premise that for the High Court to have jurisdiction, especially in cases involving extra-territorial elements, specific procedural and jurisdictional thresholds must be met, as highlighted in Goodness For Import And Export v Phillip Morris Brands Sarl [2016] 5 MLJ 171 (Federal Court). [26] However, I find that Section 23(2) CJA is directly applicable in this case. This provision states that that the High Court shall also have “...such other jurisdiction as may be vested in it by any written law in force within its local jurisdiction.” As elucidated above, the ICSID Act constitutes that very written law vesting jurisdiction on this Court to recognise the Award and the Decision on Annulment in accordance with Malaysia’s treaty commitments. Section 23(2) CJA is satisfied on the facts through the operation of the ICSID Act. [27] Conversely, I accept the Plaintiffs’ submission that Section 23(1) CJA does not apply here as none of the limbs under that provision govern the present situation where the Award and the Decision on Annulment have already been S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 rendered, conclusively determining the lis between the parties. There is no cause of action still pending before any court or tribunal. The arguments canvassed by the Defendant that under Section 23(1) CJA are therefore irrelevant for establishing jurisdiction in this case. Section 23(2) CJA is the applicable provision instead. [28] The binding nature of ICSID awards against Contracting States is expressly set out in Articles 53, 54 and Article 55 of the ICSID Convention, which is the Schedule to the ICSID Act. These are laid down below: “Article 53 (1) The award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in this award except to the extent that enforcement shall have been stayed pursuant to the relevant provisions of this Convention. (2) For the purposes of this Section, “award” shall include any decision interpreting, revising or annulling such award pursuant to Articles 50, 51 or 52. Article 54 (1) Each Contracting State shall recognise an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State. A Contracting State with a federal constitution may enforce such an award in or through its federal courts and may provide that such courts shall treat the award as if it were a final judgment of the courts of a constituent state. (2) A party seeking recognition or enforcement in the territories of a Contacting State shall furnish to S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 a competent court or other authority which such State shall have designated for this purpose a copy of the award certified by the Secretary-General. Each Contracting State shall notify the Secretary- General of the designation of the competent court or other authority for this purpose and of any subsequent change in such designation. (3) Execution of the award shall be governed by the laws concerning the execution of judgments in force in the State in whose territories such execution is sought. Article 55 Nothing in Article 54 shall be construed as derogating from the law in force in any Contracting State relating to immunity of that State or of any foreign State from execution.” [29] The Plaintiffs have exhibited certified copies of the Award and the Decision on Annulment in accordance with Article 54(2). It is clear that this Court, as the designated “competent court”, is mandated to recognise the Award and the Decision on Annulment by virtue of the ICSID Act implementing the ICSID Convention in Malaysia. [30] Additionally, I also accept the Plaintiffs' contention that Order 11 ROC 2012 does not confer jurisdiction independently in this case. As held by the Federal Court in Petrodar Operating and Matchplan (M) Sdn Bhd & Anor v William D Sinrich & Anor [2004] 2 MLJ 424, once the court is clothed with extra-territorial jurisdiction under Section 23 CJA, Order 11 becomes a mere procedural formality for enabling the plaintiff to effect service abroad. Here, jurisdiction already exists by law through Section 23(2) CJA S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 read with the ICSID Act. Recourse to Order 11 ROC 2012 is therefore unnecessary. [31] In light of the above analysis, I find that the Plaintiffs have satisfactorily established the jurisdiction of this Court over the present proceedings. The originating summons is properly before this Court and I shall proceed to deliberate on this matter. Sovereign immunity [32] At the outset, it must be emphasised that the Plaintiffs presently seek recognition, and not yet execution, of the Award and the Decision on Annulment under the Originating Summonses. [33] The Defendant contends that it is immune from both the present proceedings on the enforcement of the Award and the Decision on Annulment as well as any eventual execution measures, due to its status as a sovereign state. It argues that it has not submitted to the jurisdiction of the Malaysian Court or waived its sovereign immunity. Specifically, the Defendant submitted that it is immune from the proceedings to recognise the Award and the Decision on Annulment, as well as their enforcement and/or execution against its assets and/or properties in Malaysia, because it has not submitted to the jurisdiction of the Malaysian Court or waived its immunity as a sovereign state. S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 [34] With due consideration, I respectfully find that the Defendant's claim of sovereign immunity is not applicable in this context. [35] In Sodexo Pass International SAS v Hungary [2021] NZHC 371, the New Zealand High Court considered the interplay between the ICSID Convention and sovereign immunity. Sodexo had investments in Hungary which were impacted when Hungary introduced tax reforms in 2010. Unhappy with the tax changes, Sodexo commenced ICSID arbitration against Hungary in 2014 alleging the reforms unlawfully expropriated its investment. In January 2019, the ICSID tribunal issued a €72 million award in Sodexo's favour. Hungary's annulment bid failed in May 2021, finalising the award. Sodexo then sought recognition and enforcement of this ICSID award in the New Zealand High Court against Hungary. Hungary contested the court's jurisdiction. [36] The New Zealand High Court held that by acceding to the ICSID Convention, states have agreed that ICSID awards can be recognised domestically as binding judgments, but they maintain immunity for subsequent execution processes. Recognition enables the domestic court to later apply immunity laws on execution. Cooke J stated: “[25] The meaning of these articles appears clear. Their terms overtly apply to enforcement against state parties as well as investor parties to the awards. Sodexo is entitled to have the award recognised in New Zealand as if it were a judgment S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 of the New Zealand Court in order that it may be enforced under New Zealand’s laws. The High Court of New Zealand is obliged to so recognise the award as if it were a judgment. But Hungary is able to claim state immunity under New Zealand law in relation to any execution processes. That immunity does not prevent the award from first being recognised, however. Hungary has agreed that the award may be so recognised, and has waived any adjudicative immunity it had in relation to recognition. It is only after recognition of the award in the New Zealand judicial system that New Zealand law can be applied to assess the claims to immunity in relation to execution steps. It is agreed that the New Zealand Court has jurisdiction to make such decisions. [26] I do not accept Hungary’s argument that enforcement and execution are synonymous and that the preservation of state immunity in art 55 concerning execution contemplates immunity from all the steps contemplated in art 54, including recognition. Enforcement is a more general term. The concepts of recognition in art 54(1), and execution in arts 54(3) and 55, are the more technical and precise concepts. To enforce an award one needs to take these more technical steps. First the award is recognised and then execution steps may be taken. The immunity applicable to execution is not an immunity from the prior step involved in having the award recognised in domestic law. Indeed, it is only possible to apply the domestic laws on immunity from execution if the domestic courts first have jurisdiction. So, for this reason art 55 does not make Hungary immune from the jurisdiction. Recognition of the award is necessary in order to allow such domestic law to be applied. The protest to jurisdiction needs to be set aside on that basis.” [37] I respectfully adopt this interpretation. [38] The Plaintiffs seek for the reliefs in OS 323 and this Originating Summons premised upon the ICSID Act and the ICSID Convention, which provide for recognition and S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 enforcement of ICSID awards in the same manner as a Court judgment. [39] The ICSID Convention has different terms for the recognition and execution of Tribunal awards. Article 54 of the ICSID Convention requires each Contracting State to recognise Tribunal awards, while Article 55 states that this recognition does not affect the law in force relating to the immunity of the state from execution. Therefore, according to the ICSID Convention, the consideration of sovereign immunity is limited to the execution stage after the recognition of Tribunal awards as final judgments of the relevant Contracting State. [40] The words employed in Articles 54 and Article 55 of the ICSID Convention are clear and this Court will give them their natural and ordinary meaning without departing from their plain meaning as there are no clear reasons for doing so. See Tebin bin Mostapa (as administrator of the estate of Hj Mostapa bin Asan, deceased) v Hulba- Danyal bin Balia & Anor (as joint administrators of the estate of Balia bin Munir, deceased) [2020] 4 MLJ 721 (Federal Court). [41] The Court accepts the view stated by the learned authors Christoph H. Schreuer, Loretta Malintoppi, August Reinisch, and Anthony Sinclair of The ICSID Convention: A Commentary who commented on Article 54(3) of the ICSID Convention. They observe that state immunity cannot be used to prevent the recognition of an ICSID award, and S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 state immunity only applies when concrete measures of execution are taken to enforce the award's pecuniary obligations. It was observed: “Under Art. 54(3) only execution but not recognition is governed by the law of the forum State. Art. 55, by its own terms, refers to execution but not to recognition. Therefore, State immunity cannot be used to thwart proceedings for the recognition of an award. In addition, State immunity does not affect the res judicata effect of an award once it has been recognized (see Art. 54, paras. 43-46). State immunity only comes into play when concrete measures of execution are taken to enforce the award’s pecuniary obligations typically after recognition has been granted.” (emphasis added) [42] Therefore, when acceding to the ICSID framework under this Convention, the Defendant agreed to recognition of ICSID Awards and annulment decisions by domestic courts in all Contracting States, including Malaysia. However, at the execution phase, the Defendant can still invoke state immunity under local laws. [43] I am fortified in this view by the reasoning of the Australian Federal Court in Kingdom of Spain v Infrastructure Services Luxembourg SARL [2021] FCAFC 3. In this case, the respondents invested EUR139.5 million into solar energy projects in Spain under a subsidy scheme. Spain withdrew the subsidies in 2010. The respondents filed an ICSID claim alleging this breached the Energy Charter Treaty. In June 2018, the ICSID tribunal awarded the respondents EUR101 S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 million plus interest. The respondents then sought recognition and enforcement of this award in the Australian Federal Court against Spain. Spain pleaded state immunity. This appeal arose from the primary judge's decision to reject that immunity claim and assume jurisdiction. [44] Allsop CJ emphasised the “unequivocal” obligation under Article 54 to recognise ICSID awards, unaffected by Article 55 immunity from execution. He held that proceedings to recognise an award give it equal status to a domestic court judgment as a preliminary measure before any execution. This remains an act of recognition unprotected by immunity. It was observed: “3 Recognition and enforcement of an arbitral award are distinct, but related concepts. The linguistic debate as to whether execution is synonymous with enforcement or is a concept within it need not, it seems to me, be debated or resolved as a question of fixed content, for all purposes. We are dealing here with Arts 54 and 55 of the ICSID Convention. …. 6 The obligation to recognise an award under article 54 was unequivocal and unaffected by questions of immunity from execution. As the reasons of Perram J and as the discussion of Professor Schreuer (op cit pp 1128-1134) both show, sovereign immunity from execution (Arts 54(3) and 55) does not arise at the point of recognition.” [45] Accordingly, the Defendant cannot claim immunity to resist or prevent recognition of the Award and Decision by this Court. Considerations of immunity are premature at this S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 juncture and can only be pursued if and when execution is attempted. The Plaintiffs have only applied for recognition under the ICSID framework thus far. [46] Further, I find that the Defendant has already submitted to the jurisdiction of Malaysian courts for recognition purposes and simultaneously waived any claim to immunity in that regard. [47] In its own “Reply on the Stay of Enforcement of Awards” which was filed on 1.7.2016 for the purposes of the stay proceedings before the ad hoc Committee prior to the Decision on Annulment, the Defendant stated that the Plaintffs had the right to enforce the Award in any ICSID Contracting State which the Defendant promised to comply with if it remained intact after annulment proceedings. This clearly displays the Defendant's submission to domestic court jurisdiction and waiver of immunity for recognition and potential enforcement measures in foreign Contracting States. [48] By ratifying the ICSID Convention and making such representations, the Defendant has acquiesced to Contracting States including Malaysia recognising the Award and the Decision on Annulment as a binding domestic court judgment pursuant to Article 54 without claiming immunity. S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 [49] Further, the Defendant contends that the Land Reforms underlying the Tribunal's Award were governmental acts forming part of its sovereign functions. It claims immunity on that basis since common law only allows suits against foreign states for private and commercial acts, citing the rule in Rahimtoola v H.E.H. The Nizam of Hyderabad [1958] AC 379 (House of Lords) and applied in Hii Yii Ann v Deputy Commissioner of Taxation of the Commonwealth of Australia & Ors [2018] 7 MLJ (High Court). Specifically, the Defendant submitted that the Court has no jurisdiction over it as the Land Reforms implemented by the Defendant in Zimbabwe giving rise to alleged breaches of the German BIT and the Swiss BIT and forming the core of the dispute between the Plaintiffs and the Defendant were actions of a governmental or sovereign nature, whereas the Court only has jurisdiction over actions of a commercial or private nature of a foreign sovereign state. [50] With respect, this argument fails to apprehend that the ICSID Convention represents an international agreement modifying common law immunity. In any case, the Tribunal has already determined in the Award and the Decision on Annulment that it has jurisdiction over the Defendant's acts leading to the dispute, which awards are now final and binding. As a signatory to the ICSID Convention, the Defendant is precluded from reopening the question of the Tribunal's jurisdiction or the character of the Land Reforms underlying the dispute. The Award is now res judicata as between the parties. By virtue of Articles 53(1) and 54(1) of S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 the ICSID Convention, the Award and the Decision on Annulment are binding on the Contracting States to the ICSID Convention, including the Defendant. As such, the Defendant is obliged to recognise the Award and the Decision on Annulment in accordance with its obligations under Article 54 of the Convention, as implemented in Malaysia via the ISCID Act. The Defendant cannot resist recognition or enforcement of the Award and the Decision on Annulment on grounds pertaining to jurisdiction, nor sustain any reference to the impugned Land Reforms and their implementation as acts of a sovereign and governmental nature at this stage. [51] I also dismiss as premature the Defendant's contention regarding immunity for its diplomatic assets in Malaysia and the lack of identified local assets for enforcement. Here, the Defendant argues that since it only has diplomatic assets in Malaysia which are immune from execution, and the Plaintiffs have not identified any commercial assets for enforcement, the Court lacks jurisdiction. These considerations may apply at the execution stage later on but are presently inapplicable. The Plaintiffs have not attempted execution thus far. At this point, only recognition is sought pursuant to Malaysia's commitments under the international ICSID mechanism. [52] In light of the foregoing analysis, I dismiss in entirety the Defendant's invocation of sovereign immunity as it clearly falls within the agreed mechanism for recognition under the S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 ICSID Convention implemented in Malaysian law through the ISCID Act. Contracting States understandably maintain immunity at the execution phase later, but no immunity applies against proceedings simply seeking recognition of ICSID Awards and annulment decisions. That is the operative scheme adopted by state parties. The Originating Summonses merely seek such recognition. Accordingly, the Defendant's claim for sovereign immunity at this stage fails. Lack of procedural framework [53] The Defendant submitted that the Court has no jurisdiction over the Defendant, a foreign sovereign state, given that there is no procedural framework legislated by Parliament for the enforcement of ICSID awards. Section 3 of the ICSID Act only states that ICSID awards can be enforced in the same way as a Court order, without any specific procedural mechanism. [54] The contrast between the treatment of arbitration awards and foreign judgments is highlighted by the Defendant in relation to the procedural frameworks provided by the Arbitration Act 2005 (“AA 2005”), the Arbitration Act 1952 (“AA 1952”), and the Reciprocal Enforcement of Judgments Act 1958 (“REJA 1958”). Order 69 of the ROC 2012 only applies to proceedings governed by AA 2005 and the repealed AA 1952 and does not give the Court the powers to enforce awards under the ICSID Act. S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 [55] The Defendant also contrasted the position in Malaysia with that of other jurisdictions such as the United Kingdom and Singapore where specific laws and rules have been enacted to govern the registration and enforcement of ICSID awards. In the UK, ICSID arbitration awards are governed by the Arbitration (International Investment Disputes) Act 1966 and the Civil Procedural Rules 1998 whereas in Singapore this is governed by the Arbitration (International Investment Disputes) Act 1968 and the Arbitration (International Investment Disputes) Rules 2002 Chapter 11, Section 6. [56] The Defendant also argued that under Malaysian law, the courts are only empowered to interpret laws passed by Parliament and cannot use their inherent power to address gaps in the law. The responsibility to legislate and remedy any gaps in the law lies with Parliament. In support, the Defendant cited Peh Chin Ping v Gan Ho Soon [2021] MLJU 2001 (High Court), NKM Holdings Sdn Bhd v Pan Malaysia Wood Bhd [1987] 1 MLJ 39 (Supreme Court) and Sia Cheng Soon & Anor v Tengku Ismail bin Tengku Ibrahim [2008] 3 MLJ 753 (Federal Court) [57] I find the Defendant's submissions to be unpersuasive upon careful evaluation. [58] The lack of a procedural framework in the ICSID Act does not preclude this Court’s substantive jurisdiction to allow the S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 Originating Summonses seeking recognition of the Award and the Decision on Annulment. [59] As the authorities cited demonstrate, procedure is but the handmaid of justice. The absence of prescribed procedures does not fetter the Court where jurisdiction has been substantively conferred. This Court remains imbued with powers intrinsic and inherent to it, as a superior court of law, to adapt existing procedures to the extent required in service of the ends of justice. Indeed, the Privy Council in Board v Board [1919] A.C. 956 (on appeal from Alberta, Canada) held that “If the right exists, the presumption is that there is a Court which can enforce it, for if no other mode of enforcing it is prescribed, that alone is sufficient to give jurisdiction to the King’s Courts of justice.” Similarly, in Re King & Co.’s Trade Mark [1892] 40 W.R. 580, the English Court of Appeal held that “The jurisdiction of the Court is, to my mind, incontestable. The procedure is nowhere fixed. Any procedure which comes up to an Englishman’s standard of justice is enough to satisfy this Act.” Other authorities of note include the Australian case R v Rawson, exparte Moore [1976] Qd R 138, which held that a statute conferring substantive jurisdiction impliedly empowers procedural adaptability; the New Zealand Court of Appeal case of New Zealand Baking Trades Employees Industrial Union of Workers v General Foods Corporation (NZ) Ltd BC8560136 which held that substantive jurisdiction can be exercised using flexible procedures as needed; and the case of Rashidah Bte Mohammad v Mayban Finance Bhd S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 [2003] 5 MLJ 529 which held that statutory powers remain operative pending formalisation of rules. [60] Applying these cardinal principles, I find that Section 3 of the ICSID Act substantively empowers this Court, as the designated competent court, to recognise ICSID awards as “binding and enforceable in the same manner as if it is a decree, judgment or order of the Court.” It bears restating that Section 3 remains fully operative notwithstanding the lack of attendant or ancillary procedural rules. This Court by implication can formulate the appropriate procedures for exercising the jurisdiction substantively granted by Parliament. As the Supreme Court stressed in NKM Holdings “The duty of the Court, and its only duty is to expound the language of the Act in accordance with the settled rules of construction.” Here, the language of Section 3 is clear – this High Court can recognise ICSID awards. That substantive power and duty abides irrespective of absent procedures. [61] Contrary to the Defendant’s contention, I do not find that Parliament deliberately omitted attendant procedures by confining such regimes only to analogous legislation like the AA 2005 and REJA whilst enacting the ICSID Act bereft of the same. As the Court of Appeal stated clearly in Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor [1995] 1 MLJ 719, Parliament must always be assumed cognisant of existing law when legislating on any subject. Accordingly, when substantively empowering recognition of ICSID S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 awards under Section 3, Parliament is legally presumed cognisant that substantive jurisdiction carries the inherent capacity for Courts to adapt and adopt requisite procedures to fulfil the judicial role. This presumption holds special significance in respect of international treaties like the ICSID Convention which compel domestic incorporation and compliance. Parliament understands Courts will act purposively to achieve substantive justice utilising inherent powers where needed. [62] The argument that absent legislated procedures, judicial innovation transgresses the principle of separation of powers must therefore fail. Courts act legitimately not only within domains demarcated by legislative words but also deploying powers intrinsic to delivery of justice when discharging constitutional roles, for substance must always prevail and direct the judicial function. As jurisprudence from various Commonwealth jurisdictions demonstrates, courts routinely adapt their processes to substantively exercise unfamiliar jurisdictions like the ICSID Act. Indeed, in Freeman, the Supreme Court of Canada confirmed that whilst territorial jurisdiction is generally circumscribed, legislative authority creating the Court can expressly confer extra-territorial jurisdiction to be substantively exercised utilising the Court’s incidental powers necessary to fulfil that jurisdiction. Similarly, in Surinder Singh v Central Government & Ors 1986 AIR SC 2166, the Indian Supreme Court held that powers statutorily granted expressly and unconditionally remain fully operational pending S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 formalisation of rules, thereby underscoring that substantive capacities imply interim procedural dispensations. [63] On that basis, anchoring OS 323 and this Originating Summons on Section 3 of the ICSID Act which substantively empowers recognition of ICSID awards, I find that this Court is legally and fully equipped to grant the recognition and declarations presently sought without requiring any antecedent procedural rules or regimes provided under the law. As the Court of Appeal made clear in Stone World Sdn Bhd v Engareh (M) Sdn Bhd [2020] 2 MLJ 208, these inherent powers must always be judiciously exercised to remedy injustice, give effect to substantive legislation and prevent abuse of legal process whilst remaining guided by considerations of proportionality and good faith. [64] Furthermore, at this juncture, considerations regarding immunity from execution measures do not arise to limit the exercise of jurisdiction as matters of execution are separate and subsequent to mandatory recognition under the treaty. The Plaintiffs presently only seek recognition on the basis of Malaysia’s treaty obligations under Articles 53(1) and 54(1) of the ICSID Convention. Questions of state immunity from execution that the Defendant may potentially invoke later are premature and inapplicable during this initial recognition stage. S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 [65] As the recent New Zealand High Court case of Sodexo confirms, even absent a bespoke procedural regime, Courts readily adapt ordinary procedures to fulfil mandatory substantive obligations consistently with powers and functions statutorily provided, like Section 3 of the ICSID Act. There, despite lacking any specific statute or process for registering ICSID awards against foreign states, the Court effectively extended its existing personal service dispensations to achieve valid service on Hungary in the originating process for recognising the award. [66] Specifically, the High Court in Sodexo recognised New Zealand's obligations under the ICSID Convention to enforce arbitration awards, as implemented domestically through the ICSID Act. Although the Act does not contain detailed procedures for enforcement against foreign states, the Court adapted its own procedural rules on personal service to permit Sodexo to serve its application on Hungary and assert jurisdiction. This allowed the Court to fulfill New Zealand's substantive ICSID obligations by first recognising the award, while preserving Hungary's ability to claim immunity regarding later execution. The Court also emphasised that procedural rules should be interpreted to facilitate ICSID enforcement consistent with New Zealand's international commitments. [67] For the foregoing reasons, I find that the lack of attentive procedures and rules in the ICSID Act provides no impediment whatsoever to granting the substantive prayers S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 36 for recognition and declarations allowed through OS 323 and this Originating Summons. Justice inheres in substantive rights which demand remedies. Courts as foremost custodians of justice are imbued with innate capacities to deliver substantive justice utilising flexible adoption of existing procedures even where bespoke regimes are legislatively absent when particular jurisdictions emerge. At all times, procedural modes remain subservient to substantive dictates of law and justice. Enforcement limited under Swiss and German BITs [68] The Defendant submitted that these present proceedings should be stayed, given that the applicable BITs under which the Award and the Decision on Annulment were made expressly limit enforcement to only Germany, Switzerland, and/or Zimbabwe i.e. within the jurisdiction of the contracting states to the BITs. The Defendant prays that the Court should stay the present proceedings, as Malaysia is not the proper forum for the claims and/or relief sought by the Plaintiffs. [69] The provisions of the BITs stating that the arbitral award should be enforced according to the domestic laws of the Contracting Party where the investment is located are: a) Article 11(3) of the German BIT which states: “The award shall be binding on the parties and shall not be subject to any appeal or remedy other than that S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 37 provided for in the said Convention. The award shall be enforced in accordance with the domestic law of the Contracting Party in the territory of which the investment in question is situated.” b) Article 10(6) of the Swiss BIT which states: “...The arbitral award shall be final and binding for the parties involved in the dispute and shall be enforceable in accordance with the laws of the Contracting Party in which the investment in question is located.” [70] I have closely considered the parties' submissions, evidence and authorities on whether the applicable bilateral investment treaties (BITs) limit enforcement of the ICSID award to Zimbabwe. I do not think they do. [71] The Defendant heavily relies on Article 11(3) of the German BIT and Article 10(6) of the Swiss BIT to argue that recognition and enforcement of the award is limited to the state where the underlying investment lies. However, its interpretation does not properly account for the full text and context. [72] When read in entirety, neither article expressly states that enforcement can only occur within the host state's domestic legal system or courts. Article 11(3) of the German BIT and Article 10(6) of the Swiss BIT do not state that an investor can only enforce an arbitration award in Zimbabwe. There is S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 38 nothing in these provisions to derogate from the waiver of sovereign immunity that exists due to the Defendant's agreement in the BITs to arbitrate disputes at ICSID and the terms of Article 54(1) of the ICSID Convention. [73] Certainly, the language in the Articles requires applying local laws if enforcement takes place where the investment lies. But it does not clearly prohibit or exclude enforcement in other Contracting States to the ICSID Convention like Malaysia. [74] The subsequent sentence of Article 11(3) merely states that if the Award and the Decision on Annulment are to be enforced in Zimbabwe, it shall be enforced in accordance with domestic laws of Zimbabwe but does not prevent the enforcement of the award outside of Zimbabwe. [75] Article 11(3) of the German BIT provides that the remedy available is as provided in the ICSID Convention. The subsequent sentence that the award shall be enforced in accordance with the domestic law of the Contracting State in the territory of which the investment is situated does not mean that the investor can only enforce an arbitration award in Zimbabwe. The purpose of investment treaties is to promote foreign investment, and the recognition and enforcement mechanism under the ICSID Convention is a core feature. If the award could only be enforced in the respondent state, this would nullify the purpose of investment treaties. There is no language in the article that S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 39 prohibits the enforcement of the award outside of the respondent state. [76] In Article 10(6) of the Swiss BIT, there is no restriction at all in this Article that limits the enforcement of the Award and the Decision on Annulment in Zimbabwe alone. Instead, there is a recognition that they are enforceable in Zimbabwe in accordance with its domestic laws. [77] The absence of any reservation made by the Defendant to restrict the terms of the ICSID Convention is significant, as it means that the Convention can be enforced in any ICSID Contracting State. This is reinforced by Article 70 of the Convention, which specifies that the Convention applies to all territories for which a Contracting State is responsible, unless they have excluded them. Article 70 provides: “This Convention shall apply to all territories for whose international relations a Contracting State is responsible, except those which are excluded by such State by written notice to the depositary of this Convention either at the time of ratification, acceptance or approval or subsequently.” [78] The Defendant referred the Court to the Court of Appeal case of World Triathlon Corporation v SRS Sports Centre Sdn Bhd [2019] 4 MLJ 394 for the proposition that Malaysian courts are required to enforce an agreed jurisdiction clause, and a stay should be granted unless the challenging party can demonstrate exceptional circumstances justifying a refusal. In this case, an American S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 40 company owning IRONMAN Triathlon trademarks appealed against a Malaysian High Court decision, which dismissed its application to stay proceedings initiated by a Malaysian licensee for unlawful termination of their agreement, citing the agreement's Florida-exclusive jurisdiction clause as overridden by the convenience and economy of having witnesses and evidence in Malaysia. However, this case is not applicable as it dealt with agreements with “exclusive jurisdiction clauses” while there is no such clause in this case. Instead, the ICSID Act enforces the ICSID Convention which provides for the recognition and enforcement of pecuniary obligations imposed by an ICSID award as if it were a final judgment of a Court arising from treaty obligations of nations under the ICSID Convention. [79] In any event, the interpretation that the BITs expressly limit enforcement of the awards to only Germany, Switzerland, and/or Zimbabwe is not consistent with the Most Favoured Nation (“MFN”) clauses present in the agreements as the effect of this interpretation would be the investments and activities of nationals of Germany and Switzerland will be treated less favourably than investments and activities of third states. The MFN clauses are Articles 3 and 8 of the German BIT and Articles 4 and 8 of the Swiss BIT. [80] Article 3 of the German BIT establishes that each contracting party shall treat investments and activities of nationals or companies of the other party no less favourably S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 41 than investments and activities of its own nationals or companies, or those of any third state. It states: “(1) Neither Contracting Party shall in its territory subject investments owned or controlled by nationals or companies of the other Contracting Party to treatment less favourable than that which it accords to investments of its own nationals or companies or to investments of nationals or companies of any third State. (2) Neither Contracting Party shall in its territory subject nationals or companies of the other Contracting Party, as regards their activities in connection with their investments, to treatment less favourable than that which it accords to its own nationals or companies or to nationals or companies of any third State. (3) The treatment granted under this Article shall not relate to the benefit of any treatment, preference or privilege which either Contracting Party accords to nationals or companies of third States on account of its membership of, or association with, a customs, monetary, or economic union or a common market or free trade area. (4) The treatment granted under this Article shall not relate to any benefit which either National Treatment and Most Favoured Nation Treatment Contracting Party accords to nationals or companies of third States by virtue of a double taxation agreement or any other agreement regarding matters of taxation.” [81] Article 8 of the German BIT provides that if there are existing laws or international obligations that provide more favourable treatment to investments by nationals or companies of one Contracting Party than what is provided by the current agreement, then that more favourable treatment will prevail. It states: S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 42 “(1) If the laws of either Contracting Party or obligations under international law existing at present or established hereafter between the Contracting Parties in addition to this Agreement contain a provision, whether general or specific, entitling investments by nationals or companies of the other Contracting Party to a treatment more favourable than is provided for by this Agreement, such provision shall to the extent that it is more favourable prevail over this Agreement. (2) Each Contracting Party shall observe any other obligation it has assumed with regard to investments in its territory by nationals or companies of the other Contracting Party.” [82] Article 4 of the Swiss BIT states that the Contracting Parties must accord treatment to investors of the other Contracting Party that is not less favourable than the treatment it accords to its own investors or to investors of any third State. It states: “Investments and returns of investors of each Contracting Party shall at all times be accorded fair and equitable treatment and shall enjoy full protection and security in the territory of the other Contracting Party. Neither Contracting Party shall in any way impair by unreasonable or discriminatory measures the management, maintenance, use, enjoyment, extension or disposal of investments in its territory of investors of the other Contracting Party. Each Contracting Party shall in its territory accord investments or returns of investors of the other Contracting Party treatment not less favourable than that which it accords to investments or returns of its own investors or to investments or returns of investors of any third State, whichever is more favourable to the investor concerned. Each Contracting Party shall in its territory accord investors of the other Contracting Party treatment not less favourable than that which it accords to its own investors or to investors of any third State, S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 43 whichever is more favourable to the investor concerned. If a Contracting Party accords special advantages to investors of any third State by virtue of an agreement establishing a free trade area, a customs union, a common market or a similar regional organisation or by virtue of an agreement on the avoidance of double taxation, it shall not be obliged to accord such advantages to investors of the other Contracting Party.” [83] Article 8 of the Swiss BIT provides that if there are provisions in the laws of either Contracting Party or in international agreements that entitle investments by investors of the other Contracting Party to more favourable treatment than that provided in this agreement, such provisions will prevail over this agreement. It states: “(1) If provisions in the laws of either Contracting Party or in international agreements entitle investments by investors of the other Contracting Party to treatment more favourable than is provided for by this Agreement, such provisions shall to the extent that they are more favourable prevail over this Agreement. (2) each Contracting Party shall observe any other obligation it has assumed with regard to investments in its territory by investors of the other Contracting Party.” [84] The BIT between the Netherlands and the Defendant does not contain the equivalent of Article 11(3) of the German BIT or the equivalent of Article 10(6) of the Swiss BIT. Through the German and Swiss BITs MFN Clauses, the Defendant made commitments to extend better rights to investors from other countries to Swiss and German investors. As there is no restriction in the Dutch BIT that S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 44 enforcement of the awards is limited to only Netherland and/or Zimbabwe, the Plaintiffs, who are Swiss and German investors, should not be subject to the restrictions in Article 11(3) of the German BIT and Article 10(6) of the Swiss BIT as interpreted by the Defendant. [85] The arbitration case of Emilio Agustín Maffezini v The Kingdom of Spain (ICSID Case No. ARB/97/7) dealt with this issue. In this case, Argentine investor Emilio Agustín Maffezini contested against Spain over investments in a chemical company, invoking the MFN clause of the Argentina-Spain BIT to access favourable dispute settlement terms from the Chile-Spain BIT. The Argentine- Spanish BIT, provides that foreign investors must receive treatment no less favourable than that accorded to investors of a third country. The Chile-Spain BIT allows investors to opt for arbitration without first seeking redress in domestic courts. The tribunal concluded that the MFN clause in the Argentine-Spanish BIT encompasses the dispute settlement provisions of the treaty, allowing the investor to submit the dispute to arbitration without first accessing the Spanish courts, in reliance on the more favourable arrangements contained in the Chile-Spain BIT and the legal policy adopted by Spain regarding the treatment of its own investors abroad. [86] I am of the view that this approach is correct and adopt the same by holding that the Swiss and German BITs MFN clauses is applied to extend provisions of the Dutch BIT to S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 45 the protection of Plaintiffs’ rights and interests as the beneficiary of the MFN clauses. In this instance the Dutch BIT relates to the same subject matter as the Swiss and German BITs. I also do not see that there is any contravention of public policy considerations in adopting this approach. Absence of Defendant’s assets in Malaysia [87] The Defendant’s position is that the Plaintiffs cannot enforce the Award and the Decision on Annulment in Malaysia against the Defendant’s assets when the Plaintiffs have failed to show assets or properties of the Defendant that they can enforce in Malaysia when applying for the recognition and enforcement of the Award and the Decision on Annulment as judgments of the High Court. The Defendant argued that the Plaintiffs' action is speculative since the Plaintiffs failed to do any prior analysis or investigation to disclose sufficient facts to enable the Court to properly assess jurisdiction and merely relied on media reports alleging that the deceased former President of Zimbabwe and/or members of his family have assets in Malaysia, which should be disregarded. [88] The Defendant's claim concerning the absence of its assets in Malaysia, or the Plaintiffs' supposed failure to demonstrate the presence of the Defendant's assets in Malaysia, does not bear relevance to the Plaintiffs' entitlement to seek the recognition of the Award and the S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 46 Decision on Annulment, along with related reliefs, as outlined in the Originating Summonses. The pursuit of this relief aligns with the provisions of the ICSID Act and Malaysia's responsibilities as a Contracting State under the ICSID Convention. [89] The New Zealand High Court in Sodexo acknowledged that ordinarily it would be unjust for a court to recognise an award against a non-resident respondent without evidence that there was “a real prospect of obtaining a legitimate benefit from the English proceeding.” As the Court cited from Tassaruf Mevduati Sigorta Fonu v Demirel [2007] EWCA Civ 799, [2007] 1 WLR 508, this generally requires the applicant to “ordinarily show [...] that he can reasonably expect the benefit from such a judgment”. Such benefit typically entails demonstrating assets within the jurisdiction against which the award could be enforced. [90] However, the Court found that New Zealand's treaty obligations under the ICSID Convention as implemented locally by the ICSID Act overrode such evidentiary requirements at the recognition phase. Regardless of proven assets, Article 54(1) mandates that “Each Contracting State shall recognise an award rendered pursuant to this Convention as binding.” The New Zealand legislation designates the High Court as the “competent court” to fulfill this mandate. S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 47 [91] The Court reasoned that imposing an asset tracing requirement risks prejudice to the applicant's subsequent attempts to locate and execute against assets, noting “Steps could be taken in an attempt to avoid such execution.” Identification of available assets could thus occur later, when enforcement measures are pursued following recognition. At the recognition phase, the mere “possibility of enforcement” coupled with New Zealand's international commitments provided sufficient basis to recognise the award in line with ICSID framework. [92] Therefore Sodexo v Hungary confirms that notwithstanding inability to prove local assets of a foreign state, recognition of an ICSID award remains proper at minimum to uphold treaty obligations of the recognising state under the expressly mandatory terms of the ICSID Convention. This fulfills the recognising state's commitments as a matter of international law, whereas difficulties with proving executable assets can be addressed subsequently under domestic procedures if and when execution is pursued. [93] I am persuaded by and adopt the reasoning in Sodexo v Hungary. Compliance incentives still arise from recognising awards even absent immediately executable assets under the ICSID framework. And the domestic court is bound to recognise awards under Article 54(1) of the Convention, given force of law locally by legislation like Malaysia’s ICSID Act. Asset identification imperils that scheme. Hence not knowing local asset specifics does not bar recognition here. S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 48 That properly occurs subsequently when execution is attempted. [94] Premature focus on assets also ignores that the place of enforcement can wait if needed until funds materialise. As stated in Schreuer's noted Convention commentary, “Recognition as a preliminary step to execution may be meaningful even if there are no immediate prospects of execution...Once recognised, execution will be quicker and easier should assets become available later.” Recognition puts uncooperative parties on notice, driving disputes towards resolution. [95] In conclusion, the absence of identified seizable Malaysian assets presently does not prevent recognising or enforcing these international arbitral determinations as treaty obligations require. The Defendant's non-compliance to date makes prejudicing later execution attempts improvident. Following Sodexo v Hungary, and respecting the ICSID Convention’s purpose, the Court continues proper recognition processes at this phase without further asset proofs. Double Recovery [96] The position of the Defendant primarily revolves around the issue of double recovery in the context of the Von Pezolds Arbitration and Border Arbitration. The Defendant asserts that allowing the Plaintiffs' claims in both arbitrations would S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 49 result in impermissible double recovery, as noted by the Arbitral Tribunal. This stems from the fact that both the Von Pezolds and Border Companies have been granted similar relief for losses related to the Border Estate in their respective arbitrations. Consequently, enforcing these rights jointly against the Defendant would contravene the Tribunal's directive and established principles of justice and public policy. [97] Furthermore, the Defendant points out that the Plaintiffs have significantly disposed of their interests in the Border Companies before the filing of the annulment application. This disposal, particularly the transfer of the entire 86.49% shareholding in the Border Companies to third parties, effectively strips the Plaintiffs of their shareholder rights to enforce the ICSID awards against the Defendant. In lieu of direct compensation, the Plaintiffs received B Warrants and a nominal sum, which the Defendant argues should be considered adequate compensation. The exact economic value of the B Warrants is deemed irrelevant, with the Defendant emphasising that the Court's focus should not be on the adequacy of compensation but rather its existence. [98] Additionally, the Defendant contends that the Plaintiffs have benefited from continued operations and profits from the Estates since the alleged expropriation. This factor should be considered to prevent the Plaintiffs from receiving a financial windfall if their applications to enforce the Award and the Decision on Annulment are granted. Lastly, the S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 50 Defendant invokes the principle that any monetary judgment must strictly correspond to the actual amount due, taking into account any prior compensations or payments received, to avoid excessive or unjust enrichment of the Plaintiffs. [99] In essence, the Defendant’s position hinges on the principles against double recovery, the adequacy of the compensations already provided to the Plaintiffs, and the need to limit claims to prevent unjust enrichment. [100] I have considered the evidence and submissions from the Plaintiffs and the Defendant and it is my finding that there is no merit to the Defendant’s submissions. I will explain my reasons. [101] There were two separates but related ICSID arbitration proceedings against the Defendant: (i) the arbitration proceedings leading to the Award and the Decision on Annulment in Case No. ARB/10/15 brought by the Von Pezold family already defined as “the Von Pezolds Arbitration”; and (ii) Case No. ARB/10/25 brought by companies the Von Pezolds control regarding the Border Estate, already defined as “the Border Arbitration”. [102] Although the two cases were heard jointly by the same tribunal for efficiency, they remained separate proceedings that resulted in separate awards. However, both sets of claimants were granted the same relief concerning harms to S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 51 the Border Estate in their respective awards. Paragraph 938 of the Award states: “Although, formally, each tribunal has been constituted separately, and has adjudicated the Von Pezold Claimants' and Border Claimants' respective claims separately, it would be artificial to pretend that this Tribunal is unaware of its counterpart Award, or the consequences of it. The Tribunal therefore wishes to make clear that, although the Von Pezold Claimants and the Border Claimants have each been granted the same relief in respect of the Border Estate, these rights cannot both be jointly enforceable. To the extent that one set of Claimants (Von Pezold or Border) enforces its right to restitution of the expropriated Border Properties, restitution will, become legally and materially impossible for the other set of Claimants. Similarly, to the extent that the Border Claimants enforce their right to compensation in respect of the Border Properties (or, for that matter, the Border Liquidation Shortfall and Border Forex Losses), the right to compensation of that amount in the name of the Von Pezold Claimants will become unenforceable as an impermissible double recovery (given that, ultimately, it is the Von Pezold Claimants who control the Border Claimants: see paras. 320-326 above) (see also Bayindir Insaat Turizm Ticaret Ve Sanayi AS v Islamic Republic of Pakistan, ICSID Case No. ARB/03/29, Decision on Jurisdiction, 14 November 2005, paras. 270-272). Such an outcome would, undoubtedly, be the case if the two sets of Claimants had brought proceedings consecutively rather than concurrently.” [103] Paragraph 938 of the Award in the Von Pezolds Arbitration recognises that the two claimant groups (the Plaintffs and the Border companies) cannot both fully enforce the duplicate relief granted for the Border Estate losses. If one group enforces restitution or compensation, that forecloses the same remedies being claimed by the other group. This S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 52 mechanism prevents “double recovery” - getting paid twice for the same loss. [104] The Defendant now argues the Plaintffs are precluded from enforcing relief related to the Border Estate since the Award grants the same remedies to the Border companies in the Border Arbitration. Hence the contention that double recovery would result if the Plaintiffs receive compensation for Border Estate harms through enforcing the Award. [105] The Defendant argues that the Plaintiffs' efforts to enforce the Award and the Decision on Annulment constitute impermissible “double recovery”, allegedly violating paragraph 938 of the Award. This interpretation hinges on the belief that losses from the Border Estate cannot be jointly enforced by the claimants in both the Von Pezolds Arbitration and Border Arbitration, which would result in double recovery. However, this argument is overly restrictive and overlooks the broader context of the Award, which does not explicitly prohibit such recognition proceedings. [106] The Tribunal held as follows in paragraphs 63 and 936 of the Award: “[63], Procedural Order No. 13 dated 23 December 2013 (“PO No. 13”), the Tribunal found that, while the matters in issue in the two proceedings were indeed intertwined, in that they arose from substantially the same events “from a practical perspective and as a matter of principle”, the Von S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 53 Pezold Claiments and the Border Claimants, having filed their claims independently of each other, should also be able to pursue enforcement of any award independently of each other”; ………… “[936], One final word needs to be said about the Tribunal’s quantum findings. As noted at the outset of this Award, the present proceeding in fact comprises one part of a pair of arbitrations, heard together but with separate outcomes (see para. 5 above). There is significant overlap between these Awards, however, because both the Von Pezold Claimants in this proceeding and the Border Claimants in the other proceeding have made claims in respect of the same loss as concerns the Border Estate. Both the Von Pezold Claimants and Border Claimants have sought - and shall be awarded - the same rights to restitution and compensation, or compensation in the alternative, in respect of the losses relating to the Border Estate.” [107] Therefore, double recovery is only a concern in two specific instances: (i) “restitution of the expropriated Border Estate has been obtained by one set of Claimants and the other set of Claimants pursues the same restitution remedy”; and (ii) “compensation is recovered in respect of the Border Estate by one set of the Claimants and the other set of the Claimants nevertheless seeks to pursue the same recovery and ignoring the compensation already recovered.” As of now, neither of these conditions has been met, as there has been no enforcement of restitution or compensation by either set of claimants. [108] Far from any claimant having “enforce[d] its right to restitution of the expropriated Border Properties”, the Defendant has denied the Plaintiffs precisely that. It has S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 54 rendered itself a stranger to the Award, breaching the ICSID Convention requirement that “...Each party shall abide by and comply with the terms of the award...” (Art 53(1)). In these circumstances where no funds or assets have exchanged hands to recompense either claimant set, paragraph 938 by its own terms does not yet activate to bar either from continuing enforcement attempts. [109] The restructuring of the Plaintiffs’ interests in the Border Companies, as per the Framework Agreement dated 28.2.2012 (“the Framework Agreement”), is also crucial to this analysis. There was a divestment of the Plaintiffs' interests in the Border Companies arising from a restructuring of a joint venture that took place on 28.2.2012. This restructuring involved the Høeghs and the Von Pezolds, resulting in a phased transfer of assets into the Joint Venture, with the holding company being Rift Valley Investments Limited (RVI). In this arrangement, the Von Pezolds, through Gusterheim Africa Holdings Limited (GAH), held a 55% stake, and the Høeghs, through HCP Africa Limited (HCPA), held the remaining 45%. [110] Under the Framework Agreement, GAH was to transfer the Plaintiffs’ entire 86.49% shareholding in the Border Companies into the Joint Venture. In return, GAH received a nominal consideration of US$1 and was issued 36,544,153 ‘RVC Warrants’ (B Warrants). These B Warrants were not immediate share capital but conferred rights to exchange each warrant for one share in Rift Valley S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 55 Corporation Limited (RVC) upon the satisfaction of certain conditions related to the Von Pezold Arbitration concerning the Border Estate. [111] The Claimants’ JV Notification dated 4.9.2012 clarified that the nominal consideration of US$1 was a legal formality under English law to make the contract binding, as English law does not inquire into the adequacy of consideration. Therefore, it is common practice to use nominal consideration for binding contracts without executing them as a deed. [112] Crucially, clause 12.11 of the Framework Agreement emphasised that the Von Pezolds retained “all rights of action and claims for reparation and rights to any reparation awarded (including restitution and compensation) in relation to the Von Pezold Arbitration and its subject matter.” This clause ensured that despite the restructuring, the Von Pezolds did not relinquish any rights to compensation due from the Defendant under the Award. [113] The divestment did not entail an assignment of any rights or claims subject to the Von Pezold Arbitration and the Border Companies Arbitration, as clearly notified to the Defendant in the Claimants’ JV Notification. The Høeghs and the Von Pezold Claimants agreed that all rights of action, claims for reparation, and rights to any reparation awarded in the Arbitrations would remain vested with the respective claimants, despite the joint venture. S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 56 [114] Therefore, the divestment and the subsequent joint venture did not result in the Plaintiffs being disentitled to any claim in relation to the Border Companies. The Defendant had the opportunity to raise concerns about the impact of this divestment during the hearing of the Von Pezold Arbitration but chose not to, rendering it inappropriate to do so at a later stage. [115] On the Defendant’s argument that the Plaintiffs' continued operation of the Estates and the purported profits therefrom should be disclosed to prevent an alleged windfall if the current application is granted, the Court finds that this argument, however, does not find a foothold in the procedural history or the legal principles governing this case. As per paragraph 159 of the Award, the Tribunal’s observation is that despite the ongoing operation of the Estates, the Plaintiffs have been effectively reduced to “mere licensees at the will of the Respondent” due to the alleged expropriation under the 2005 Constitutional Amendment. The viability of the remaining properties and assets is therefore compromised, impeding the Plaintiffs’ ability to realise value from these assets through sale. [116] The Defendant's attempt to introduce a set-off from the income derived by the Plaintiffs from the Estates appears to be an afterthought, not raised during the Tribunal proceedings. This omission is significant. Matters not brought before the Tribunal at the appropriate juncture S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 57 cannot be introduced at a later stage, especially when they could have been raised during the arbitration process. The principle of finality in arbitration, as well as the need for procedural efficiency, underpin this stance. [117] Moreover, the Von Pezold Arbitration's Tribunal did not provide the Defendant with an option to compensate the Plaintiffs by allowing them to continue occupying the Estates post-award. The clear terms of paragraph 1020.3 of the Award stipulate that if restitution and restitution damages are not provided within 90 days as detailed, the Defendant is obligated to pay the specified damages. The Award does not contemplate payment through alternative means, such as the set-off proposed by the Defendant. [118] The binding nature of the Award and the Decision on Annulment, as enshrined in Article 53(1) of the ICSID Convention, further solidifies the Plaintiffs' position. The Award, granting various reliefs to the Plaintffs in relation to the expropriation of the Border Estate, is final and binding on the parties. The Convention explicitly states that awards are not subject to appeal or any other remedy except those provided within the Convention itself. Compliance with their terms is not optional but a legal obligation of the parties. [119] In conclusion, the Defendant's argument for a set-off based on the profits from the continued operation of the Estates is neither procedurally nor substantively tenable. The Award's directives are clear and unambiguous, and the Defendant's S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 58 obligations under the Award and the Decision on Annulment and the ICSID Convention are binding. Orders for Service Out of Jurisdiction [120] The Defendant submits that unlike the UK and Singapore, Malaysia lacks specific legislation governing the service of process on a foreign sovereign state. In the UK, this procedure is outlined in Section 12 of the UK State Immunity Act 1978, while Singapore's procedure is detailed in Section 14 of the Singapore State Immunity Act 1979. The Defendant argues that Order 11 rule 1 of the ROC 2012 in Malaysia, which the Plaintiffs relied upon for serving out of jurisdiction, is applicable only to service on a defendant located in a foreign state, not on a foreign state itself. This point is supported by the case of Embassy of Brazil v de Castro Cerqueira [2014] ICR 703, emphasising the purpose of the UK's legislation to ensure states receive notice of proceedings against them. [121] Furthermore, the Defendant refers to the commentary by Fox and Webb in a chapter titled “English Law: The UK State Immunity Act 1978 highlighting the importance of providing foreign states adequate notice and opportunity for diplomatic action. The Defendant contends that the absence of Malaysian legislation in this area means the Court cannot create or expand jurisdiction to serve a sovereign state. This argument is reinforced by the case of Josias Van Zyl and others v Kingdom of Lesotho [2017] SGHC 104, where S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 59 the Singapore High Court emphasised the need for explicit parliamentary authorisation for such service, illustrating caution in exercising jurisdiction over sovereign states. The Defendant suggests that any gaps in Malaysian law regarding this matter should be addressed by Parliament. [122] I do not accept the Plaintiffs’ position. Other jurisdictions having specific legislation does not undermine the authority of the Court to grant the Orders for service out of Jurisdiction. [123] First, the court addresses the Defendant's argument that the absence of Malaysian legislation similar to the UK's or Singapore's State Immunity Act 1979 prevents this Court from permitting service of process on a foreign state. The Plaintiffs’ Leave Application was predicated on Order 11 rule 1(1)(M) of the ROC 2012. It allows for leave to serve a claim out of jurisdiction if the claim is brought “to enforce” “any judgment or arbitral award”. It provides: “(1) Where the writ does not contain any claim for damage, loss of life or personal injury arising out of- (a) a collision between ships; (b) the carrying out of or omission to carry out a manoeuvre in the case of one or more of two or more ships; or (c) non-compliance on the part one or more of two or more ships, with the collision regulations made under section 252 of the Merchant Shipping Ordinance 1952, S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 60 service of a notice of a writ out of the jurisdiction is permissible with the leave of the Court in the following cases: …………………… (M) if the claim is brought to enforce or set aside any judgment or arbitral award.” [124] The Plaintiffs submit that the Originating Summonses seek orders relating to the recognition of an ICSID award, which, under the ICSID Act, may be viewed as if it were a final judgment of a court in each Contracting State, including Malaysia. This interpretation is consistent with the understanding that the word “enforcement” encompasses steps to have a judgment recognised and then subject to execution, as reflected in the New Zealand case of Sodexo v Hungary. [125] The New Zealand High Court's decision in Sodexo v Hungary provides a useful precedent regarding extraterritorial service to enforce an ICSID award. The High Court allowed service out of jurisdiction relying principally on Rule 6.27m of the New Zealand High Court Rules. As the Court explained, this rule generally permits service outside New Zealand “when it is sought to enforce any judgment or arbitral award.” [126] In reaching this conclusion, the High Court held that the ICSID Convention creates binding obligations on member states to recognise ICSID awards, finding that “Each Contracting State shall recognise an award...as binding and S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 61 enforce the pecuniary obligations imposed by that award...as if it were a final judgment of a court in that State.” The Court ruled that New Zealand's ICSID Act “has the force of law in New Zealand in accordance with the provisions of the Act.” [127] Significantly, the New Zealand High Court endorsed a broad concept of “enforcement” encompassing both initial recognition of the award under the adjudicative jurisdiction of domestic courts as well as subsequent execution steps. As the Court reasoned, “Enforcement is a more general term. The concepts of recognition in art 54(1), and execution in arts 54(3) and 55, are the more technical and precise concepts.” While execution may implicate foreign state immunity issues, the court found that Hungary had clearly waived adjudicative immunity under the ICSID Convention framework. Cooke J commented: “[48] I do not accept Hungary’s arguments. As I have found above the word “enforcement” has a more general meaning which encompasses steps to have the judgment recognised, and then subject to execution. That is the meaning also contemplated by s 4 of the ICSID Act. The award here is plainly an arbitral award falling within the terms of r 6.27(2)(m).” [128] The tiered enforcement process under Order 11 rule 1(1)(M) ROC 2012 allowing service out of jurisdiction to “enforce” foreign judgments or arbitral awards draws a similar distinction between initial adjudicative jurisdiction to recognise an award and subsequent execution S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 62 proceedings. As with New Zealand's ICSID Act, Malaysian implementing legislation gives domestic effect to international enforcement obligations assumed through acceding to convention frameworks like ICSID. The Court can exercise its inherent jurisdiction to give effect to the Award and the Decision on Annulment and ensure that Malaysia fulfills its treaty obligations under the ICSID Convention. Therefore, it is possible to resort to to Order 11 rule 1(1)(M) ROC 2012 so as to permit service of the Originating Summonses and the Plaintiffs’ Affidavits in Support on the Defendant since what is at hand is originating process “to enforce or set aside a judgment or an arbitral award”. In this regard, the Originating Summonses are claims that seek to enforce both a judgment and an arbitral award. The Award and the Decision on Annulment are awards given by the arbitrator under the ICSID Act and viewed as a final judgment in each Contracting State (including Malaysia). Order 11 rule 1(1)(M) of the ROC 2012 applies to the enforcement of a judgment as well as an arbitral award, and is not limited to enforcement under the Arbitration Act 2005. [129] Furthermore, the Federal Court of Malaysia in Joseph bin Paulus Lantip & Ors v Unilever Plc [2018] supp MLJ 151 provided guidance on the interpretation of Order 11 of the ROC 2012. The Court held that “the plaintiff need not satisfy the court that he is right. His burden is only to make it ‘sufficiently to appear ... that the case is a proper one for service out of the jurisdiction under this Order’.” This S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 63 precedent supports the position that the Plaintiffs have established a 'good arguable case' for the purposes of obtaining the Orders for Service Out of Jurisdiction. [130] The Defendant's argument, as per Embassy of Brazil v de Castro Cerqueira, that the purpose of the UK's legislation is to ensure states receive notice of proceedings against them, is not disputed. However, this does not preclude the Court from exercising jurisdiction in the absence of similar Malaysian legislation. [131] In sum, the Plaintiffs have satisfactorily established that the Orders for Service Out of Jurisdiction falls within the ambit of Order 11 rule 1(1)(M) of the ROC 2012. The absence of specific Malaysian legislation akin to the UK or Singapore's Acts does not restrict this Court’s discretionary power to grant such an order in cases involving the enforcement of an international arbitral award. Therefore, this Court upholds the Orders for Service Out of Jurisdiction, ensuring that the principles of international law and comity are respected, and Malaysia's obligations under international conventions are fulfilled. Failure to make full and frank disclosure [132] The Defendant argued that the order granting the leave should be set aside because the Plaintiffs have failed to make full and frank disclosure of relevant facts and documents by not producing the relevant German BIT and S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 64 Swiss BIT with particular attention to Article 11(3) of the German BIT and Article 10(6) of the Swiss BIT. The Defendant also argued that even if they had disclosed the BITs, they were also obliged to explain their relevance and materiality to the High Court which they had failed to do. As a result, the High Court was not presented with all the relevant and material facts to decide whether it had jurisdiction to grant leave. [133] The Defendant submitted that full and fair disclosure of all relevant and material facts is necessary in an ex parte application for service of a writ out of jurisdiction, and cited several authorities to support their position. The Defendant also highlighted that failure to disclose such information can lead to material non-disclosure of relevant facts and result in setting aside an ex parte order. The cases of Cantrans Services (1965) Ltd v Clifford [1974] 1 MLJ 141 (Federal Court) and Koperasi Permodalan Felda Malaysia Berhad v Alrawda Investment For Real Estate Development & Projects Management Co Ltd & Anor [2019] 7 MLJ 647 (High Court) were specifically referenced to illustrate these points. [134] The Defendant also submitted that the Plaintiffs have failed to make full and fair disclosure when it did not disclose or identify any assets and/or properties of the Defendant that are allegedly in Malaysia. In particular, the Plaintiffs failed to draw the attention of the Court that the only assets which the Plaintiffs were relying on, were rumours of no probative S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 65 value about assets and/or properties which the deceased former President of Zimbabwe and/or members of his family are alleged to have acquired decades ago in Malaysia. [135] I do not accept the contentions of the Defendant above. In the Plaintiffs’ Application for Leave in Enclosure 6, the Plaintiffs have placed before the Court all the relevant and material facts. The Orders for Service out of Jurisdiction were properly granted by the Court with due consideration of all material facts related to this matter. [136] In reaching a decision on this matter, the Court takes into consideration the Defendant's reference to Lee Teck Chee Anor v Merrill Lynch International Bank Ltd [1998] 4 CLJ 188. In this case, it was established that plaintiffs are required to present relevant and material facts explicitly to the High Court rather than make a general reference. This requirement ensures that the Court is fully informed and can decide based on comprehensive information. [137] Applying this principle to the current case, the Court finds that the Plaintiffs have indeed met their obligation of adequately informing the Court in their application to recognise the Award and Decision on Annulment under the ICSID Act. It was understood that the Defendant was a foreign state and the process of serving the Originating Summonses would be through the Defendant's officials in Zimbabwe. Therefore, the Plaintiffs provided all necessary material facts in their Application for Leave. S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 66 [138] The Court also refers to the case of Cantrans Services 1965 Ltd v Clifford [supra], which underscores the importance of “full and fair” disclosure in ex-parte applications. Though the Plaintiffs’ Application for Leave did not explicitly demand “full and frank disclosure”, the Plaintiffs presented all relevant and material facts for the application. This approach aligns with the judgment in Koperasi Permodalan Felda Malaysia Bhd v Alrawda Investment For Real Estate Development & Projects Management Co Ltd & Anor [2021] 7 MLJ 647. This case highlighted the critical importance for the Court to possess all relevant and material facts to decide whether to grant leave for serving the writ out of jurisdiction. [139] Regarding disclosure, I am satisfied based on the precedents cited that all material and relevant facts were duly placed before this Court. At the leave application stage, the Plaintiffs disclosed the certified copies of the Award and the Decision on Annulment as mandated under the ICSID Convention for recognition and enforcement proceedings. While the Defendant seeks to draw similarities with the decision in Koperasi Permodalan Felda Malaysia Bhd where failure to disclose an arbitration agreement resulted in leave being set aside, those facts are plainly distinguishable. Here, the arbitration proceedings have concluded and there is no dispute regarding the status and validity of the Award and the Decision on Annulment that the Plaintiffs now seek to have recognised pursuant to Malaysian legislation implementing the ICSID framework. S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 67 [140] As such, the only facts that warrant disclosure relate to the Award and the Decision on Annulment themselves and the procedural history confirming its current enforceability, rather than any underlying arrangements between the parties. Those were comprehensively set out in the evidence accompanying the Plaintiffs' leave application. [141] The Plaintiffs’ non-disclosure or failure to identify any assets of the Defendant in Malaysia is irrelevant to the Plaintiffs’ right to seek recognition of the Award and the Decision on Annulment and associated reliefs under the Originating Summonses. The enforcement of the Award and the Decision on Annulment aligns with Malaysia's obligations under the ICSID Convention, and that asset identification is not a prerequisite for award recognition. Therefore, this non- disclosure cannot be regarded as the Plaintiffs’ failure to make full and fair disclosure of material facts for the purposes of obtaining the Orders for Service Out of Jurisdiction. [142] Similarly, there is no failure by the Plaintiffs to make full and frank disclosure of relevant facts and documents in respect of the German BIT and Swiss BIT as the BITs do not limit enforcement to only Germany, Switzerland, and/or Zimbabwe. In gist, as addressed by the Court earlier, the award can be enforced in Malaysia, consistent with the MFN clauses in the BITs and the provisions of the ICSID Convention. S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal 68 Conclusion [143] For the above reason, the Plaintiffs’ Originating Summons in Enclosure 1 is allowed and the Defendant’s application in Enclosure 11 is dismissed. [144] The Defendant is ordered to pay costs the Plaintiffs in the sum of RM60,000.00 with respect to Enclosure 1 and with respect to the dismissal of Enclosure 11 subject to allocator. 27 November 2023 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court NCC1 (Commercial Division) Counsel: For the Plaintiffs: John Mathew with Sabin Ann Thomas (Messrs. Christopher & Lee Ong) For the Defendant: Nitin Nadkarni with Soh Zhen Ning (Messrs. Lee Hishamuddin Allen & Gledhill) S/N Vc34LW2NkWE7ZULk3leJA **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

JA-A71KJ-33-11/2021

PLAINTIF 1. ) MISPAR BIN SOPAH 2. ) RAJASEKAR A/L VELAPPAN DEFENDAN 1. ) Kerajaan Malaysia 2. ) Ketua Polis Negara 3. ) KETUA POLIS NEGERI JOHOR 4. ) MOHD EFIEZ BIN MUSTAFA

Perbicaraan Penuh-Kemalangan Jalan raya-Imbangan Kebarangkalian-Sama ada SD2 sebagai anggota polis boleh berlindung di bawah Akta Polis 1967(Disemak 1988) Akta 344 kerana sedang menjalankan tugas rasmi-Kuantum-Ganti rugi Khas- Seksyen 73A Akta Keterangan 1950- Seksyen 65 Akta Keterangan 1950

27/11/2023

Puan Noorfazlin Binti Hamdan

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=74d3fdfb-e612-44a2-87e9-092e18eee83f&Inline=true

1 DALAM MAHKAMAH MAJISTRET JOHOR BAHRU DALAM NEGERI JOHOR DARUL TA’ZIM GUAMAN SIVIL NO: JA-A71KJ-33-11/2021 ANTARA 1.MISPAR BIN SOPAH [NO.SYARIKAT : JM0146447-P] 2. RAJASEKAR A/L VELAPPAN [ NO.KAD PENGENALAN: 760124025333] ...PLAINTIF-PLAINTIF DAN 1.KERAJAAN MALAYSIA 2.KETUA POLIS NEGARA 3.KETUA POLIS NEGERI JOHOR 4.MOHD EFIEZ BIN MUSTAFA [NO.POLIS: RF173455] ...DEFENDAN-DEFENDAN ALASAN PENGHAKIMAN PERBICARAAN PENUH PRAEFATIO: [1] Ini adalah rayuan oleh Defendan-Defendan yang tidak berpuas hati terhadap keputusan Mahkamah Majistret Sivil (1) Johor Bahru yang diputuskan pada 18.09.2023 di mana Mahkamah telah memutuskan Plaintif- Plaintif telah berjaya membuktikan kes terhadap Defendan-Defendan pada tahap imbangan kebarangkalian di mana liabiliti 10 % ke atas Plaintif-Plaintif dan 90% ke atas Defendan-Defendan.Rayuan ini adalah terhadap 27/11/2023 08:59:53 JA-A71KJ-33-11/2021 Kand. 42 S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 keputusan liabiliti dan sebahagian sahaja keputusan Mahkamah bagi Gantirugi Khas seperti berikut: a)Kos untuk membaiki motorteksi No. HJA 6713 sebanyak RM5,200.61 b)Kos untuk kehilangan penggunaan motorteksi No. HJA 6713 pada kadar RM200 sehari selama 10 hari (RM200 x 10 hari) sebanyak RM2,000.00 [2] Seramai (8) orang saksi telah dipanggil memberikan keterangan iaitu: (i) SP1- Sjn. Muhd Hafizuddin bin Zakaria (Pegawai Penyiasat kes) (ii) SP2- Plaintif Pertama (iii) SP3- Sugindiran a/l R.Samthirabalam (Adjuster) (iv) SP4- Ng See Yong(Pemilik Bengkel) (v) SP5- Plaintif Kedua (vi) SD1- Ahmad Zaki Bin Salikin (Jurutera Mekanikal) (vii) SD2- Defendan Keempat (viii)SD3- Edward Randy Anak William-Polis Ronda FAKTA KES: A. VERSI PLAINTIF [3] Pada 16.02.2019 jam lebih kurang 8.55 malam, Plaintif Kedua (SP5) memandu motorteksi nombor pendaftaran HJA 6713 yang dimiliki oleh S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 Plaintif Pertama (SP2) dari City Square Mall menghala ke Taman Desa,Johor Bahru. [4] Pada masa kemalangan, SP5 sedang memandu di jalan raya KM8 Jalan Johor Bahru-Air Hitam di mana tiba-tiba motorsikal peronda polis WYC 5162 yang ditunggangi oleh SD2 telah menunggang secara melawan arus di jalan raya tersebut dan telah melanggar motorteksi SP5. Akibat perlanggaran tersebut menyebabkan motorteksi SP5 mengalami kerosakan belah hadapan kanan dan Plaintif-Plaintif menuntut Ganti rugi Khas daripada Defendan-Defendan atas kecuaian tersebut. B.VERSI DEFENDAN [5] Pada hari kejadian, Defendan Keempat (SD2) sedang bertugas dengan menunggang motorsikal peronda polis WYC 5162 bersama-sama Kpl. 171561 Edward Randy (SD3) dan Kpl. 173240 Mohd Suffian Rajeli yang menaiki motorsikal masing-masing. [6] SD2 mengatakan pada masa tersebut sedang mengejar seorang suspek lelaki Melayu yang mana suspek tersebut telah membuat pusingan U melawan arus menghala ke bandar raya menyebabkan SD2 dan rakan setugas lain mengekori suspek dengan melawan arus di jalan raya tersebut. [7] SD2 mengatakan telah membuka lampu beacon dan siren sebelum bergesel bahagian tepi kanan Motorteksi SP5 dan bahagian belakang tepi kanan box Motorsikal SD2. Menurut SD2 lagi, SP5 dalam keadaan panik telah menghimpit motorsikal SD2 lebih ke sebelah kanan divider yang mana telah mengakibatkan berlakunya pergeselan tersebut.SD2 kemudiannya S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 telah berlalu pergi untuk mengejar suspek lelaki Melayu tersebut dan berjaya membuat tangkapan bersama-sama rakan setugasnya SD3. PRINSIP UNDANG-UNDANG: [8] Adalah menjadi prinsip undang-undang mantap bahawa onus probandi adalah pada tahap imbangan kebarangkalian di pihak Plaintif selaras seksyen 101 Akta Keterangan 1950 yang memperuntukkan seperti berikut: 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. [9] Prinsip ini juga adalah dinyatakan di dalam kes Wong Thin Yit v Mohamad Ali[1971] 2 MLJ 175, Mahkamah Persekutuan memutuskan: “In a negligence action, the onus of proof rests wholly on the plaintiff, whether or not the defendant gives evidence and the plaintiff cannot succeed without proof of the defendant’s negligence”. [10] Dalam membuat penilaian kes ini, Mahkamah juga berpandukan kepada keputusan Mahkamah Rayuan oleh Abdul Malik Ishak JCA dalam kes Mackt Logistics (M) Sdn Bhd v Malaysian Airline System Berhad [2014] 5 CLJ 851 seperti berikut:- S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 “The trial judge as the trier of fact must assess, weigh and set out the reasons for accepting or rejecting the whole or any part of the evidence led by the parties. In deciding to accept or to reject the evidence of a witness, the trial judge must apply the correct criteria, namely: (a) take into account the motive that a witness may arbor while giving evidence; (b) consider the contemporaneous documents and test it against the oral evidence of a witness; (c ) view the evidence of a witness against the probabilities of the case; and (d) conduct a critical analysis of the witness evidence.” Oleh yang demikian, berikut penilaian Mahkamah ke atas kes ini. PENILAIAN MAHKAMAH (i)ISU LIABILITI (a) Sama ada keterangan Plaintif-Plaintif disokong keterangan senyap yang lain? [11] Keterangan SP5 menyatakan pada masa kejadian, terdapat (3) buah motorsikal yang telah melawan arus. (2) buah motorsikal pertama telah berjaya melepasi motorteksi SP5 tanpa berlaku sebarang perlanggaran manakala motorsikal SD2 adalah motorsikal yang ketiga dan telah melanggar motorteksi SP5 di bahagian hadapan sebelah kanan. S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 [12] Versi Defendan menyatakan ketika kejadian, SP5 dalam keadaan panik telah menghimpit motorsikal SD2 lebih ke sebelah kanan divider yang mana telah mengakibatkan berlakunya pergeselan. [13] Berdasarkan kedua-dua keterangan ini, adalah menjadi tugas Mahkamah meneliti keterangan-keterangan lain yang dapat menunjukkan kejadian yang lebih berkemungkinan. Pertamanya, Mahkamah merujuk kepada Ikatan Pliding seperti berikut: PENYATAAN TUNTUTAN PEMBELAAN 9.Defendan Keempat terus melanggar motorteksi yang dipandu oleh Plaintif Kedua di bahagian hadapan sebelah kanan ketika Defendan Keempat mengejar lelaki tersebut.Akibat daripada perlanggaran itu motorteksi Plaintif Pertama mengalami kerosakan di bahagian kanan hadapan motorteksi tersebut. f. Apabila tiba di KM8 Jalan Johor Bahru-Air Hitam,kotak kanan motorsikal Defendan Keempat iaitu WYC 5162 telah bergesel dengan motorteksi milik Plaintif Pertama HJA 6713.Defendan Keempat tidak memberhentikan motorsikalnya dan terus mengejar suspek…” [14] Mahkamah mendapati keterangan SP5 tersebut ada diplidkan di dalam Penyataan Tuntutan Plaintif. Berbanding dengan keterangan SD2 tersebut tidak ada diplidkan dalam pembelaannya tentang fakta SP5 dalam keadaan panik telah menghimpit lebih ke sebelah kanan divider sehingga pergeselan berlaku. Apa yang dinyatakan hanyalah setakat berlaku pergeselan antara keduanya. S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 [15] Prinsip undang-undang mantap berhubung fakta yang gagal diplidkan sepertimana ditekankan oleh Mahkamah Tinggi Johor Bahru oleh YA Shamsulbahri Haji Ibrahim JC (pada masa itu) dalam kes Telekom Malaysia Berhad v Arun Ravisanderah & Anor[2022] 1 LNS 695: [17] Furthermore the version that the Plaintiff's motorcycle rear tyre hit a pothole was never pleaded by the Plaintiff. It is trite that parties are bound by their pleadings and the court is not entitled to decide the case on a matter not pleaded (see Giga Engineering & Construction Sdn Bhd v. Yip Chee Seng & Sons Sdn Bhd & Anor [2015] 9 CLJ 537 and Menah Sulong v. Lim Soo & Anor [1983] 1 CLJ 26; [1983] CLJ (Rep) 263)). The parties are also barred from adducing evidence of unpleaded facts during trial (see Asia Hotel Sdn Bhd v. Malayan Insurance (M) Sdn Bhd [1992] 2 CLJ 1185; [1992] 2 CLJ (Rep) 121; Lembaga Pemegang Amanah Yayasan Sabah & Anor v. Datuk Syed Kecik Syed Mohamad & Anor and Other Appeals [2000] 3 CLJ 797; [2000] 3 MLJ 328 CA). [16] Begitu juga dalam kes Bruce v Odhams Press Ltd [1936] 1 KB 697, Scott LJ said: “The word 'material' means necessary for the purpose of formulating a complete cause of action, and if any one 'material' fact is omitted, the statement of claim is bad”. [17] Pada pendapat Mahkamah keterangan SD2 tentang keadaan SP5 panik dan telah menghimpit ke sebelah kanan divider menyebabkan pergeselan berlaku adalah fakta yang material kepada pembelaan Defendan-Defendan. Namun,malangnya ia gagal diplidkan menjadikan S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 keterangan SD2 tersebut hanyalah bersifat difikirkan kemudian dan rekaan semata-mata. [18] Keduanya, Mahkamah merujuk kepada Repot Polis SP5 bertarikh 16.02.2019 yang mempunyai versi yang konsisten dengan keterangan SP5 seperti berikut: “SEMASA SAYA JALAN TERUS DI LORONG KANAN TIBA-TIBA SEBUAH MOTORSIKAL NO TIDAK PASTI DATANG DARI ARAH HADAPAN DAN MELANGGAR BAHAGIAN DEPAN KANAN M/KAR SAYA..” Begitu juga dalam Repot Polis Kedua SP5 menyatakan perkataan dilanggar sepertimana keterangannya di Mahkamah. Manakala Repot Polis SD2 (Rujuk Ikatan B m/s 31) berbunyi: “PADA KETIKA ITU,APABILA SAYA SAMPAI DI KM8 JALAN JOHOR BAHRU- AIR HITAM,KOTAK KANAN MOTORSIKAL SAYA TELAH BERGESEL DENGAN SEBUAH M/TEKSI NOMBOR HJA 6713.” [19] Keterangan SD2 yang mengatakan SP5 dalam keadaan panik dan menghimpit lebih ke sebelah kanan divider sehingga pergeselan berlaku juga tidak ada dinyatakan di dalam repot polisnya. Apabila dibandingkan Repot-repot polis SP5 dan SD2 amat jelas keterangan SP5 adalah lebih konsisten berbanding pembelaan SD2 tersebut. [20] Ketiganya, Mahkamah merujuk pula keterangan saksi-saksi tentang kerosakan motorteksi SP5 dan motorsikal SD2 sepertimana berikut: (i)SP1-Pegawai Penyiasat Kes: “SP 1 : Bagi motorteksi kerosakan adalah cermin sisi kanan, pintu kanan depan dan belakang dan lain-lain kerosakan tidak pasti. S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 Peg. Plaintif : Bagi motorsikal? SP 1 : Motorsikal besi..aaa kotak sebelah kanan dengan box sekali.” (Rujuk NK m/s 41) SP1 sewaktu diperiksa semula: “Peg. Plaintif : Pemandu. Ok, sila rujuk mukasurat 29 dan 30 Ikatan B, apakah kerosakan yang dinyatakan oleh pemandu motorteksi tersebut? SP 1 : Kerosakan adalah cermin sisi kanan, pintu kanan tepi depan belakang dan lain-lain kerosakan tidak pasti. Peg. Plaintif : Bahagian depan motorkar? Betul di mukasurat 29 dan 30? SP 1 : Dalam mukasurat 29 menyatakan kerosakan.” (ii)SD1 (Rujuk NK m/s 155) “Peg. Plaintif : Saya cadangkan kerosakan pada pintu kanan menurut gambar- gambar tersebut adalah akibat impact yang kuat. Setuju? SD 1 : Impact sisi yang kuat” (Rujuk NK m/s 162) “Peg. Def 2 : Peguam juga cadangkan bahawa kerosakan di bahagian pintu hadapan belah kanan disebabkan impact yang kuat dan En. Zaki nyatakan impact sisi yang kuat. So boleh jelaskan tak? SD 1 : Saya meneliti kepada gambar dalam rekod kami yang mana gambar tersebut menunjukkan motorsikal WYC 5612 ni dalam keadaan masih elok dan hanya kotak sebelah kanan yang pecah sebelah depan yang menunjukkan bahawa berlaku perlanggaran sisi S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 antara motor dan teksi pada haluan yang bertentangan. Kerana itu kalau dilihat impactnya kita boleh lihat kerosakan bermula daripada pintu hadapan bawa terus ke belakang di mukasurat 24 jadi itulah saya katakan kenapa saya beranggapan ini melibatkan perlanggaran sisi melibatkan 2 hala yang bertentangan kerana kalau melibatkan sisi lain impactnya tak akan nampak macam kerosakan tersebut.” Keterangan kedua-dua saksi ini menunjukkan telah berlakunya satu perlanggaran dan bukannya sebab bergesel berdasarkan kerosakan pada kedua-dua kenderaan tersebut. [21] Keempatnya, Mahkamah merujuk pula kepada gambar-gambar kerosakan motorteksi SP5 yang menunjukkan kerosakan yang agak teruk di sisi kanan motorteksinya kerana cermin pintu kanan pecah, cermin sisi kanan motorteksi patah termasuk bahagian kanan motorteksi SP5 kemek. Impak yang berlaku sememangnya adalah kuat dan tidak munasabah hanya diakibatkan oleh geselan semata-mata. [22] Kelimanya, Mahkamah merujuk kepada kos untuk membaiki motorteksi SP5 yang mana ianya mencecah RM2,170-00 berbanding kos membaiki motorsikal SD2 sekitar RM1,000-00. Akibat kerosakan yang teruk menyebabkan kos pembaikpulihan motorteksi SP5 adalah tinggi. [23] Oleh yang demikian, berdasarkan keterangan-keterangan di atas, Mahkamah berpuas hati kejadian kemalangan tersebut bukanlah disebabkan oleh pergeselan sepertimana dihujahkan pihak Defendan- Defendan. Pada hemah Mahkamah, jika hanya berlaku pergeselan sahaja,maka sudah pasti hanya meninggalkan kesan-kesan calar atau kemek sedikit sahaja. Akan tetapi kemalangan ini lebih menunjukkan S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 berlakunya satu perlanggaran yang dilakukan oleh SD2 terhadap motorteksi SP5 tersebut. Malah, keterangan pihak Plaintif adalah lebih konsisten dan disokong keterangan senyap yang lain berbanding keterangan pihak Defendan sepertimana dinyatakan di atas. Oleh yang demikian, Mahkamah berpuas hati pihak Plaintif telah berjaya membuktikan kecuaian adalah berpunca perlanggaran motorsikal SD2 ke atas motorteksi SP5 tersebut. [24] Persoalan seterusnya, adakah pihak Defendan bertanggungan 100%? Mahkamah merujuk kepada keterangan SP5 yang mengesahkan pada masa tersebut, SD2 ada membuka lampu beacon tetapi tiada bunyi siren atau horn diberikan oleh SD2. Jika ada siren, menurut SP5 boleh bergerak ke tepi lagi untuk memberikan laluan. [25] Bagi isu ini juga, Pihak Defendan ada berhujah siren ada dipasang oleh SD2 tetapi tidak didengari oleh SP5 kerana masalah pendengaran. Namun, hujahan tersebut ditolak oleh Mahkamah kerana itu hanya bersifat statements from the bar semata-mata kerana fakta SP5 seorang yang pekak/ada masalah pendengaran tidak pernah disoal dan dicabar kepada SP5 sepanjang perbicaraan. [26] Pada hemah Mahkamah, SP5 sebenarnya masih boleh memberikan ruang dan laluan kepada SD2 pada masa itu jika ada amaran dikeluarkan oleh SD2 kepada SP5. Berdasarkan keterangan SP5 juga masih ada ruang jarak (3) kaki antara suspek Melayu dengan SD2 yang mana (2) motorsikal pertama termasuk suspek Melayu tersebut boleh melepasi motorteksi SP5 kecuali motorsikal SD2. Oleh yang demikian, Mahkamah berpendapat Plaintif telah sumbang cuai sebanyak 10% atas kecuaiannya yang tidak memberikan laluan/kerjasama yang lebih baik kepada motorsikal SD2. SP5 juga telah nampak situasi motorsikal SD2 yang telah melawan arus tersebut S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 selepas suspek melayu melepasinya. Oleh itu, liabiliti Defendan-Defendan diputuskan sebanyak 90%. (b)Sama ada wujudnya pergeselan motorsikal SD2 dengan kenderaan lain pada kejadian? [27] Mahkamah mendapati wujudnya percanggahan keterangan SD2 dengan saksi pembelaan yang lain berhubung fakta adanya pergeselan dengan kenderaan lain masa itu. SD2 menafikan sebarang perlanggaran dan atau pergeselan dengan beberapa buah kenderaan yang lain sewaktu mengejar suspek lelaki Melayu itu [28] Akan tetapi, berbeza keterangan SD3 yang mengesahkan berlaku beberapa pergeselan motorsikal SD2 dengan kenderaan-kenderaan lain seperti berikut: (Rujuk NK m/s 219-220) Peg. Plaintif : Ini tentang keterangan kamu tadi tentang beberapa buah kenderaan tu. Kalau kamu rujuk muaksurat 32 tadi, baris 8 & 9 “kami terus mengejarnya dan menyebabkan berlaku bergesel dengan beberapa buah kenderaan akibat elak merempuh suspek. Betul? SD 3 : Ya betul. Peg. Plaintif : Tadi kami kata beberapa buah kenderaan tu merujuk kepada Koperal Efiez bergesel dengan motorteksi tersebut. Betul? SD 3 : Ya Puan. Peg. Plaintif : Jadi kenapa letak beberapa buah kenderaan? SD 3 : Di mana Koperal Efiez cuba elak kenderaan lain ada pergeselan sedikit dengan kenderaan yang lain. S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 Peg. Plaintif : Jadi ada pergeselan dengan dengan kenderaan lain jugalah. SD 3 : Ya. Peg. Plaintif : Bukan hanya dengan teksi. Betul? SD 3 : Ya Puan. … Peg. Plaintif : Kamu boleh confirm lah bukan hanya teksi tu sahaja ada kenderaan lain juga. Betul? SD 3 : Ya Puan”. [29] Mahkamah mendapati keterangan SD3 tersebut adalah konsisten dalam Repot Polis yang dibuat oleh SD3. Jika benar penafian SD2, maka mengapakah SD3 boleh memberikan keterangan sebegitu? Oleh itu, pada hemah Mahkamah adalah lebih selamat untuk Mahkamah menilai keterangan SD2 tersebut dengan bergantung kepada keterangan bebas yang lain secara in toto. (c) Sama ada SD2 sebagai anggota polis boleh berlindung di bawah Akta Polis 1967(Disemak 1988) Akta 344 kerana sedang menjalankan tugas masa kejadian? (d) Sama ada SD2 telah gagal mengambil langkah berhati-hati pada masa kejadian? [30] Kedua-dua isu ini digabungkan kerana berkaitan. Pihak Defendan berhujah sebagai seorang anggota polis, SD2 adalah dianggap sentiasa S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 berada dalam tugas rasmi dan sekiranya mempunyai keperluan bertindak pada situasi-situasi tertentu, anggota polis tersebut hendaklah bertindak sewajarnya mengikut keperluan serta tuntutan situasi tersebut tanpa perlu mendapatkan arahan daripada anggota atasan. [31] Sebagai sokongan, Puan Peguam Persekutuan terpelajar merujuk seksyen 19, seksyen 20, seksyen 21 Akta Polis 1967 dan Rule 9 Road Traffic Rules 1959 Ln 166/1959 serta berhujah SD2 telah melaksanakan serta memenuhi peruntukan undang-undang tersebut di mana SD2 sedang dalam tugas rasmi dan telah memberikan amaran kepada pengguna jalan raya yang lain tentang kehadiran Motorsikal SD2 di atas jalan raya tersebut.SD2 telahpun membunyikan siren dan lampu beacon supaya pengguna jalan raya waspada dan memberikan laluan ketika itu.Oleh itu,pengecualian liabiliti hendaklah diberikan kepada Defendan-Defendan. [32] Dalam mempertimbang isu ini, Mahkamah meneliti wujudnya fakta kejar-mengejar antara suspek lelaki Melayu dan pasukan ronda SD2 pada masa material. Ini disahkan oleh SP1, SD3 dan Repot-Repot Polis di mana SD2 yang mana dalam usaha mengejar suspek untuk memastikan suspek boleh ditangkap adalah terjumlah dalam maksud seksyen 19, seksyen 20 dan seksyen 21 Akta Polis 1967. [33] Namun, adakah tindakan SD2 tersebut terjumlah bagi maksud hak keutamaan jalan di bawah Rule 9 Road Traffic Rules 1959 Ln 166/1959? Berikut peraturan berkaitan untuk memudahkan rujukan: “(1) Any ambulance, fire engine, customs vehicle or police vehicle, prison vehicle shall when on urgent duty have the right of way over all other traffic if it makes known its approach by means of sounding of a distinctive S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 siren,bell or two-tone horn: Provided that such priority shall not be held to relieve the driver of such vehicle of his liability under the civil law or the provisions of any law relating to dangerous, careless or inconsiderate driving. (2) All other traffic shall on being warned as aforesaid of the approach of any ambulance, fire engine, customs vehicle or police vehicle, prison vehicle draw in as close as possible to the left hand side of the road and all vehicles shall then be brought to a standstill to allow a clear passage for such ambulance, fire engine, police vehicle or prison vehicle.” [34] Jika dikaitkan dengan kes semasa, peraturan tersebut jelas menunjukkan hak keutamaan jalan hendaklah diberikan kepada SD2 dengan membunyikan siren/hon dengan syarat pemanduan SD2 tersebut bukanlah bersifat berbahaya, cuai atau tidak bertimbang rasa untuk melepaskan dirinya daripada sebarang tindakan undang-undang. In casu, Mahkamah lihat pemanduan SD2 bukan sahaja dibuat secara melawan arus dan berbahaya, malah tidak ada sebarang isyarat atau komunikasi tambahan seperti signal tangan/arahan lisan diberikan kepada SP5 supaya dapat memberikan laluan yang lebih baik untuk dirinya melepasi motorteksi SP5 tersebut. [35] Pada hemah Mahkamah, dalam situasi itu tidak cukup untuk SD2 hanya menyalakan lampu beacon dan/ atau siren semata-mata dan berharap agar pengguna jalan raya lain seperti SP5 memberikan laluan. Akan tetapi, SD2 sepatutnya lebih bertindak munasabah, lebih prihatin dan ambil peduli pengguna jalan raya lain dengan memberikan isyarat tambahan kepada SP5 supaya dapat memberikan ruang yang lebih baik kepadanya.Jika alasan hendak cepat dan tidak sempat kerana sedang S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 mengejar suspek menunjukkan tiada pertimbangan yang munasabah daripada SD2 dan itu juga merupakan satu tindakan cuai di pihaknya. [36] Sebagai anggota unit peronda juga, SD2 sepatutnya sudah cekap dan boleh menganggarkan keluasan yang diperlukan oleh motorsikalnya bersama peti box untuk melepasi sesuatu lorong/jalan yang agak sempit. Akan tetapi Mahkamah lihat SD2 gagal menggunakan budi bicara dan pertimbangan dirinya dalam situasi genting itu. SD2 telah tetap meneruskan laluannya dengan melanggar motorteksi SP5 sehingga menyebabkan kerosakan yang teruk di bahagian sebelah kanan dan terus beredar pergi. [37] Pihak Defendan berhujah SP5 berada dalam keadaan kelam kabut dan terus berhenti “on the spot”, menunjukkan wujud kemungkinan untuk Motorteksi SP5 telah berada dalam keadaan kedudukan yang lebih ke sebelah kanan sebagaimana keterangan yang diberikan oleh SD2. Akan tetapi, Mahkamah mendapati terdapatnya keterangan sebelum SD2 melanggar motorteksi SP5 terdapat 2 lagi motorsikal yang melalui motorteksi SP5 tanpa sebarang masalah. Keterangan SP5 seperti berikut: Peg. Def 2 : En. Raja jarak berapa meter agak-agak bila En. Raja Nampak motorsikal polis tu? SP 5 : Saya lalu jambatan yang Danga Bay lepas jambatan kan saya lalu turun saja tiba-tiba 3 motor sudah ada. Peg. Def 2 : Ada berapa motor? SP 5 : Lawan arus macam tu. Peg. Def 2 : Dekat bahagian mana En. Raja? SP 5 : Kanan. S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 Peg. Def 2 : Kanan sebelah divider ke? SP 5 : Saya teksi jalan macam ni (isyarat tangan) tiga-tiga motor lalu sebelah ni (tunjuk isyarat tangan) Motor pertama lepas, motor kedua pun lepas juga no. 3 saja dia langgar saya.” Oleh itu, hujahan pihak Defendan tersebut adalah tidak bermerit. [38] Selain itu, bukankah tugas SD2 juga untuk mengawal ketenteraman awam di atas jalan raya menurut seksyen 19, seksyen 20, seksyen 21 Akta Polis 1967? Sepertimana keterangan SD3 yang mengakui tindakan SD2 adalah berbahaya dan boleh untuk tidak melawan arus demi keselamatan awam seperti berikut (Rujuk NK m/s 224) Peg. Plaintif : Tadi kata u-turn dan tempat kemalangan sejauh 7km, so saya cadangkan Koperal efiez ada banyak ruang untuk ambil langkah berhati-hati untuk mengelakkan kemalangan.Setuju? SD 3 : Setuju. Peg. Plaintif : Setuju tak kamu sepatutnya berhenti motorsikal apabila motor suspek tiba-tiba buat u-turn dan kamu tidak tidak menunggang lawan arus demi keselamatan orang awam? Setuju tak? SD 3 : Setuju”. [39] Begitu juga keterangan SP1 sebagai pegawai penyiasat yang bersetuju bahawa seorang anggota polis seperti SD2 turut bertanggungjawab menjaga keselamatan orang awam lain seperti SP5.Keterangannya seperti berikut (Rujuk NK m/s 32-33) “Peg. Plaintif : Ia juga adalah tugas polis untuk menjaga keselamatan orang awam seperti yang dicadangkan oleh rakan bijaksana saya. S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 SP 1 : Ya. Peg. Plaintif : Jadi pemandu motorteksi tersebut juga adalah orang awam betul? SP 1 : Ya. Peg. Plaintif : Jadi tugas polis juga adalah terhadap pemandu motorkar tersebut juga. SP 1 : Ya”. [40] Namun,apa yang berlaku seolah-olah SD2 tidak perlu berfikir keselamatan pengguna jalan lain/ orang awam lain asalkan dapat menangkap suspek Melayu tersebut sedangkan matlamat tidak menghalalkan cara. [41] Tindakan cuai SD2 juga dapat dilihat daripada SD3 seperti berikut (Rujuk NK m/s 229) Peg. Defendan: Peguam juga ada cadangkan Koperal Efiez tidak menunggang dengan berhati-hati dan En. Edward kata setuju. Kenapa jawab setuju? SD 3 : Dimana kalau lebih berhati-hati tidak berlaku sebarang kemalangan”. Malah, ketika disoal semula tentang kerosakan SD3 turut bersetuju kerosakan tersebut bukanlah akibat pergeselan tetapi dilanggar seperti berikut: “…peguam cadangkan ini bukan saja akibat pergeseran tetapi perlanggaran dan En. Edward jawab setuju. Kenapa jawab setuju? S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 SD 3 : Dimana kerosakan itu agak teruk”. [42] Walaupun pihak Defendan berhujah SD3 tidak nampak bagaimana kemalangan boleh berlaku, namun SD3 sendiri mengesahkan SD2 ada menceritakan kejadian kemalangan itu sewaktu di balai polis dan SD3 turut terlibat dalam rondaan dan tangkapan suspek lelaki Melayu tersebut pada hari kejadian. Oleh itu, keterangan SD3 ini tidak wajar diketepikan begitu sahaja. [43] Malah, menurut SD3 telah berlaku pergeselan motorsikal SD2 dengan kenderaan-kenderaan lain sewaktu kejar-mengejar berlaku menunjukkan kecuaian demi kecuaian SD2 ketika menjalankan tugas pada hari kejadian seperti berikut: (Rujuk NK m/s 219-220) Peg. Plaintif : Ini tentang keterangan kamu tadi tentang beberapa buah kenderaan tu. Kalau kamu rujuk muaksurat 32 tadi, baris 8 & 9 “kami terus mengejarnya dan menyebabkan berlaku bergesel dengan beberapa buah kenderaan akibat elak merempuh suspek. Betul? SD 3 : Ya betul. Peg. Plaintif : Tadi kami kata beberapa buah kenderaan tu merujuk kepada Koperal Efiez bergesel dengan motorteksi tersebut. Betul? SD 3 : Ya Puan. Peg. Plaintif : Jadi kenapa letak beberapa buah kenderaan? SD 3 : Di mana Koperal Efiez cuba elak kenderaan lain ada pergeselan sedikit dengan kenderaan yang lain. Peg. Plaintif : Jadi ada pergeselan dengan dengan kenderaan lain jugalah. S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 SD 3 : Ya. Peg. Plaintif : Bukan hanya dengan teksi. Betul? SD 3 : Ya Puan. … Peg. Plaintif : Kamu boleh confirm lah bukan hanya teksi tu sahaja ada kenderaan lain juga. Betul? SD 3 : Ya Puan”. [44] Walaupun pihak Defendan mencabar kepada SP1 sebagai pegawai penyiasat bahawa tiada sebarang laporan polis atau aduan daripada kenderaan lain dibuat untuk mengesahkan wujudnya pergeselan ke atas beberapa buah kenderaan yang lain oleh SD2, namun keterangan ini adalah satu keterangan daripada SD3 yang tiada motif untuk mereka-reka cerita perkara itu dan memasukkannya dalam Repot Polis SD3. Saksi ini merupakan saksi pihak Defendan juga dan pihak Defendan tidak boleh menolak keterangan saksinya sendiri. [45] Oleh yang demikian, Mahkamah berpendapat SD2 adalah bertanggungan dalam tuntutan sivil ini kerana telah menunggang dengan cuai, berbahaya dan tidak bertimbang rasa bagi maksud peraturan tersebut dan tidak boleh berlindung di bawah Akta Polis 1967 dan Traffic Rules 1959 Ln 166/1959. Seterusnya, Defendan Pertama hingga Defendan Ketiga diputuskan adalah bertanggungjawab secara vikarius terhadap kecuaian Defendan Keempat. S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 (d)Sama ada SD2 gagal mematuhi arahan SOP PDRM untuk melaporkan kejadian dalam masa 24 jam? [46] Puan Peguam Persekutuan terpelajar berhujah kegagalan SD2 membuat repot polis dalam masa 24 jam tidak fatal dengan bergantung kepada kes Mohammad Zulfahmy bin Musa v Perumal a/l Periyaraju & Satu lagi [2021] MLJU 2286. Menurut pihak Defendan lagi, tindakan SD2 membuat repot polis selepas 17 hari dari tarikh kejadian adalah untuk menunjukkan fakta SD2 bersama-sama dengan SD3 di Balai Polis IPD JBU sewaktu perbincangan dengan SP5 untuk tidak membuat repot polis bersama-sama. Akan tetapi fakta tentang wujudnya perbincangan untuk selesaikan di luar dinafikan oleh SP5 seperti berikut: “Peg. Def 2 : Saya cadangkan sebenarnya En. Raja bercadang ‘plan’ you nak settlekan kes ni sendiri tak nak libatkan polis ke atau siapa- siapa, setuju tak? SP 5 : Macam mana? Peg. Def 2 : Maksudnya you nak settlekan kes ni sendiri tak ada nak libatkan polis ke atau apa-apa. Setuju tak? SP 5 : Tak.” [47] Peguamcara Plaintif seterusnya telah mencabar isu kelewatan SD2 membuat repot polis antaranya kepada saksi SD3 seperti berikut (Rujuk NK m/s 220-221) “Peg. Plaintif : Kamu tahu polis ada SOP untuk membuat laporan polis tentang macammana kemalangan berlaku dalam tempoh 24 jam daripada tarikh kemalangan. Betul? S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 SD 3 : Betul Peg. Plaintif : Setuju Koperal Efiez gagal mengikut SOP tersebut? SD 3 : Setuju.” [48] Walaupun SP5 menafikan wujudnya kejadian tersebut, namun keterangan SD2 disokong oleh SD3 yang menyatakan wujudnya perbincangan untuk selesaikan kes yang dihadiri inter alia SP5, SD2, SD3. Mahkamah juga meneliti keterangan SD2 yang telahpun mengakui akan kesalahannya yang tidak menurut SOP kemalangan yang ditetapkan oleh PDRM. “Peg. Defendan : Peguam ada cadangkan Tindakan En. Efiez untuk dengar permintaan pemandu teksi adalah salah dan En. Efiez setuju bahawa Tindakan itu adalah salah. En.Efiez boleh jelaskan? SD 2 : Salah sebab saya mendengar daripada dia sepatutnya saya mengikut undang-undang terlebih dahulu tetapi saya memilih untuk memberi budi bicara saya kepada pemandu motorteksi.” [49] Sebagai anggota polis adalah menjadi tanggungjawab untuk melaporkan kepada pihak berautoriti atas kejadian yang berlaku terutama ianya berlaku ketika dalam menjalankan tugas rasmi. Oleh yang demikian, Mahkamah memutuskan wujudnya kecuaian di pihak SD2 yang gagal mematuhi SOP PDRM untuk melaporkan kejadian dalam masa 24 jam. (ii) ISU KUANTUM (ATAS DASAR 100%) Ganti rugi Khas [50] Adalah menjadi undang-undang mantap bahawa pihak Plaintif perlu membuktikan dengan ketat sebarang ganti rugi khas yang dituntut dan S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 bukan sekadar meletakkan jumlah kerugian yang dialami dan menyerahkan kepada Mahkamah untuk mengaward jumlah yang dirasai sesuai dan patut. (Rujuk Ong Ah Long v. Dr S. Underwood [1983] 2 MLJ 324).Oleh itu, berikut kos yang dipertikaikan. (a)Kos membaiki motorteksi tersebut berjumlah RM5,200-61 [51] Puan Peguam Persekutuan yang terpelajar telah menimbulkan isu wujudnya percanggahan tarikh pada tarikh pembaikan motorteksi tersebut kerana (2) resit P8A & P8B yang masing-masing bertarikh 03.04.2019 dan 24.04.2019 dengan Borang Kerosakan JKR IDD10 bertarikh 07.05.2019 menunjukkan resit P8A & P8B direka-reka kerana tiada sebarang pembaikan dibuat sehingga motorteksi dihantar ke JKR untuk pemeriksaan pada 07.05.2019.Pihak Defendan juga berhujah pihak Plaintif gagal menunjukkan gambar-gambar pembaikan motorteksi SP2 tersebut untuk menyokong keterangan berhubung kos pembaikan. [52] Sebelum isu ini dihuraikan lebih lanjut, adalah satu keperluan untuk Mahkamah memutuskan terlebih dahulu status Borang Kerosakan JKR IDD10 sama ada wajar ditandakan sebagai ekshibit ataupun sebaliknya. Pihak Defendan berhujah IDD10 perlu dijadikan ekshibit kerana pembuat dokumen iaitu SD1 hadir beri keterangan sepertimana penjelasannya di m/s 128- 164. [53] Pihak Plaintif membantah penandaan IDD10 kerana ketiadaan tandatangan daripada Ketua Jabatan, ketiadaan dokumen asal dan pemfailan lewat iaitu dua (2) hari sebelum tarikh sambung perbicaraan kes. Selain itu, pihak Defendan juga telah bergantung kepada kes Dato’ Kanagalingam A/L Veluppillai V Majlis Peguam Malaysia [2022] 3 MLJ S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 699 oleh Mahkamah Rayuan dan berhujah IDD10 hendaklah ditandakan sebagai ekshibit. Dengan hormatnya, Mahkamah tidak bersetuju dengan hujahan tersebut kerana dalam kes tersebut dokumen yang terlibat adalah CD rakaman yang merupakan dokumen dijana oleh komputer menurut seksyen 90A Akta Keterangan 1950. [54] Berbeza dengan kes semasa, IDD10 adalah satu Borang Laporan Kerosakan JKR yang mana datanya tidak dijana secara automatik oleh sistem komputer tetapi ia direka/disediakan oleh manusia sebelum diprint, diisi dan dilengkapkan menggunakan tulisan tangan oleh saksi SD1 dan pihak-pihak lain yang berkaitan. Oleh itu,prasyarat sepertimana dijelaskan dalam kes Dato’ Kanalingam (supra) hendaklah dibezakan dengan IDD10 tersebut.Oleh itu,hujahan pihak Defendan tersebut hendaklah ditolak. [55] Bagi menghurai isu ini, Mahkamah perlu mengenalpasti sama ada SD1 adalah pembuat dokumen IDD10? Berdasarkan keterangan SD1, sebenarnya SD1 bukanlah satu-satunya pembuat dokumen IDD10 untuk memberikan keterangan tentang keseluruhan maklumat terkandung di dalamnya. Keterangan SD1 adalah seperti berikut: (Rujuk NK m/s 145) “SD 1 : Borang ini saya Cuma isi kat Bahagian anggaran kos pembaikan saja. Peg. Plaintif : Tapi bila kamu serahkan kamu tengok di mukasurat 1 ni, kamu serah bahagian 3 saja ke ataupun bahagian 1 pun kamu kena serah? SD 1 : Borang ini dimajukan lengkap sekali tetapi saya hanya mengisi untuk bahagian … S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 Peg. Plaintif : Jadi kamu tak akan cek bahagian-bahagian lain maklumat dia betul ke tak? SD 1 : Ya kecuali dilampirkan Bersama-sama dengan laporan polis tersebut. Peg. Plaintif : So jadi Bahagian 1 ni kamu memang tak check dan tak confirm kenapa diletak date 13/03/2019 eh? SD 1 : Ya.” (m/s 148) [56] Hal ini bermaksud, keterangan IDD10 tersebut masih belum lengkap dan sempurna kerana terdapat beberapa bahagian perlu diisi dan dilengkapkan oleh pihak-pihak yang berbeza dan bukannya SD1 seorang. SD1 sendiri mengakui tidak ada pengetahuan segala maksud kandungan IDD10 tersebut kecuali di bahagian yang beliau terlibat sahaja. Malah, dokumen asal juga tidak dikemukakan oleh SD1. [57] Melihat kepada situasi di atas, pertamanya, Mahkamah merujuk kepada persoalan adakah satu keperluan untuk pihak Defendan memanggil kesemua pembuat dokumen tersebut? Mahkamah mendapati seksyen 73A Akta Keterangan 1950 merupakan satu peruntukan khas bagi kemasukan keterangan dokumen dalam kes sivil yang mana seperti berikut: “(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- S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 (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 or of the material part thereof certified to be a true copy in such manner as may be specified in the order or as the court may approve, as the case may be.” [58] Apabila dikaitkan dengan kes semasa, Mahkamah berpendapat kehadiran SD1 adalah cukup untuk mengesahkan kewujudan IDD10 tersebut tanpa perlu memanggil pembuat dokumen yang lain bagi menjimatkan masa dan kos kesemua pihak. Mahkamah juga berpendapat ketiadaan dokumen asal tidak menjadikannya fatal kerana “salinan diakui sah” telahpun dindors dalam kes ini selaras Seksyen 73A Akta Keterangan 1950. [59] Keduanya, Mahkamah merujuk kepada keperluan keterangan dokumentar di bawah seksyen 61 sehingga 64 Akta Keterangan 1950 yang menjelaskan tentang kedudukan dokumen primer dan sekunder. Memandangkan IDD10 tiada dokumen asal untuk dibandingkan, Mahkamah merujuk Seksyen 65 Akta Keterangan 1950 memperuntukkan seperti berikut: (1) Secondary evidence may be given of the existence, condition or contents of a document admissible in evidence in the following cases: (a) when the original is shown or appears to be in the possession or power- (i) of the person against whom the document is sought to be proved; S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 (ii) of any person out of reach of or not subject to the process of the court; or (iii) of any person legally bound to produce it, and when after the notice mentioned in section 66 such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot for any other reason not arising from his own default or neglect produce it in reasonable time; (d) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of section 74; (f) when the original is a document of which a certified copy is permitted by this Act or by any other law in force for the time being in Malaysia to be given in evidence; (g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection. [60] Mahkamah mendapati IDD10 adalah Borang Laporan Kerosakan mengikut Pekeliling Perbendaharaan Bil.7 Tahun 1985 adalah terjumlah dalam para (e) kerana ia didefinisikan sebagai Dokumen Awam menurut seksyen 74 Akta Keterangan 1950 seperti berikut: The following documents are public documents: S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 (a) documents forming the acts or records of the acts of- (i) the sovereign authority; (ii) official bodies and tribunals; and (iii) public officers, legislative, judicial and executive, whether Federal or State or of any other part of the Commonwealth or of a foreign country; and (b) public records kept in Malaysia of private documents. [61] SD1 adalah seorang Jurutera Mekanikal di Jabatan Kerja Raya Negeri Johor yang mana jawatan dan statusnya sebagai pegawai awam tidak dipertikaikan sama sekali. IDD10 terhasil daripada satu Pekeliling Perbendaharaan Bil.7 Tahun 1985 yang merupakan satu Pekeliling Kerajaan Malaysia. Oleh itu keterangannya atas kapasiti sebagai pegawai awam dengan mengemukakan IDD10 yang dalam milikan dan rekodnya hendaklah diterima masuk oleh Mahkamah kerana seksyen 65 Akta Keterangan 1950 membenarkannya diterimamasuk sebagai ekshibit D10. [62] Seterusnya, bagi isu D10 yang tiada tandatangan Ketua Jabatan SD1 telah menjelaskan seperti berikut: (Rujuk NK m/s 154) “Peg. Plaintif : Saya cadangkan disebabkan Ketua Jabatan tidak tandatangan, kamu tak tahu sama ada cadangan kamu ini diterima atau tidak. Setuju? SD 1 : Tidak. Kenderaan awam tiada keperluan tandatangan Ketua Jabatan. Peg. Plaintif : Tapi bahagian ini disediakan untuk kerosakan standard form. S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 SD 1 : Ya. Peg. Plaintif : Bahagian ini disediakan untuk Ketua Jabatan tandatangan. SD 1 : Sebab milikan kenderaan ini kenderaan awam. Peg. Plaintif : So jadi mereka tak perlu tandatangan lah? SD 1 : Ya” Mahkamah berpendapat penjelasan yang diberikan adalah munasabah dan tiada sebarang keraguan di pihak SD1 kerana sudah pasti tiada keperluan pekeliling perbendaharaan untuk berbuat sedemikian. Oleh itu, bantahan Plaintif bagi isu ini wajar ditolak. [63] Berbalik kepada isu utama, iaitu sama ada percanggahan tarikh dalam P8A&B berbeza dengan tarikh D10 menunjukkan saksi-saksi Plaint tidak ada langsung pembaikan dibuat ke atas motorteksi milik SP2? Mahkamah mendapati sebenarnya keterangan SD1 hanya mengesahkan telah membuat pemeriksaan secara luaran sahaja. Keterangan SD1 telah dicabar seperti berikut: (Rujuk NK m/s 151) “Peg. Plaintif : Hanya visual inspection, kamu tak boleh tahu the actual damage motorteksi. Betul? SD 1 : Setuju. Peg. Plaintif : Saya juga cadangkan tiada sebarang bukti sokongan untuk menyokong kos RM3040 ini dalam laporan kamu. Setuju? SD 1 : Setuju. S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 [64] Malah, harga yang dicadangkan oleh SD1 juga tidak termasuk kos-kos lain seperti kos buruh dan kerja-kerja cat seperti berikut: Peg. Plaintif : RM3040 ini inclusive of labour works? SD 1 : Tidak termasuk. Peg. Plaintif : Saya cadangkan kerja-kerja cat tidak termasuk dalam RM3040. Setuju? SD 1 : Setuju. [65] Oleh yang demikian, berdasarkan keterangan SD1 tersebut, Mahkamah tidak bersetuju dengan nilai yang dikemukakan oleh pihak JKR kerana pemeriksaannya tidak melibatkan keseluruhan termasuk bahagian dalaman motorteksi SP5 dan lain-lain kos berbanding pemeriksaan dibuat oleh SP2 dan SP3 sebelum ini. Walaupun pihak Defendan berhujah tentang percanggahan tarikh pada dokumen-dokumen tersebut, namun hakikatnya SD1 sendiri tidak ada membuat pemeriksaan yang menyeluruh atas motorteksi tersebut untuk mengesahkan benar-benar tidak dibaiki langsung. Oleh itu,isu ini tidak menjejaskan tuntutan Plaintif secara keseluruhannya. [66] Seterusnya, berhubung isu gambar-gambar pembaikan motorteksi, SP4 sebagai pemilik bengkel yang telah membaiki motorteksi SP2 telahpun memberikan penjelasan bahawa beliau tidak dapat untuk mengemukakan gambar-gambar Motorteksi SP2 sebelum dan selepas pembaikan, buku rekod bengkel dan barang-barang yang telah dibeli dengan kerana bengkel ditimpa bencana akibat pokok tumbang. Penjelasan SP4 seperti berikut (Rujuk NK m/s 99-100): S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 “Peg. Plaintif : Peguam juga Tanya kamu tentang itemisation untuk semua barang yang kamu telah beli untuk kereta dan beliau kata bengkel sepatutnya ada. Kamu setuju. So kamu ada buat itemisation tu tak? SP 4 : Saya beli itu barang bil memang ada tapi gara-gara bencana .. Peg. Plaintif : Memang kamu ada buat lah? SP 4 : Ada buat. Setiap kes mesti ada buat. Mahkamah : Mr. Ng, ini bencana apa ni? SP 4 : Pokok jatuh atas bumbung 3 suku kilang habis. Mahkamah : Bila kejadian dia? SP 4 : Masa bulan 7 2019.” [67] Selain itu, menurut SP4 telefonnya sudah banyak kali tukar dan sukar untuk mendapatkan gambar-gambar pembaikan. Penjelasannya dapat dilihat seperti berikut: (Rujuk NK m/s 99) “Peg. Plaintif : Dengan izin Puan, Mr. Ng tadi peguam ada Tanya kamu setuju bahawa kamu tidak mengambil gambar teksi selepas dibaiki. Kamu kata kamu ada tapi kena korek keluar. SP 4 : Ya. Peg. Plaintif : Jadi kalau diminta awal boleh kamu kemukakan di Mahkamah? SP 4 : I can try my best lah because I change a few phone. Ada masalah dekat sana. S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 Peg. Plaintif : Tapi ada ambil gambar? SP 4 : Ada”. [68] Jika pihak Defendan hendak mempersoalkan bagaimana P8A & P8B masih elok dan dapat dibekalkan oleh SP4 maka sepatutnya dicabar lanjut dalam pemeriksaan balas namun gagal dibuat. Tambahan pula Pihak Defendan tidak ada membantah atas penandaan P8A & P8B pada masa itu. Oleh itu, Mahkamah mendapati tiada sebarang keraguan atas kredibiliti dan keterangan SP4 tersebut. [69] Selain itu, ketiadaan gambar-gambar pembaikan motorteksi tidaklah menjadikan kes fatal kerana gambar-gambar tersebut hanyalah sebagai keterangan sokongan kepada kes pihak Plaintif sedangkan wujudnya keterangan bebas lain seperti SP4 dan keterangan dokumentar lain untuk membuktikan motorteksi SP2 telahpun dibaiki pada 03.04.2019. Keterangan SP4 juga mengesahkan telah mengikut laporan adjuster oleh SP3 dalam membaikpulih motorteksi milik SP2 seperti berikut: (Rujuk NK m/s 100) “Peg. Plaintif : Ini saya summarize soalan-soalan rakan bijaksana saya tentang repair lah ke atas teksi. Macam mana Mr. Ng boleh confirm repair untuk RM5200 ni telah dibuat? SP4 : Saya sebelum kita baiki adjuster akan recommend bincang dengan kita apa yang kena ditukar dan roughly target sampai mana so saya ikut dia punya cadangan itu tapi ada parts tambahan saya taka da kira juga kerana macam tiang masuk bila tiang masuk abes kerja pun saya tak ada masukkan.” [70] Malah menurut SD1 turut mengesahkan jumlah kos RM5,200-00 tersebut adalah tidak jauh beza dengan kos anggaran kasar pihak JKR S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 sebanyak RM3,300-00 sebagai tanda aras untuk proses selanjutnya seperti berikut (Rujuk NK m/s 160): “Kemudian menjawab soalan tadi RM3040 tu adalah anggaran kasar dan jika dilihat di Ikatan B tadi yang mana mukasurat 12 kita lihat jumlah total pembaikan adalah RM5200 yang mana RM5200 tersebut kita lihat lebih kurang RM3300 adalah kerja-kerja dan hanya RM1400 adalah melibatkan upah kerana itu anggaran tafsiran ini tak jauh beza daripada apa yang dinyatakan oleh bengkel jadi kerana itu kita berpandangan bahawa anggaran kasar ini memadai meletakkan tanda aras untuk kita melaksanakan proses seterusnya iaitu proses perolehan dan pembaikan.” [71] Oleh yang demikian, Mahkamah membenarkan tuntutan kos RM5,200-61 (RM2,000 +RM3,200-61) sepertimana resit P8A & P8B tersebut kerana ianya jumlah yang munasabah dan telah dibuktikan. (b)Kos kehilangan penggunaan motorteksi tersebut selama 10 hari. [72] Pihak Defendan berhujah pihak Plaintif gagal untuk mengemukakan bukti bahawa sebagai pemandu teksi, SP5 akan kehilangan sebanyak RM200-00 sehari. Hujahan Defendan-Defendan juga bahawa Motorteksi tersebut adalah kepunyaan SP2 yang mana secara nyatanya beliau katakan bahawa Motorteksi ini adalah untuk disewa pada harga RM50-00. Jadi dihujahkan bahawa kadar kehilangan kegunaan kenderaan Motorteksi milik SP2 hanyalah sebanyak RM50-00 sehari. Sekiranya adapun kerugian disebabkan kemalangan maka kerugian sepenuhnya ke atas SP2 dan bukannya SP5. [73] Bagi menjawab isu ini, Mahkamah mendapati keterangan SP2 sebagai pemilik motorteksi sepertimana di m/s 55 Nota Keterangan menyatakan S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 sewa motorteksi sebanyak RM50-00 sehari manakala untung bersih bagi sewaan motorteksi sehari berjumlah RM200-00 bagi SP5 sebagai pemandu motorteksi. Jumlah ini juga konsisten dengan keterangan SP5. [74] Pada pendapat Mahkamah, kos kehilangan penggunaan motorteksi itu tidak terhad kepada SP2 sebagai pemilik motorteksi semata-mata kerana sebagai penyewa motorteksi tersebut, SP5 juga menjadi pihak dalam tuntutan ini (Plaintif Kedua) dan kemalangan tersebut turut menjejaskan pendapatannya untuk menggunakan motorteksi tersebut selama 10 hari sepanjang dibaiki di bengkel. Kehilangan penggunaan motorteksi antara SP2 dan SP5 adalah saling berkaitan dan sangat rapat. Oleh itu, Mahkamah membenarkan kos ini sebanyak RM2,000-00 (RM200/sehari x10 hari). (iii) Faedah yang dibenarkan: [75] Atas Ganti Rugi Khas sebanyak 2.5% setahun dari tarikh kemalangan hingga tarikh penghakiman. Atas Jumlah Penghakiman sebanyak 5% setahun dari tarikh penghakiman sehingga tarikh penyelesaian penuh dan kos mengikut skala. Oleh itu, keputusan adalah sepertimana dinyatakan sebelum ini.Curia Advisari Vult. Bertarikh: 16 November 2023. NOORFAZLIN BINTI HAMDAN Majistret, Mahkamah Majistret Sivil 1 Johor Bahru S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 PIHAK-PIHAK: 1) Cik Maithily Manoher dari Tetuan C Sankaran & Co -Peguamcara Plaintif-Plaintif 2) Puan Nur Najihah binti Hamidi dari Pejabat Penasihat Undang- Undang Negeri Johor -Peguam Persekutuan Defendan-Defendan S/N /3TdBLmokSH6QkuGO7oPw **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

WA-24NCvC-674-03/2023

PEMOHON M101 ENTITY SDN BHD RESPONDEN CRCC Malaysia Berhad

This Court grants the conversion of the OS into a writ action. See Lim Pey Lin v Chia Foon Tau (P) & Anor [2002] 1 CLJ 420, Pesuruhjaya Ibu Kota Kuala Lumpur v Public trustee & Ors [1971] 2 MLJ 30. Costs in the cause.

27/11/2023

YA Puan Roz Mawar binti Rozain

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=39ffd602-41eb-4e5d-bbfb-84d4dd433f34&Inline=true

27/11/2023 10:55:29 WA-24NCvC-674-03/2023 Kand. 58 S/N Atb/OetBXU674TU3UM/NA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N Atb/OetBXU674TU3UM/NA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N Atb/OetBXU674TU3UM/NA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N Atb/OetBXU674TU3UM/NA **Note : Serial number will be used to verify the originality of this document via eFILING portal wA—2mcvc—674—o3/2023 Kand. 58 2:/mznza 10; IN THE men COURT IN MALAVA AT KUALA LUMPUR -22 I» THE FEDERAL TERRIYDRV. MALAYSIA CIVIL CASE NO: WA-24NCvC-674-0202023 BETWEEN M101 ENTITV so» am (In Ru llvershlp and Liquidation) pummrr (company No : 101401011033 (1ns71ss-VJ) AND cncc MALAVSIA BERNAD DEFENDANT (Campnny No 2 1 uzzsss-n1 GROUNDS or JUDGMENT Iinn to cunverl mg Plaintiffs Enclcmm 23: The Dnfuldlnfs appui os mm a wm ncfion lnlrodu m The Dsiendanrs apnncauon us amused on the conlsmmn mat an me alfiaavnls exchanged by me names snaw suusxam-an mspule av «am 1 ‘ sw Atnxoqzaxuavuumm/NA «ms smm ...m.mm be used m mm .. mm-y mm: dun-mm VII mum pm man n-easmanea a run man mm vwa vase awdsnua. The Illushalwans cried hylhe Defendant Included (2) whether a lrusl over me saw and has been maaksd in iauaur M me Defendant (:2) whemerm: Plamliflcunducled nsemn amudu\en| manna lo depnve me Defendant at me monies due and uwlng by me Plamm by rmna me 05 to remove the caveat [21 me P\amlm's os |u remove ma Dacenaanrs mace caves! lodged on me «owners land Vs premised on the oanlanlmn man u was regwsleled wmngluuy by ma Deremam To max ma Dehndanl oonlandea lha| .1 had a cavaztabla warns! Anagauens a! [mud on me pan of ma mavnuu And i|s shareholders/Mflcen vunumd nu ma Davamanra mmmuan ma mmacary Judgmanb aside‘ Ihum wevv many ulher mug: cl Impmpnaly m the backumund man peep hmugh ma new-uanrs amaavn lxplmalicn max may am rm lodge ma ravaa| wmngvuuy There was zlsu ma Issue oi Ins| — lhaugh nm expllcmy ma reason sla|ad I“ ma form that accompanied the reqwstralion mme urivale cavea| Under s323(I) Nnllonm Land Code‘ a pany clivminn beneficaal interest in |he land has a caveatahle Interest The Detenaam had been consIsI.en( m as stand that ii aid and shll does [a1Tms, warrants a haanng man womd be best heard mmugn vrva vooe ev-dame Instead cl Ihmugh amdauus rm com Is persuaded Ihat u would onry be van nu award me Devenaant ma oppommrly to adduoe ms svldence In com in cnnuburane mew postman‘ even « me Defendant Vs an unsecured cyammr. Because that pnvale caveat was lodged to «my V! stands In hne (L: receiva payrnems due. Vn Tmg Llng Kl": 5. Ann! v ‘run 1 sm Awoqxaxuuumzummn «mm. sm-1 ...m.mm .. U... a may he mmuny -mm: dnuamnl VI mum Wm! Env lvun Work: Co U11 [1991] 2 MLJ 211 me Suvrume Cnun mad at v 227. ’L/nquaslronably. mesa conflacls m Ms evmence can only be pmperly and senslauon/y resolved «ram swdence rs adduced and witnesses cmssexanulved on Iherrewdenbe wmch, nowever, :5 not passable m pmcsedmgs begun by orfgmalfng summons Tu em: ru me uncensmly of me /ants me ueponems :7! mm allrdavtls allhs appeuanzs and me respondents were not wuss-exammea lo eseenem me veracity or amemse of their e-/rdence u would seem me: mm names were conlsnled Ia I951 me.’ case on mu alfidavus only whats such muevus do not unsamvocally bear zesumony zoncluslvuly and posxlrvely to me various eneganons mu are lrvsmselvn open re more (Ivan ans u-uerpmeum ~ [41 Orderzs Rmefi and Orderé Runs 2 was mcaun 20121RoC)uNer mu Cour! me wwer lu cunvsn me os mm a wn| amen wnere mam ws Iukuly la be a substantial dvsvma cf facts. Tu assess vmslbsv me Defendam mdeed had caveamhle mneresn nms oeun Heads la ascenam mat Dnsmon mm a iindmn or lasts »/mun womd «amy he corvdumed «much the examinalmn onwe was evidence (51 Ths besllumm luvlhis case to eneme mus ceumo make a just and proper delermmabon ov me Issues a| new womd be by way av me ~ Nu Yaw Ming v Ho Ya! Hony & Or: [2021]ML1U 2271 ltdoss not m any way mean ma| me prooeeamgs wm be my and prokacled. The pnnepxe m yememe |n me (an m Issue mum still he apphcable and smmy adhered lo. See an Pnmler Modal (M) Sdn arm u Fhilea Prumaludo em Awoqzaxuncmzummn «mu. sun-1 ...m.mm .. med u may he mmuu -mm: dnuamnl VI mum Wm! Sdn Bhd a. Anor [anon] 1 MLJ 364 mu runimmmi @ Fuihipnmbinai v eon Mary A 0rs[2M1)1 MLJ us [91 ms com gmnus me cnrwarsmn 01 ms os mm a van armon See Lim Fey Lin V cm: Faun Tau (P) 8. Anal [2002] 1 cu 420, Fosunlhl - Ibu Km Kuala Lumpur v Public trusts: & Ors (19711 2 MLJ an, Cos(s In me cause. DATED 1 NOVEMBER 2023 R02 MAWAR ROZNN JUDICIAL commssxomza men coum w MALAYA KUALA LUMPUR For the P/Imnll James Oar, Claudre cma s Khoo Mar ma T/n sum For the Defendant‘ Samay Mohan 5. can we Chen r/n Samay Mohan ‘ sm Ainxoqxaxuuvuumm/NA «mm. smm ...m.mm .. U... w my me mmuny mm: dnuumnl Vfl mum Wm!

Tika 2.6.0 & Pytesseract-0.3.10

BA-41S(A)-1-01/2022

PERAYU Mas Ayu Siti Asmah Hani Binti Zainul Abidin RESPONDEN Pendakwa Raya [TIMBALAN PENDAKWA RAYA ]

Rayuan terhadap hukuman dan sabitan – s.43(1) Akta Pengangkutan Jalanraya, 1987 – elemen-elemen untuk dibuktikan - keterangan Perayu menunjukkan empat versi berlainan berkaitan bagaimana kemalangan tersebut berlaku - keterangan Perayu adalah bercanggahan antara satu sama lain - hakim bicara yang mempunyai kelebihan “audio-visual” adalah dalam kedudukan yang terbaik untuk membuat penemuan-penemuan fakta - mahkamah di peringkat rayuan tidak akan campurtangan untuk mengubah keputusan hakim bicara berhubung perkara-perkara yang menyentuh dapatan-dapatan fakta hakim bicara hasil dari penilaian teliti keterangan saksi-saksi di hadapan hakim bicara yang membicarakan kes – hukuman pemenjaraan 9 bulan yang manifestly excessive diketepikan

27/11/2023

YA Dr Wendy Ooi Su Ghee

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27/11/2023 15:27:26 BA-41S(A)-1-01/2022 Kand. 45 S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N PGti9u3NPkmQ1GRYHxnM0w **Note : Serial number will be used to verify the originality of this document via eFILING portal EA-41S(A)-1-01/2022 Kand. 45 27/11/2023 1s»2 : mum MAHKAMAH TINGGI MALAVA DI sum ALAIII DALAM NEGERI seumson DARUL EHSAN FERBICARAAN JENAVAH no sA41s A 141/znzz ANTARA was AYU sm ASMAN rum Emil zauuun. AEIDIN (No. mp; anlnl-n1-sun) PERAYU mm PENDAKWA RAVA RESPOIIDEN ALASAN PEIIGHAKIMAN Penqunllln 1 nu adulan myuan danpada Periyu Ievheflap ubxun dan hukumin» nuxuman yarm man diialuhkan o\eh hakum mcarz ke alas Fernyu pzfla m 01 2oz: wanu hukuman peruara se\ama sembnan (9) bulan din Iankh sabilan, denda sebanyak RM$‘0Dfl—0fl uka gagal bayal 12 bulan vemala. bayaran pampzsan sehanyak RM3.5D0—fln amayav kepada xeluarga mangsa dan resen memandu Perayu menamskan 2 Perayu «erah dlhadapkan dengan permduhan dw bawah s 43(1)AkIa Pengangklnan Jzlan 1937 (Akla my mum- ‘fiihuwu kumu pan: 14052010 Ilm mm Inning ma :2. ng av Eulalan man Pwsrarin Desa Wvggavan pm Dalam Dasrun Sevanv aw dalam Neqen Se/Bvvvar sehagm searurvg pamurldu mulaknr nomlwr psndlflamrl vcusn Islah memarrou kenderaan mnlokar Ietssbur :1: [aria seem Max csrrnar den um bemmaangvasa ssmngga mnnynbnnknn x. nungu: kapnck pnnunggang molnmknr rvovllbor 1 am I>Gusn2Nvkmo1GRvH>mMaw “Nun: sm.‘ ,..u..mu .. uxafl w my ». mmm -mm; fluumlnl n. IVMNG Wm! PIN-Hum ucazsc mm Fabma Zmwurm mm zumy mzrnlzw kad plrrynnlhn 900521-H-5354. man my demriuan kimu man mstaxmn salu kasalsnan yang man dmukum mm» mm 43 m Akla Fsngaflgkulan ./alan 1937 mm 33:; Nukuman SL741) AF'./ 1997 Ma dxsabolkan xumanun, I-vtumm Dolph mlmkum dsnda bdak Kurang aanpaa. Rmmaoa dun lmak mm .:m..:. RM11J,I)00oo .1." belch pga dlpemarlkan scluml nmpon ndck med-hm/vzbman saw an my Mnmmmm mam» momcnnlamun but/r—hul/r msngmltlpo-hp: ublun «mm» uksycn WH o-ndolklnpndl mm... mm lawn rnnmlndu mgmuouana am. ararlv yaw d/sabukaa flu man) Akva J33 mempcrumulkun Iepem benkul . Mwnnnlu dnnyan mm «mm on ma I:-rltmbung mu 4: m Snowing ynny memarvdu sunlu Avmnrun rvnzlarviulln llnpn km:-mmllrv dln pemanarv yang seuan/my: man tirwa pemnlbarvyarv yang rmmasahah tum-day mung lam ynng mwunmn man Mu metakukan sualu mama flan mm a.s.mm *nam1utnn dmukum am. am mm mum ampal nhu mm on man mm flarlpldu upuluh mu mum an bofivh luau d»pun;uIkm Jnlnmn I-much mm mslsmm mu lulu mm lan 5.4341) Akla :3: elnman-alevnen aalam penumman yang wm dvbukllkin ohh pendakwaan (emadap Pemyu mm. Ferzyu «swan memandu kevelanya ‘ianpa ksrmrmatan“ din 'lanpa pamahan yang sepatulnya‘ man 'lanpa pemmbangan yang munassbah' Izvlladap urang Ian yang menggunakin mun nu 5/N PGIf3u3N|>km01GKVHmMl1w “Nun: sm.‘ ...u..mu .. mod w my .. nrwmlhly mm. flnulnlnl n. -Hum; pun!‘ my menyalakan bahawa hukumzn Ievsebm adak-1h Iempnh fin; bersesualan hanya berdasankan kehadiran a many saksi sedangkan salsl verseouc aaaxan Saks: bagl pmak Psndakwaan lanpa mengamhll ma bahawa Perayu adanah seorang Peruawal Awam yang masm diperiukan perkhidmalannya m menyztakan bahavwa Hukuman hernbul mbankan melah menqamm kna kepenlmgan zwam sedangkan 5| man helah memanflu canpa lesen memzndu Sena mak memakai |apI keweaav m memaluhkan Hukuman (ersebut sedarugkan ml adalah merupakan kesalahan panama Perayu 15 Blavpun Pmsyen Ruyunn mengandungl uwmmlmn 4-) mm: M. namun penghmzhan llsan yang muusuln dervgan pengmqnhan nemms plhak pembexaan hanya marlyarmm |su—iiu beriklfl — (3) mmauh dalam laluan yam an my Penflakwaan gagal memnuumkan |mk Impak (‘Poml oi 1mpacI“)kema\angarI, (:2) Kemawangan berlaku msebahkzn penunggang mo(osr><a\ euba melenasx flan memmtas keveta Pelayu, my Kesan vemuk pada xerexa Fevayu iflalih msahahkan o\eh kesan Ierpelantmg swmalw flan sm. (3; smm menmggal dumi iknbalkecederun Ievius dx blhiylun kapah ekovan keqagzlan s\mi|\memakmlap1ke¥ed 11 am PGwn3Nvkmo1GRvH>mMaw “Nun: sm.‘ ...u..mm .. mad w my .. mmm -mm; flwulnlnl n. IVMNG Wm! 15. (0 (9) Small udak mevnwkl Venn memundu pm: man kuadlan‘ din Ylafla kalerangan dan penflakwaan hahawa Perayu lelah memarmu kerala dan avah berlemangan ams lvifik am pun cub: memolonn kendevnn mu pun mlmbahnylkan pangguni .a|an.aya yang Vain alnu pun dalam kel-man yang exwssrve Bagw menyckong pengnujanan pembelaan bamwa Psvuyu berafla d.I\am Illuan yang uh can hukannyn snnan, pembelaan nenan maruguk kepafla kale1zngIn—ka1ar:ngIrI belikul » (I) U‘) spa (Sm Ahmad Zuhlv Em AM Manas ~ pegawai penyhsat) bersetwu dengzn pemnaxaan semasa pemeflksaan ba\as bahawa annau yang Dermal keluav xe Taman Desa Fmgglran Pulla hem! gagal mengamml Vnluan yang sah lam: nu ma: mama" Du|us—pu|uI [ma mm mukasura| 179 Jun: 2 Reload RIY|unl 5 says am.» penmmang mammal seklranya mm as man pm Pmyglan bolalr manggunuun film dl my qaruan pmu.I—pmus larsabufl ¢ s.:u,.. s-wx (Ahmad ZuV1adhIiAlmarI hm Zulkllly » pembonceng) jug: baneunu dcngln pembalnn bahnwa umuk keluar dell human, mmoaum sepalmnya mllmggnng m may garlsan putus-plnus ma nnan mukanuzl 41 Jllwd 2 Rakod Rayuin] 5 Say: kzlsnun, sepuulnyl motor Kakak umu ammgwy a: my gun: pulus-paw: squib 4.. Mk am J Salu/u :2 am PGIf3u3N|>km01GKVHmM0w “Nun: sum ...na.mn .. mad a my a. mwmnhly mm. flnulnunl a. mum wrm 17 13. Bag! menyckong pengnupnan pembelaan bahawn ksmamgan berlaku disebabkan penunggang mmosikal lswmah Cuba melepasw flan memmlas kereta Perayu, pembelaan lelah mamjuk kepada keiemngan-kelerannan henkul [sua IIhalmukasum20J\hd 2 Rekod Rayuan] (n Kehavangan spa semisa pemamaan was menmuukkan ipabda man nzmvak kereta Perayu keveta aanang, simali Ielah cube mela]m(an molnsxkalnya Izehpl hdak Iepas s Boluh bent-ml uanman. komrpn NU: hm rlu kamu ma rrwmomankavv cava Iuvwzngan kakzk kamw ./ Semasa says duduk be/slang kukak says Kakak say: rnen/Ml mm nnmpnk mm M dung pm ms; nu sm mg-: um cubs lam» mam (apt Ink Iona. raw mast: am pm my: Ivampaklnh km. W um mm m w kakak says Domain: /Hluflra mm tlu ./ad: sayfi namDBHsh uema Mu on Dan menunn ketenngan spa (pegawai penylasall dv mukasura(177 ma 2 Rekod Rayman 5 Kzmalanuan rm bmnku pammwurw mam. run: maapasn Pmlas Myw my Davida m 'X'pada kslflra rm seaumeauuaaw J Senqu Berkanan su ml, dalam alasan penghaklman nakim means (e\ah memperwmangxan kelerangan Ferzyu yang menyalakan — (i) beliau halal: memhemenllkan xemanya sebelum masuk bulalan dan man melihzl ke kvi, depan dan kanan bagw memishkan naaa kenderaan Vam yang Ialu an da\am bmalan 5/N PG1f3n3N|>km01GKVH>mM0w “Mm sum ...u..mu .. mad u my a. mm-y -mm: flnuunlnl u. muue wrm (I4) Penyu mamanflu dallm kal: an zokrn/. (m) kzma nu |engah bulalan. |Ib2—Ima spa |erpe\an|IlIg ke csvmm nnaapan «ems wemyu <9 Dalam pada nu, haklm hicara telah memiapal kenyataan Perayu -ma-nna SP1 zerperanrmg ke celrnm nadapan I<ereL:nya' menaflkzn Perayu lelah munaunenmn keveianyz sebelum masuk hulaun dun man meuhal ke km, depart din kanan mu memasllkan had: kemleraan lam mg Ialu aw damn: nuuanan. Malah ia mambuklikan unaakan nmbrona Perayu senmga um mznycdan apa yang hefluku an sekelmngnya uwaktu memandu mm 2n m sampmg Mu‘ hnklm mcara Ma man mennuu kepada Seksyen 3 Peraluran Lalu umas 165/1959 yang amzva Vain menyalakan hahama muan hams mbankan kepada «am yarlfl many man man kanan dnlam sualu human (‘give rvgh! or way to name an or lppmachlny «nun ms ngma: -ny munaanour) 21. Mankamah .n. berseluju dengan dapatan haklm bwcara tevsebul mengenaw Isu unx Dan nou xenevangan‘ adalah dapanan mankaman mi banawa keletingin sw yang menyallkan mass meveka nampak ueueqa Pevayu‘ meleka bevada 61 v4 dalam P1 (gambar vajzh mnpnc kajaman) [slla hha| mukasuun 2a mm 2 Reknd Rayuan] Semasa Demenksaan balaa SP1 5 Bowl: bemalvu Mahltamalv, mane ma nan rlu knmu pga mememankan cars Iunwanaan kalak kimw J Semis: saya duduk blhkang Hunk say: mu uyzn msmm mesa I-ampak karala nu dalang Pad: mesa Nu 14 am PGIf3n3NPkm01GKVH>mMIlw “Nut: sum ...na.mn a. mad a my a. urwmnhlv -mm: fluulnunl a. mum wn-1 saya mm mm cum: rs/mun mm mu m. Iapu Tam masts mm M says nampnklall kamla Mu mm mm ai V4, um say: bamanu Ia/um Ame Mu. my ny- ...m...u.n um. nu. u>en.»..m ammnnnl 22 Dleh nu‘ semaia Pelayu memasukv hulatan mx1lasi<a\ slmalr bemda a: v4 Ianu seoevan kinan kepada kersta Perayu Dan Fevayu sepamlnya akan dapal melinal moluswkal swam pads mas: nu, Maka benkulan Seksyen 3 Peralman Lalu Lima: I66/I959yang dinquk oleh haklm hbcara‘ Ferayu sepatulnya mamberl muan xenaaa mmosxkal uman 23 Selerusnya bag: menynkang penghuphin pembelaan bshawa kesan vemuk neda kem|a Perayu dan kevelakan cermin hadapan keveca adalah dlsebabkan oleh kesan Aemewammg simatv dan sm. punbelaan Ielah memjuk kepada kevevangan sw ay mukisurat 47 Mid 2 Rekod Rayuan » 5 Say: mm kssan rsmuk yany Ga/am rm aaaran man hzdan kamu den kahak yam: Ielpeisnlrnv’ sexum .I Sellqu flan xeaevangan spa m mukasural 153 mm 2 Rekod Rayuaw s Ksmlakan /lu Derptmcz mpaaa nsnunwganv nan Dembovmeny momma Iemsmpak he comm um: J sum 24. M:nakala,menum| ak venaakmanuzemasaman xaerangan sm dan svs gambar [P2 flan P5] dan lapmzn Puspzkom [P7 (A. on), kevosakan pada kerela Myvv Perayu dan molosIka\ simau ada\ah hasr! pevlembungin I uempunan monauxal swmah nan sebelah km aleh kelela Perayu :5 am PGwn3Nvkmo1GRvH>mMaw “Nun: sm.‘ ...u..mm .. mad w my .. mmm -mm; flwulnlnl n. IVMNG Wm! 25 Dawn ma “nu pmurannyn adalah spam yang Isiah mlnyebabkln ksmukin pad: keveta Purayu flan ma|esI<i\ sImaI|7 Mnkah 1: iklhal ramvuhzn /Perianggzvan dengan bahaaian kivi mcmslkal mam Nan kesan Iervelanlinu kedua—dua svmalv din s»=1 ke alas kema Para:/U7 2a D: gambur-gambar mm Perayu yang mkemukakan flan lapalan Puwakom‘ kevonkan yang maxm-nkan olah k-mallrwin amen. m vadlamv assy‘ vemuk kesemruhln no cannenser an—can remuk @ Izrlulak ke dalam on; no»: hadapan kenflaraan xenolau ke dalam @ remuk my kesdumhln Impu hldapun kin dan kanan pecan M bumpev hadlparl kendeuan Iemuk can man my kesaemnman csrmm nadapan pecah 27 Dan pengamalan akasan penghaklman hakwm bwcara‘ wsu mi le\ah dianallsa dan anzemmhangkan dengan «em. o\eh halum blcara berdasancan kesemua kenerangan Pendakwzan dan pemhelaan yang mkemukakan an mahkamah bicarz Hakim rncara |e\zh membuat dapalan bahawa Kerosakan (evuk ma kevela Perayu udsk akan teuadv akvbal kesan nerpelanung Kedua-dua siman dan sw ke ans kereta Femyu Hakim mcana jug:-1 Ie\ah membual dapalan banawa 'adalan trdak masuk am unluk menenma nemangan Perayu yang xeaumua snnan dun SP7 lerpelsnrmg ke eemwn kerela ranpa ad: Denaflqaalan den nanya Kenna snnan Iellepas nanare malasmal Iersenm keralva mencuba umuk mela/ukan molasrkalnya (amp! mu (crisps: “ 5/N PGn§n3NPkm01GRVH>mMI)w “Nun: s.n.n ...n..mn .. mad w my .. unvmuhlv -mm: fluuununl n. mune wrm 23 Memmn Hakim mm. mm afla mauaauana penunggarug mo1osrka\ yang akan I\ha—Iiha |erpe|am.Ing ke Done! hadapan sens cermm nadapan kerela yang mg... dllepasmya hanya kerana s. pemmggang «euepas handle molosvkalnya. Tambahan pura. SP1 yang berada m atas malasAka\ lelsehullelah memberl keneungan Dahawa belvau meraun Kerela Fenyu Ie\ah melanggar mmnsika\ Ievsebuldan sebexan km semngga wan menyebahkan Kemallngan «menu: 25 Sekerusnya, pihak Pevzyu meflghujahkan bahawa pendakwain gaga\ memmumkan mux Imnak rpommnmpacn kemawangan so. Berkzlan dennan Isu mi, pemoexaan lelah menghujahkan hahawl leldapil dua ketevangan yang dlkemukakan oieh pendakwaan Menurlfl gambar mah (amps! kqaman (P1) um Impak avau Ianpal Kemalangan berlaku adalah dilanda dengan hum1“X" :1 Manakalz menuvm sw (Mona Aman Em Mohd ZanI\ . psaawal pen;/\asa|)‘ bellau berieluw dengan pembe\aan bahawa behau max izhu ax man: porn! ofrmpacl dan hanyi bergamlmg kenadz anggapan dengan bevdasavkan kepada gambav man Iempat kefidlan (P1) [sfla what mukasulat 144 Jllrd 2 Rekud Rayuan]- s Kumu mak mm mm a) mum! pa-nu mm»-=1 ywg mm. m mm Kant rru Iellpt mm Dorsngyapun barmsslrlrun gumnuvdnruugnlaymin Puwakam‘ kamu Isiah msmbual kanmpularv bagamvana Kama/angan rm bevlzku. aelunfl J Semlu 17 am PGwn3Nvkmo1GRvH>mMaw “Nun: sm.‘ ...u..mm .. mad w my .. mmm -mm: flwulnlnl n. IVMNG wrm smemuuya an mukasur:| us ma 2 Rekod Kiwan- s Slya kalakan ksluurrgan knmuzormldlcr smn ladxkamu mink lam: 4, ma yum! ulrmyncl rm am-Am ndangkurl rmun khan! rm lelahpun msnnnluhkan m mane sebenamyapdnwnburvgamiu mm Serum alau lwdalo J Sum/u 32 Imam pads nu, pnmbmaun (elnh memyuk kepada kes Mzhkamzh Agunu dmam v-nun bin Kniim v Pu Pnmcuuor [1951] 2 mm 133 uan menqmuahkin an nawan keaaam ax mana xemapm dua sec xeaerangan bemanggahan yang dikemukakan Meh pendakwaan, inferens yang mernmak kepada lerluduh hams dllenma Maka, pembelian bemujah Mavens yang memvhak kepada pemhelaan adalah pendakwaan gagax membuklrkan mewampaui keiaguan yang munsahah Vckasl [anal (“exacuocanonv an mans ksvrmangan berlaku 3: Vin percangqahan keterangan Iersebul m mas nam dlhangkilkan |:ua| ksh panama dalam rayuan nu Olen Mu‘ hakm hicarz Ivdak berpemang memhua| apaapa uapacan «emang wsu ml 34 Bwarpun demuklsn. dan pengamman rmla-nc|a xenerangan, henkut adalah dapalan mi-1hkamzhim— my gumhar ram eampan kqadmn (P1) man mlakavkan nlah sve (Sm Ahmad Zuhalr am And Mini) spa adflah pegawii panyizszt yang menyiasfl kn pida hm knpadsan @ 14 as zmo den walah sampil ks lzempm kajadlan was 7 45 neung Pad: mas: Mu, kedua-dua kenderaan masm berada an lempal kejadlan Siasalan Iebh dI|aVarIkan meh sws din heliau \e\ah menandakan mum ' sebagal lempal kemaxangan an alas P1 u 5/N PGwn3Nvkmo1GRvH>mMaw “Nun: sm.‘ ...u..mm .. mad a my .. wrwmlhly mm: fluulnlnl n. mugs mm my SP7 (Insp Mnhd Nfian Em Muhd za-nan pula aaaxan pegawav nenwasal yang mengamhll am. siasatan daripada spa pada was 2910 Iallu dua han salspis lankh kemabngzn adalah kevana kemalangan (ersebul lelah mellbalkan kemaman make penyiasalan pevlu dwamhil alih uleh pegawaw polls berpangkal Inspeknor dan xe alas Kznas suasacan yang mssmakan men spa |umI msevahkan kepada sw umuk meneruskan dengan slasstan nl (cl Dalam pada nu, aaaxan dzpalan Mahkamah mi bahawa «max ada nemarmanan kemangan Aentang pom! ollmpacl atau pun lmk Inpak nempax kemalangan memindangkan gamhar Isiah lempal kqzdian (P1) ‘alas menunjukkan nurm --x" sebagan (amps! kemalangsn Memamiangkan sw hukzn pegawaw penylasat yang Ielah pergl ke lempa| kejadvan pad: han keyadiany maka adalah helul unluk sr:7 meruawah permzflan pegulmbela buhawa benau um um. pom: al unpnc: dan memhum kaslmpuran hemasmkan kepafln rajan mu. namblv din mg: lzpovin Puspzkom Tamhahan pula, plhak pembelaan jug: telah mengakuu flan menenma |empa| kemalangzn zdmah an |empal yang bensnds denaan mnnv '- . Malah pmak pembeiaan lelah nerglnlung kenana templl kemallngin /point ov rmmcr Q --x" sehngm laluan nu Panayu lm dipal ammn nan minn- tnzlan yang dmuukan men plhak pembaman kepada spa. [m mukasuIa| 175 mu 2 Rekod Rayuunj s P1, ksmu Vslukknn Xk: G m ldalalv garlsan mm glrlsan motoxmahitwmlatau mlolak ommunxazuyw Alaayam klmu wen Danlmu mm. Mnllknman kn/nu ammtnu .9 am PGIf3n3NPkm01GKVH>mMIlw “Nun: sum ...n..mn .. mad n my a. urwmuhlv -mm: m.n.n y.. mum wrm n.gm.n. mum u.m:..m d-am mm knndsrun be/akavvm [rape yanv n-amm: mas? suwlv lnrangknnv um m-«ranger. mkm sly: mm .2. Lempfilfimyadralv, um mum." mmm mmm Ada Kosuv /ru. dipwcnm Bukln Irrqulpln‘ uyn lltahpnvgHvnlamplIh1mun,IIm ma nzmpak man Dam, kswn samadi ksndelaan Mm lonakhenaelaan Mu he mean Imam keaadukan matosvkzl Impugtkz 5, mulnamamx, lcpasnu rorakke 5 lneoekanau dllamball) [dzn di mukasurat 117 Jun: 2 Rekod Rayuanl s Kemz/amen mu bertakll per-unggana motor ma me».-.m., puma: Myvr yang heads .2 ~x~ pads mm. Mu, wwu mm mm Sanuu aw»-«mu anammm hug: .1. mukaiurfl as Jilxd 2 fiaknd Rayuznl 5/N PGIf3n3N|>km01GKVHmMDw 5 Saw kmm konoda my Myvv hernia m -x-_ flu adalalv Valaun sail um, ssnqu aha wan max seam Snyl mama an ‘x~ llu. larwumn pumau WW sflpllulrvyn mocmun DDIIIWF urmm mnnflrmltv mmnya yang ssh mm dubs/any ole): kemieraan um, salwu mu waw fldak seam tn-um"... ammnz 1:: “Nut: sm.‘ ...u..mu bu mad w my a. mm; mm. flnumlnl n. IHUNG wrm Kn Pondlkwun 5 sncam nngkaxnya xanavangan penaakwaan menuruukkan ber1ku(- 5 I Pada nan kefiadwan @ 141D201DJam @ 5.30 pelang. sm (Ahmad Zuflidhlu Alman mn zmxnry; sedang membonceng molnslkal Ne Penaanaran MC 6284 ¢-momsikan slmalf) yang mmnggang clan kakak bellau ramna Zurwami emu lulkflly (nman). Marekz bevduz adalah flalam penananan aau lampal mengljl unluk ballk ke vumlh mavaka dv naaa Ping n Pull: 52 Semasz m da\am bulalan Jalan Pemaran ne—.a Fmg ' P-ma, Denglul ('huIalan lersehuf), sm flan slmall Ielnh ananggar dun sebehh sun olah sebuzh kevela Myw Na Penflaflnmn pm 511 (“kueu Fevayxf) yang mpanau lam ulah Favzyu dl kawasan banana: -x- a. dilim gambar vijah lampalkqld n (P1) 5: Setehh dnrempuh oleh kevela Pavayu. kedua—dua SP1 dan snmah lelah Iarpemnlnng ke arah cevmm hadaplrl kuela Pevzyu sehemm melamun ke sehelah kanan mevekl ks Ila: Jalanviya Aluhal kemalangan |ers:hul, SP1 mum sedu am namun manuaranu ke::edarz:n—kacedenan a. bahnglan muk bldan din km Minakzli wnzu Iidak sadzvkan din din le\ah munmggal duma pad: 1e1a2o«a an Hosynal Pulraizw aklbal ‘severe head m/UM s. Secam ummnman. pmuk pendlkwlan Ieluh mamanggu uapan ¢s) ovzng saksl unluk member! memngan Amara dokumen-dakumen yang dikamukakan auzlah lermasuk uamhav Iajah lempa| kqwian 5/N PG1f3n3NI>km01GKVH>mM0w “um sum ...n..mu .. mad a my a. unvmuhly -mm: flnunnlnl n. -Hum wrm (d) Eiarpun sm bemeluju dengan plhik pembelian mawa heuau |idak nampak pomtofrmpa:l_ namun sm telap dengan memnuannya hahawa kereta Perayu Ielall melanggar hahagian kin motnslkal slmau. [uh Hhal mukiiuril 39 Julia 2 Rakod Raynanl 5 says xmm klmu mm nnrrwnk Inmptl Dom! oi mvpnclpida ram K-m:!anVUn7 4 ssnw [sfla hhax muuasum to ma 2 Rekud Rayuan] 5 mm knmu dun x-nk dwlmwlv dun ..a.«.n km bannyian ma.-a Mm rvscbul ma mamau marostka/ksmtfl J Bahaglanlladlpan um 35 Berdasarkan kepada huvaiamhuralzn m atas. mahkamah um berpendapit penghuyahan pembelaan mengenax Isu Im adalah udak bevment as Setemsnw‘ Perayu (elah menghujankan bahawa swam memmar duma akibal keuedevaan semis di hahaglan kepaxa ekaran kegagaxan svmalx memakai kw! kelsdar Ada!-ah dzpalan mzhkamah Im hahavws memandangkan Perayu Ie\ah ummun an bawah s 43(1) Akla 333 nan bukannya 54111; Akla 333, make pennhmahan Perayu |enIang punca kemalwan man adalah |idak bevmem 37 Pe<aW ma te\ah menghnqahkan bahawa man ndak memmki lesen memandu pada mas: kemnan Berkawan penghufihan ml. bwarpun simali max memmki lesen memandu pada masa kejadlan, nsmun hdak ada apaapa keleranuan knnsislen danpada Perayu bahawa sunau telah menunggang rnoloswkal dengan mevhahaya memandangkan kelevangan Periyu adalah bevcanggahan amava 2. am PGwn3Nvkmo1GRvH>mMaw “Nun: sm.‘ ...u..mm .. mad w my .. mmm -mm; flwulnlnl n. IVMNG Wm! salu samu lain Inn was kalemnuan dan penghuphan men pmak pendakwaam adalah dapalan mankzmzh mi hzhzwz Pavayu mun munimbulkan amvar vani bsrllmln omaim blaaimana kemllannln terubul berliku 27 1 \/em panama 37.1 1 37.: 2 am PGIf3u3N|>km01GKVHmMI)w Pemyu menoakwa mowslkal smuan dmmggang dan arah bellawanan zvus dalzm hulalan sunau Isiah meaekan max secua mengejm (“apnoea elnslgsmy Dmka') mamswkalnya apahnz nampak karma Parlyu rnangalubalkan SP1 tefnelanlinn ks nmpan kerehl Perayu. Mun lmsohul adama dan kc u. ‘emergency nun“ mgamnaman dalnm gansan pullh x — G dalam Fl (mah kanv) Wauubasnimnnsnun, uemmn max vemvna 1.. mun dapalzn mankamnn nu hahnwa vavsl .m mun hemanggnhln dangan ka|er:ng:n Pavlyu dzlarrl Demarikiun mam: ltila \ma4 mukalurat 201 mu 2m mu Rayuan] — - kalau says an ovtmnt say: ax bamnnll sums: masuk nmamu, nun My! rumuak Aendtrun‘ Kl/Au an M; mm walauplm Ida mmman mm mmm Says um mum Yaw rays .1». amoll kw: ssmua pevanuan lam linlas, milsudnya mm maauk human den ksna amok hm kanan km salmlum mm nman murvamrknv ,...,.r.,.... 4 “Nut: sm.‘ ...u..mu .. mad w my a. mm; mm. flnulnlnl n. IFVLING wrm 3713 Make: kamangan Perayu menumukkan hshau Ielah menmemenman xevecanya sebelum masuk bulatan dan mellhzl ke kni, kanan dan kvi nag: memasnkan «ada kenderaan lam yang wan; di bulauan saaelum memasum bulacan Dan oleh keranaliada kenderaan lamda\am bulalan, Perayu nalan memasukl bulalan olen nu‘ mengnkm vsm panama Petayu sepalulnya akan nampak mulnsukal slmaln den sebelah km bulavan 37 2 Versv kedus Apanua nampik ksma Pafayu. snnan man msmukan malaswkzlnyz unluk Cuba melepasi dan memlmas kereca Periyu Mam gage! men nu‘ snmafi lerlepas nanma moluswkal (ersehut yang mengaklbalkan kedua-dna slmau uan SP1 lerpelaming ke hadauan kerela Ferayu Namun, lad: apz» apa penanngaran anlsvs kevela Parayu dengan mmoslkal sanam 31 3 Versv Kenya Ferayu manuikul Penamhunflan berlaku an amara kevala Parsyu uangan mmoinkal man mmah welsh muncadanikan kepadi SP7 tpegiwil penyxassl) dalam mukixurm 154 mu 2 Rekad Rayuan — 5 sum man man bsrvnuviran gumnar a. 97, c, 5 z r. plflnmlurlgan mm-ku dspan Myvv din mvgah molasrka/7 J Tmak sauna wenmnan dlhmbanl 5/N PG1f3n3NPkm01GKVH>mMI)w “um: s.n.n ...n..mn .. mad a mm .. MWMIHIV -mm: fluulnlnl n. mum wrm an Vemkssmpal 37 4.1 Versx Keempal um adalah bevkanan gavlsan pulm x —G a. vajah kasar Fl Fmak Perayu pada mulanya mananxan glnun puhh x - 5 mien man herelnn mulosukal s\mn1l Sehalknya ndalah kesan hvek mnles\ka\ nmall (ml: mun yam panama: wmauvun gambarraian (empalkejm: n (PI) (Idak menunjukkan kaian brak Iaynr momslknl man Tambahzn puxa menuvul sm, Iiyar molusvkal sunan adalah mam man aman mm x — G hukan bre« Iayar mcloswkal swan [ula man mukanural-mukaiurm 15 flan 16 mm 2 Rakod Rzyuzn] Semasa pennelksaan was sm 5 San halakan Mak ada motnsural kamn diners! ./ new p-:1: s Sara katakan keun x— 5 ml mm kesan emervency aaxe mam max kzmu sebab lion-libs 4:. Mn] Imzlomnr m Ilafllgan J rm mnuu Aarana Lanr ma wama mum 37.4.2 Nnnun‘ Mhak Fevlyu kemumannya man mennkarknn vets! benau dan mengakul maxoswxausimaxu wan msevel m a|as jalan dan mengaklhalkan pecuhzn / selpihzn pulih an an: man. 5/N PG1f3n3N|>km01GKVH>mM0w [sila hat mukasuraM5 mu 2 Rekod Rayuan] 21 “um sm.‘ ...u..mm .. mad a my a. mm-y -mm: flnuunlnl n. IFVLING wrm Semssa Delnlenkiaan halas SP1 5 Sobsmm my kamu my katuvnnynn molasiral wkerosakannw drssbefialv AM my borwama p-um part? may we sny. xmun nu mum knuv mm-meow Mm Isunocan Purina 1-rsnntdr mm J rm plslr [slla unax mukasum 47 mo 2 Rekod Rayuan] serum vermariksaan balas sr:1 s Ru/uk 9.90: mm, uyn mmn m gimbnr ml ma-pat psunan mm m ad:/zh serprhan mamskar» ¢ v. s sm mmmp-mm Mu inqaduklbul Iuvlan molosrkal Mk-an dcssoaokan penangnama J Ddnkpnslt [slla lmal mukasura! 46 mm 2 Rekod Riyuan} Semasa uermeriksaan halas sm s Sly: um... msrum vru um. kula mnfllvkanmpafah Say: cadingkan handle kanarv patan sebah selems molar mserer or scholar: mu, m. roqmn kn mu.» Ausrmn Inwvyubabknn nwqva mm yum 4 Ydakp-331: 5/N PGIf3u3N|>km01GKVHmMI)w “Nun: sm.‘ ...u..mu .. mad w my a. mm; mm. flnulnlnl n. -Hum; wrm as 39 an 41 Kaempal-empal vevsw flan kesamrunzn kelalangan Pevlyu sana kularzngan pendakwaan lelah dianlhna dan divarumbangknn olnh hakwu bvcara sacars \- belum haklm hbciri memhum flapalan bahawa kolerangan Pznayu bensnlangan dengan segala mum yang dwkemukakan m mahkamah hicava. Nasan pznghakvman haklm mcara Ielas menuruukxan Hakim mean lelah mengambll kna dan rnengamati / appreciate? kesemua keler3ngan—kemerangan yam; mks-nukakan m nadavarmya. Hakm bncara lelah lnembmcanglmn dengin «em: ketemngan mg mkemukakan man keduaduz plhak dan Inlelens yang dibual alehnya sena alasan-alasan bagl Imerens bevkenaan Halwn hmara wga Ielah mengambll makmm bahawa sm sebagal wax kapaua sxmafl ada\ah saksw belkepemingan Namun, hakim mcavaxelan membual dapzlan hahawa SP1 (idak belimhong dalam kelerangannya memandangkan keherangan sm aflalah dlsckong oxen kexerangan pendakwzan sepem P1 (gambar ya,an le'mya| kejamanj. F2 den P5 (gambsv-gambal) sevla P7 Uapolan Pusnakom). Bevdasarkan versmrsi beflainan yang salmg benaangqahan darn Perayu. rnaka mahkamah ml bersemu dengan flapman haklm mama banawa mahkaman blcava (Idak dapat mempercayal cema Pevayu (enlang bagawmana kamawangan nu berlaku Lemmabm Vagl tanpa bukli sokungan yang Vain yang Lflkemukakan oleh Ferayu [slla hhal mukasuval I2 JIIIG1 Rekod Rayuanl Sekanjulnya, pmak Pevayu ‘ugz lelah menghmahkan bahawa uaaa kelevangan dam nemakwaan nanawa Perayu lelah memanuu kerela flan aran benemangan anus lrafik alau pun mba memolong kendevaan atau pun memballayakan pengglma ‘a\anraya yang \am 25 am PGIfln'iNPkm01GKVH>mM0w “Nun: sm.‘ ,..u..mu .. mad a my ». mmm -mm; fluumunl n. IVMNG Wm! anau pun dalzm Kelaiuzn yang excessive Kes-kes sun x. fing v PP mm 5 cu m um Canmna Llm Xiang Kim v pp mm] 1 cu as Juaa wan dlnllnk. Adstah aapavan mahkamah um bzhavra penghwahan p ak Pevayu mengenax Isu ml auarah max bemlem memandsngkan elemelrelemsn ‘bznemangan ams halwk atzu pun ouba memckxng kendeman alau pun memhahayakan pengguna Jalanraya yang lam alau pun dalam kelajuan yang exL‘e5s1ve" um kesemuanya mun e\emen bag! palluduhan an hawah s.l1(1)Ak1a 333 42 Bag kemudahan pembaraan den xemaman 341(1) ma 333 adalah dmyatakan an bawah rm — Menyebabun mmn kemnn meminflu flulvgln mlimu allu mermahayiknn 41 n; M.na.n.n. Wang yang nwmaudu sualu lmnderaan rrmlor .1. plan flengun mdulu alau nonyan myuan aiau denga/v cam yang. mm mmgambu psmauan lsnlmg am my ken-man [twmusuk ,.n:., »....:...n dun m jnlan, dun xmm... mm min ymg Wtanvkakan vanvsda am mmwkfn ..1.anemn mt! mm»-y. henna.- many uwnrm manynclbhn Ir-malian mamnana cling, melalrukan mam kesatahan dzn zpamlz mam. hemlamah mnukum pewnru mm. Iampalv man mng dnnpafla L1... lnlnm .1... mm ream dot/pad! wpmun alum am am. max kurana danpadn nmn mu nnaga dun mamom dnnpndu dua pu/un rrbur/WW” (banekznm an-mbuhl 43 Dalam pada mu‘ seulzh mahkamah ml mengkau semma nova-not kelerangan sen: uaan panghakimzn, zdalah dapzlan mahkamall im bahnwa hskvm mom man mambufl mfarmu yang xah dan pemlmnn mukslma kasulunman hkla am |vvIerangan»kelerIngan sehanar @ sclualewdsnca dl hadapanny: HaK\m blcava was Ie\ah :7 am PG1f3n3NI>km01GKVH>mM0w “Nun: sum! ...n.mn .. mad n my a. unvmuhly -mm: flnulnlnl n. -Hum wrm 44 45 45. 47. barpeluang mwma-n mm man»: an pembalusn xemau maveka memhen kateringan m mahkamah man man permxwaan Dalam kmleks m. mahkamah ml menuuk kapada pmulp am yang dvpumskan oleh Mahkamah Fersekutuln m dalam Ln Ah sung I. Annr v pp [anon 5 cu 1: -ma apmaa. to be man by Um app-ma cowl whuv mung W. . Irma mun nnuxmanl ar aammy at mm... a will mam»: by man nu!/mantis: Th: mommy ola warm: mnvrmflwlorlnc muuaw An ltwelhls mm! mm u/way: he am m dmrumrnq sum /mdmvs of feel amvefl a! ray we wage was mu aumn- visual mama. at M: wlmees umsss IIIGIS zm wbuanlra! and compalmg masons Io! mpvaamg wulv m. amy- Winalunln amaann Olen nu mak aaa sehllang mnsan unluk mahkamah m. manginggu dapllan nam mum yang hevlindukan pad. ram dan urIdIng- Imdanfl yam: bum: Malah danauan mahkamah mi bihawi berpandukan unam- undanfl v-ng releuan kepada panemuamapacan lnkla bevkenaam haklm blur: lelah membuul kapulusan hslul apanila mandapall pendakwaan |aIah herpya membuklwkirl ken Iacsra pnma facts di pelingkal pandzhwaln, rnemlngg Purfiyu uniuk membela an uma rnensabvlkan Fevayu Mm, mahkamah nu menolak rayuan Pomyu xumaaan Sabnan aan mengesahkan saman nakim biarz Berkanlan pm: dengln rlyunn xemam hukmnnn. pmak Pemyu mangmqanuaa hahawa hnklm hwcala |a\zh manjaiuhkan hukumnn yang sxcsssrve -adangm Inn Idalah mevupakln keunanan panama Pariyu Hukuman yanfi an luhkan o\eh naum mun Idalah vemava nlaml sembnan (9) bulan aan Qankh mun mum, 2: am PGIf3u3N|>km01GKVHmMI)w «ma. sum nlnburwm a. mad a my a. wwmnhli MIN: flnulnlnl via IFVLING wrm denaa sebanyak RMs.ooMo nka qaual hayar 12 bulan pelqzm, pzmpasan sebanyak RM3,50U»00 dmayar kepada keluarua mangsa din Vesen memandu Perayu diendovskan 4: Dalam zhsan penghaklman, blirpun ham bnciri mznyalakzn saalah undanwnuang mzntap pesalnh penami xebmeh-bmehnyl duauhkan danpada hukuman pememaraan‘ namun hakrm hicam lelah menpa|uhkan hukuman pemenjalaan selama 9 bulan dari lankh paluh mum ks atas Perayu Alasan hakim mcara wnuax demwkian adalah kerana sualu permcaraan pemm |elah mjalankan dengan kehaduran 3 many saksl 49 Eenkman kes Bun Ln Chan -4 PP‘ Mahkamah Rayuan (elah mzmutuskan nanawa w. appwam cowl show! u. Kluw m mmm mmm m. xanturrcv pasaaa bylhe lower mun unless m mamiastfy wvwvgm 1». ma» D7 mgmegavararoamg muuaora m more the ram amcmmslances m nwre my me! anomovcovrl mm pass 2 mlmenlxenlencenx nut nrsasaulofllvsuupe/Valacaunmlanarzncsllnnmu/mufllppbullw wlmclprmclplnm ma Asausmanlo/mu sunlumx - so Bellandaskan kes Bun Ll! Shun (supl-I), mnnkunah mi mendlpzd hukumin yang dljaluhkan ke ails Pevayu khasnya hukuman ptmemaraln mama 9 man dzn Iankh ;a|uh hukum anaxan manifest/y messwe memandlnukan Periyu zdalah peaaxan panama Mann huklm mean bag: hukuman pemeniaiaan yngz adz\ah (idzk want (“Am/usltfleclj. Labm-Iebm lam, uuak iepsm s 41(1)/-\kla 33:. hukuman nemenjaman hukan mandaton an bawah 543(1) Ana yang sama. Ma\ah dan susunan hukuman m hawah sum hukuman pemeruaraan a\1a\ah puman |erakhir selepas hukuman denda Juga tempch pemaluaraan idllih wax melemhu 12 bulan 1! am PG1f3n3N|>km01GKVH>mM0w “Nun: sum ...u..mm a. mad a my a. mm-y -mm: flnuununl a. IFVLING wrm 51 Daflam ms nu, hukuman Dewar: xehma 9 hulan din lavkh Jam hukum dnkaiennkan Huxumammkuman danda sabanyak RM6.000- no pka gagax bayar 12 hula" peniara‘ pampisan sebanyak aM:4.5ocmo dibayir kevada xemms manssi flan Vesen memanflu Perayu asenaerskan dlkekalkan Bellavlm pa 7» Ogos 2023 (YA. u .wENnvo su GNEE) Mahkamah Tmggi Shz Nam (Jenayah 5) Pmak—pmak Peguam Perayu: R Nelhap Raye! danpada Teman R Nemam Rayer 3. Ca. Responflerr Puan Mary Phoan Kea| M22, Tlmbalan Psndakwa Raya danpada Kamar PenasIha| Undang-Undang Negen Se\angor m pe..«m~vmo« GRvH>mMow “Nun: sm.‘ ...u..mm .. mad a my .. mmm -mm; fluulnunl n. IVMNG Wm! 191). gambuv Iempm kejadluw [P2(A-F) dan P51»:-AH)‘ lapavan pemhalnn (P67 dun Vupnvan Puspzkom [P71A—C)[ Pad: am: kes pemaxwasn, hakwm bmarz mmdzpau pihak pendakwazn lelan herjayz membusmm ke: puma Iacre Iemadap Peviyu din memsnggul Petayu unluk membela dm Nasan penghaklman mequnjukkan nakxm blcam lelan memhua| Inlelens henkut danpafla kelerangalrketerangan sakusaksi Pendzkwaan sefla exsmm-euwm yang dnkanukakan sehelum memuluskan Hes prrma vane fllhuknkan Iemadzp Perayu (swla mm mukasural189 490 Julia I Rekod Rlyuln) {at (D! Ye] M SP1 xeaagarsaksryarvgberioa aw lvmpal Iuafidtan sum man a dalzm kamllnrrqnn lerssbul mm msngalarm koeodar-Ian Man mallhar cm pemalvduln Yuuaauh ylng nun mm a.m..4 4.” max mumban Dsmaltan kapldl DIM wvwummn my. ynnv /Am Mink-mm mm minvlmbd m»-mm mm svr mam: war kvpodl marlgsa dan bolsh Wanpgau mm, sails: Imlraptnlmvenrn datum m m. 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Tika 2.6.0 & Pytesseract-0.3.10

JA-12ANCvC-69-07/2022

PERAYU THOR TEIK SENG -Berniaga di atas nama dan gaya GARDEN STEAMBOAT RESTAURANT (No. Syarikat 200103032578/JM0332960-P) RESPONDEN 1. ) KCSB KONSORTIUM SDN BHD 2. ) TEKAD URUS SDN BHD

Civil procedure - These are two appeals against decision of the Sessions Court Judge who allowed the Respondents’ application pursuant to O. 14A of the Rules of Court 2012.Compulsory acquisition - once a compulsory acquisition of a land has been decided as invalid by a court and there is no appeal against such decision, then the land must be reverted to its original owner as if the acquisition was never in place and of no effect - it is incumbent upon the land administrator to revert the land to its original registered owner despite the issuance of Form K and the absence of any order of the court on the reversion. The failure of the land administrator in doing so would render the land becomes a state land and would deprive the owner of his land.Land acquisition - the absence of any provision in the LAA requiring the state authority to revert the land after an acquisition of a land has been declared as invalid ought not to be understood or taken to mean that there is no such duty imposed on the state authority. The absence of such a provision ought not to be regarded as a cloak under which the state authority can let such land remains as a state land - notwithstanding the title of the Land was extinguished, the 1st Respondent is the equitable owner of the Land who has the full right to the Land as the extinguishment was clearly based on the invalid-declared acquisition Estoppel - s. 116 of the EA underscores that a tenant is estopped to question the landlord’s title of the premises on which he is renting so long as the possession of the premises is not surrendered to the landlord - the statutory estoppel provided by s. 116 of the EA is applicable as long as the possession of the Sublots has not surrendered to the Respondents notwithstanding the tenancy was not renewed.

26/11/2023

YA Dato' Sri Shamsulbahri bin Haji Ibrahim

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=eca5b04f-e412-431e-bd81-9c0fe6351f45&Inline=true

Microsoft Word - GOJ APPEAL TENANCY GOH JA-12ANCvC-68-072022 .docx 1 DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA RAYUAN NO. JA-12ANCvC-68-07/2022 ANTARA GOH CHOON WHEY (Berniaga di atas nama dan gaya SIN WHEY TECH MOTOR TRADING) …PERAYU DAN 1. KCSB KONSORTIUM SDN BHD …RESPONDEN PERTAMA 2. TEKAD URUS SDN BHD …RESPONDEN KEDUA (DALAM MAHKAMAH SESYEN DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA GUAMAN NO. JA-A52NCvC-40-03/2021 ANTARA 1. KCSB KONSORTIUM SDN BHD …PLAINTIF PERTAMA 2. TEKAD URUS SDN BHD …PLAINTIF KEDUA DAN GOH CHOON WHEY (Berniaga di atas nama dan gaya SIN WHEY TECH MOTOR TRADING) …DEFENDAN) 26/11/2023 10:27:10 JA-12ANCvC-69-07/2022 Kand. 23 S/N T7Cl7BLkHkO9gZwP5jUfRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 (Heard together with) DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA RAYUAN NO. JA-12ANCvC-69-07/2022 ANTARA THOR TEIK SENG (Berniaga di atas nama dan gaya GARDEN STEAMBOAT RESTAURANT) …PERAYU DAN 1. KCSB KONSORTIUM SDN BHD ...RESPONDEN PERTAMA 2. TEKAD URUS SDN BHD …RESPONDEN KEDUA (DALAM MAHKAMAH SESYEN DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA GUAMAN NO. JA-A52NCvC-42-03/2021 ANTARA 1. KCSB KONSORTIUM SDN BHD …PLAINTIF PERTAMA 2. TEKAD URUS SDN BHD …PLAINTIF KEDUA DAN THOR TEIK SENG (Berniaga di atas nama dan gaya GARDEN STEAMBOAT RESTAURANT) …DEFENDAN) S/N T7Cl7BLkHkO9gZwP5jUfRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 GROUNDS OF JUDGMENT Introduction [1] These are two appeals arising from the same facts, issues and subject matter where the Appellants have appealed against the respective decisions of the learned Sessions Court Judge (“SCJ”) who allowed the Respondents’ applications pursuant to O. 14A of the Rules of Court 2012 (“ROC”). [2] As a brief background of facts, the 1st Respondent, KCSB Konsortium Sdn Bhd (“KCSB”) is the registered proprietor of a land held under PN 11044 Lot Mukim Plentong, Johor Bahru (“Land”). The Land was subdivided into sublots (“sublots”) and rented out to individuals. The 2nd Respondent, Tekad Urus Sdn Bhd (“TUSB”) was appointed by KCSB vide a Power of Attorney dated 13.4.2012 to manage the tenancy of the sublots. Facts in the Appeal No. JA-12ANCvC-68-07/2022 [3] For the Appeal No. JA-12ANCvC-68-07/2022 (“Appeal No. 68”), vide a tenancy agreement dated 29.10.2013, between TUSB and Goh Choon Whey (“Goh”), one of the sublots known as Parcel 39 Lot 1876, Jalan Kota Tinggi, Johor Bahru (“Parcel 39”) was rented to Goh for a period of one year with effect from 1.12.2013 until 30.10.2014. The tenancy of Parcel 39 was further extended on a month-to-month basis upon the agreement of both parties. [4] In the Appeal No. JA-12ANCvC-69-07/2022 (“Appeal No. 69”), except for the sublot number involved is Plot 1 Lot 1876, Taman Desa Perwira, Johor Bahru (“Plot 1”), the tenancy agreement between TUSB S/N T7Cl7BLkHkO9gZwP5jUfRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 and Thor Teik Seng (“Thor”) is similar to the tenancy agreement between TUSB and Goh. Similarly, the tenancy period also was extended on the month-to-month basis as agreed by both parties. For ease of reference, Parcel 39 and Plot 1 are referred to as “Sublots”. [5] At the end of 2016, the State Government of Johor had embarked to acquire the Land. On 15.2.2017, the Form K of the Land Acquisition Act 1960 (“LAA”) was issued to KCSB. Dissatisfied with the quantum of compensation awarded by the Land Administrator, KCSB filed an application for land reference at the Johor Bahru High Court. [6] On 8.8.2019, based on the question of law raised by the learned High Court Judge himself and submissions by counsels for respective parties during the land reference proceedings, the Judge held that the Forms G and H of the LAA issued by the Land Administrator dated 3.11.2016 were invalid on the ground that they were issued without giving the interested parties a chance to be heard (see KCSB Konsortium Sdn Bhd v. Pentadbir Tanah Johor Bahru [2020] 3 CLJ 112). [7] Then, the State Government filed an appeal against such decision but the appeal was later withdrawn (see the letter from the Johor State Legal Adviser’s Office dated 22.6.2022 at page 114 of the Record of Appeal). [8] Back to the tenancy matter, as both Goh and Thor failed to pay the rentals despite the continuation of staying and running businesses on the Sublots, on 12.3.2021, KCSB and TUSB filed two separate suits at the Johor Bahru Sessions Court against Goh and Thor, respectively claiming for the outstanding rentals and late payment interest. S/N T7Cl7BLkHkO9gZwP5jUfRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 [9] After Goh and Thor had filed their Statements of Defence, on 24.3.2022, KCSB and TUSB filed the issues to be tried in enclosure 13 which contained the following two issues: (a) whether KCSB and TUSB are entitled to claim for the rentals from Goh and Thor; and (b) whether the right of KCSB and TUSB in claiming for the rentals can be disputed by Goh and Thor. [10] On 6.4.2022, with a view that the issues to be tried can be determined pursuant to O. 14A of the ROC, KCSB and TUSB filed the relevant applications which later were granted by the SCJ. Parties’ arguments [11] The Appellants contended that the SCJ was wrong in allowing the Respondents’ applications under O.14A of the ROC as the applications failed to meet the threshold required by the Order namely there are disputed material facts as follows: (a) there is a material dispute on the ownership of the Land. The Appellants argued that once Form K was issued by the Land Administrator on 15.2.2017, the acquisition of the Land was completed and the land title of the Land was extinguished. The Land now became the state land and is not owned by KCSB; and S/N T7Cl7BLkHkO9gZwP5jUfRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 (b) the rental arrears are disputed since the Land was not owned by KCSB. Suitability of these applications be disposed of by way of O. 14A [12] For ease of reference, I reproduce O. 14A r. 1 of the ROC – Determination of questions of law or construction (O. 14A, r. 1) 1. (1) The Court may, upon the application of a party or of its own motion, determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that — (a) such question is suitable for determination without the full trial of the action; and (b) such determination will finally determine the entire cause or matter or any claim or issue therein. (2) On such determination the Court may dismiss the cause or matter or make such order or judgment as it thinks just. (3) The Court shall not determine any question under this Order unless the parties have had an opportunity of being heard on the question. (4) The jurisdiction of the Court under this Order may be exercised by a Registrar. (5) Nothing in this Order shall limit the powers of the Court under Order 18, rule 19 or any other provisions of these Rules.”. S/N T7Cl7BLkHkO9gZwP5jUfRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 [13] On the significance, principles and conditions of O.14A, I can do no better than to reproduce the summary of these by Muniandy Kannyappan J in Kok Kon Sang v. CIMB Bank Berhad [2023] 1 LNS 740 as follows: [9] For that to take place, on plain reading of O. 14A ROC as well as case authorities which are applicable and binding on this court, succinctly elaborating on the operation and enforceability of O. 14A entails, in order for this court to exercise its power to summarily dispose of an action, there shall be no dispute between plaintiff and defendant on the relevant and material facts pleaded in the pleadings. [10] Jurisprudence applicable in order to deal with an application under Order 14A ROC, which is a summary procedure is laid down in the rule itself to dispose of the case altogether after determining it on a point of law. By virtue of proceeding under Order 14A ROC, this court in fact would consider and determine a point of law which has arisen from facts of the case, premised on the pleadings as well as the available affidavit evidence explaining the transaction in issue. If that point of law is finally resolved, it would be unnecessary for an open court trial. The determination on point of law would also have the effect of declaring rights of the parties. Application and enforceability of Order 14A ROC is demonstrated by the following principles of law, distilled from the rule itself as well as decided case authorities explaining construction of the said rule, which is the following:  Pursuant to Order 14A, the court will determine questions of law when it appears to the court that such question can be determined without a full trial.  The determining factors will be derived from the facts disclosed by the pleadings and affidavit evidence which must be sufficient for the court to make such determination. S/N T7Cl7BLkHkO9gZwP5jUfRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 8  The Federal Court in the case of Thein Hong Teck & Ors v. Mohd Afrizan Husain & Another Appeal [2012] 1 CLJ 49 decided that, it is trite that O. 14A could only be resorted to if there was no dispute by parties as to the relevant facts, or the court concluded that the material facts were not in dispute.  The Court of Appeal in the case of Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2007] 6 CLJ 741 decided that Order 14A is not a tool where the court is required to interpret the statement of claim to decide what point of law arises before deciding on it. An Order 14A application is to decide clear points of law or construction that are apparent on the pleadings. The points of law to be determined thereunder must be stated in clear and precise terms.  The Federal Court in Kerajaan Negeri Kelantan v. Petroliam Nasional Bhd & Other Appeals [2014] 7 CLJ 597 ruled that a court, in determining an Order 14A application, should consider whether the action is suitable to be disposed of by way of Order 14A application and whether the material facts are not in dispute. [11] Thus, to iterate, a successful Order 14A application shall satisfy the following requirements: (i) The defendants have entered an appearance to the writ. (ii) The question of law or construction is suitable for determination without a full trial of the action. (iii) Such determination will be final to the entire cause or matter or any claim or issue therein. S/N T7Cl7BLkHkO9gZwP5jUfRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 (iv) There is no dispute as to all necessary and material facts relating to the subject matter of the question when the court proceeds to determine the question. (v) The parties have had an opportunity of being heard on the question of law. [14] In the present appeals, looking at the triable issues filed in the proceedings in the Sessions Court, it is clear that the nub of the applications is to determine whether the 1st Respondent is the owner of the Land or the Land has become a state land despite the compulsory acquisition of the Land was decided by the High Court as invalid. Therefore, I agree with the SCJ that such question is undoubtedly suitable for determination without the full trial of the action. Whether the 1st Respondent is still the owner of the Land [15] The Appellants contended that the Land had become the state land once Form K was issued by the Land Administrator. The original title of the Land was extinguished after the issuance of Form K. As such, in the absence of a new issue document of title, the Land is a state land and the 1st Respondent is no longer the owner of the Land. [16] To support their argument, the Appellants referred to the Federal Court case of Orchard Circle Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Ors [2021] 1 CLJ 1; [2021] 1 MLJ 180 where it was decided in para 39 that “in our present case, not only that the lands have been taken possession of, by the State Authority, it has already been vested in the State Authority. Once the lands are vested with the State Authority, there are no provisions in the LAA to revert the lands back to the owner”. S/N T7Cl7BLkHkO9gZwP5jUfRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 [17] It is pertinent to look at the backdrop of Orchard Circle case in which the appellant’s two lands were acquired by the state authority for the purpose of building the Kajang Traffic Dispersal Highway ('SILK Highway') where Form D of the LAA was issued on 10.12.2001 and an inquiry before the land administrator was held on 24.12.2002. As the compensation was a nominal RM1 because a portion of the lands had already been surrendered to the state authority, on 30.1.2003, Orchard Circle filed an application for judicial review (“first judicial review application”) in the High Court for an order, amongst others, to quash the first award of compensation and alternatively for a declaration that the acquisition of the lands was null and void. [18] On 10.12.2010 (after nine years from the date of Form D and 7 years from the date of filing of the judicial review application), the High Court allowed the first judicial review application and ordered a certiorari to quash the first award and a mandamus to remit the matter back to the land administrator for a fresh second land inquiry. Hence, on 17.2.2011 to 17.11.2011, an inquiry was conducted by the land administrator (“second land inquiry”). On 24.4.2012, the land administrator in the second land inquiry made the following orders; (i) the issue in relation to a lapsed Form D did not arise as his award was but an extension of the first award when the High Court in the first judicial review application ordered for a fresh land inquiry; (ii) 17,284.67 sqm of the lands were surrendered to the state authority and a nominal compensation of RM1 was awarded for the surrendered portion; and (iii) 1,839.10 sqm of the lands were not surrendered hence RM514,948 was awarded for this portion ('the second award'). S/N T7Cl7BLkHkO9gZwP5jUfRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 [19] Dissatisfied with the decision of the land administrator in the second land inquiry, Orchard Circle filed the second judicial review application on 30.5.2012 (“second judicial review application”). In this second judicial review application, the High Court in allowing the application made the following orders, inter alia (i) pursuant to s. 8(4) of the LAA, the validity of Form D was only for a period of two-years from the date of its publication in the Gazette. In this case, the second award was handed down nine years after the expiration of Form D and as a result, Form D, Form G and Form H and all proceedings following thereon were quashed; (ii) that Orchard Circle was the lawful proprietor of the lands and was entitled to possession thereof; (iii) dismissing Orchard Circle's alternative prayers for a declaration that there was no surrender of 17,284.67 sqm and (iv) dismissing Orchard Circle's reliefs for, inter alia, damages. [20] Dissatisfied with the decision of the High Court, Orchard Circle appealed against the decision to the Court of Appeal on the refusal to award damages and the respective respondents appealed against the decision allowing the second judicial review application. In a unanimous decision, the Court of Appeal held that Form D dated 10.12.2001 and all acquisition proceedings were valid. [21] Orchard Circle later appealed against the decision of the Court of Appeal to the Federal Court where the apex court in dismissing Orchard Circle’s appeal held that Form D shall lapse and cease to be of any effect if the land administrator had not made an award within two-years from the date of Form D. The facts showed that the first award was well within the two-year period of Form D. It was, however, unfortunate that the high court took almost seven years to make a determination on the first judicial review application filed by Orchard Circle. Given the factual matrix of the S/N T7Cl7BLkHkO9gZwP5jUfRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 case, the Federal Court held that it could not be said that the land administrator in the second land inquiry had contravened s. 8(4) of the LAA when it made the second award beyond the two year period as stipulated. The second land inquiry was only to substitute the first land inquiry as the issue of the land acquisition and taking possession of the lands and Form D were never declared as null and void by the court. [22] Back to the instant appeals, it is clear that the material facts herein are different from in Orchard Circle. In that case, the compulsory acquisition was done in 2001 and the SILK Highway was duly completed when the Federal Court delivered the judgment in November 2020. There was no issue of defective or invalid forms issued by the land administrator up to the issuance of Form K. In that case, s. 66 of the LAA is undoubtedly applicable. Whereas in the present appeals, the acquisition was commenced in 2016 and in 2019 (three year later) the high court declared that the acquisition of the Land was invalid due to the defective and invalid Form G which led the invalidity of subsequent forms including Form K. Furthermore, the state authority had abandoned the acquisition. As such, with respect, it is my considered view that the decision in Orchard Circle should not serve as a binding precedent in the present appeals. [23] In addition, it is my view that once a compulsory acquisition of a land has been decided as invalid by a court and there is no appeal against such decision, then the land must be reverted to its original owner as if the acquisition was never in place and of no effect. It is incumbent upon the land administrator to revert the land to its original registered owner despite the issuance of Form K and the absence of any order of the court on the reversion. The failure of the land administrator in doing so would render the land becomes a state land and would deprive the owner of his S/N T7Cl7BLkHkO9gZwP5jUfRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 land. If this happens, it is clearly an infraction of Art. 13 of the Federal Constitution which reads – Rights to property 13. (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 [24] For the present appeals, if the Land is now a state land as contended by the Appellants despite the High Court ruled that the acquisition of the Land was invalid, undoubtedly the 1st Respondent had been flagrantly deprived of its property not only not in accordance with law but also with no compensation awarded. [25] It is my view that the absence of any provision in the LAA requiring the state authority to revert the land after an acquisition of a land has been declared as invalid ought not to be understood or taken to mean that there is no such duty imposed on the state authority. The absence of such a provision ought not to be regarded as a cloak under which the state authority can let such land remains as a state land. As for these instant appeals, the pivotal matter is concerned with the right to property which is one of the fundamental rights guaranteed by the Federal Constitution. Thus, when the acquisition of the 1st Respondent’s land was declared as invalid and the state authority has abandoned the acquisition, the Land must, by whatever means, be reverted by the State Authority or the Land Administrator to the 1st Respondent. S/N T7Cl7BLkHkO9gZwP5jUfRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 [26] Another point to highlight is that notwithstanding the title of the Land was extinguished, the 1st Respondent is the equitable owner of the Land who has the full right to the Land as the extinguishment was clearly based on the invalid-declared acquisition. In short, the extinguishment of the Land does not affect the exclusive right of the 1st Respondent to deal with the Land. Whether the Appellants are estopped from denying the 1st Respondent as the land owner [27] Another important point raised by the Respondents is that the Appellants are estopped from denying the fact that 1st Respondent is the owner of the Land based on s. 116 of the Evidence Act 150 (“EA”) which says – Estoppel of tenant and of licensee of person in possession 116. No tenant of immovable property, or person claiming through the tenant, shall during the continuance of the tenancy be permitted to deny that the landlord of that tenant had at the beginning of the tenancy a title to the immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that that person had a title to such possession at the time when the licence was given. [28] It has to be noted that as at the date of hearing of these appeals, the Appellants still occupy and run businesses on the Sublots without paying the rentals to the Respondents. [29] It is my view that s. 116 of the EA underscores that a tenant is estopped to question the landlord’s title of the premises on which he is renting so long as the possession of the premises is not surrendered to S/N T7Cl7BLkHkO9gZwP5jUfRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 the landlord (see Big Blue Taxi Facilities Sdn Bhd v. Pusat Pembangunan Reka Bentuk (M) Sdn Bhd [2018] 1 LNS 1574; [2018] 9 MLJ 147, Wee Tiang Yap v. Chau Chan Brothers [1984] 1 CLJ Rep 433; [1984] 1 CLJ 156; [1986] 1 MLJ 47, Singma Sawmill Co Sdn Bhd v. Asian Holdings (Industralised Buildings) Sdn Bhd [1979] 1 LNS 96; [1980] 1 MLJ 21 and Rosman bin Hj. Abdul Rashid v. Rosmah Begum bte Bahadur Beg [1994] 2 CLJ 101; [1993] 2 MLJ 196). [30] The Appellants argued that s. 116 of the EA is not applicable as the tenancy agreements for the Sublots were not renewed. With respect, I find the argument is misconceived. The statutory estoppel provided by s. 116 of the EA is applicable as long as the possession of the Sublots has not surrendered to the Respondents notwithstanding the tenancy was not renewed. In this regard, I draw support from the case of Sebumi Magnetik Sdn. Bhd v. Mohd. Sukri Saenong & Ors [2015] 1 LNS 156 where in that case the defendants had rented the plaintiff’s land via a Concession Agreement entered into between them. Regardless of not renewing the agreement, the defendants still continued occupying the land without paying the management fee and rental to the plaintiff. Ravintharan J (now JCA) in allowing the plaintiff’s application for summary judgment had this to say – In the Privy Council case of B Kunwar v. D Ranjit Singh AIR 1915 PC 96 Sir George Farwell said as follows at page 98 in considering section 115 of the Indian Evidence Act which is in pari materia with section 116 of our Evidence Act 1950 (cited in Wee Tiang Yap v. Chan Chan Brothers [1984] 1 CLJ Rep 433; [1986] 1 MLJ 47): The other point in the case is one of estoppel. The property was let by the plaintiff to defendant Ranjit Singh; he was let into possession by the S/N T7Cl7BLkHkO9gZwP5jUfRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 plaintiff's gardener Bhairon, on her behalf and by her direction, and he regularly paid rent to her and applied to her do all the necessary repairs; he has never given up possession to her although he duly received notice to quit, and he has denied her title. Section 116 of the Indian Evidence Act is perfectly clear on the point, and rests on the principle well established by many English cases, that a tenant who has been let into possession cannot deny his landlord's title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord. In the instant case, the defendants are still in occupation of a portion of the Food Square area. In the premises, they are forbidden by section 116 to question the title of the plaintiffs. Therefore, the question whether the Concession Agreement had been renewed or otherwise should not be the concern of the defendants. It follows that it would be pointless to allow the issue of renewal of the Concession Agreement to go for trial. For sake of completeness, I must also address that the argument of the defendants that estoppel by tenancy was not pleaded. In my view, it is not fatal as it is pure question of law and therefore it is not fatal if not pleaded. Conclusion [31] Notwithstanding Form K was issued pertaining to the Land and extinguishment of the land title was done, it did not affect the 1st Respondent’s ownership of the Land as its compulsory acquisition was invalid and of no effect. The 1st Respondent is the equitable owner of the Land. In addition, by virtue of s. 116 of the EA, the Appellants are prevented from denying the 1st Respondent’s ownership of the Land as the former have not restored the possession of the Sublots by surrendering them to the latter. Hence, there is no dispute that the 1st Respondent is the proprietor of the Land. Flowing from this finding, I find that there is no doubt that the 2nd Respondent is entitled to claim the outstanding rentals together with the late payment interest. S/N T7Cl7BLkHkO9gZwP5jUfRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 [32] Based on my reasons adumbrated above, there is no ground for this court to interfere with the SCJ’s finding that the issues to be tried in the proceedings are suitable for determination pursuant to O. 14A of the ROC and it would be unnecessary for an open court trial. Therefore, I dismiss the Appellants’ appeals with costs. Dated: 24.11 .2023 -SIGNED- (SHAMSULBAHRI BIN HAJI IBRAHIM) Judge, High Court of Malaya, Johor Bahru Counsels:  For the Appellants - Gan Techiong (Wong Wan Ting with him); Messrs. Gan & Lim  For the Respondents - Lim Kien Huat; Messrs. Lee & Lim Cases referred to:  Big Blue Taxi Facilities Sdn Bhd v. Pusat Pembangunan Reka Bentuk (M) Sdn Bhd [2018] 1 LNS 1574; [2018] 9 MLJ 147,  KCSB Konsortium Sdn Bhd v. Pentadbir Tanah Johor Bahru [2020] 3 CLJ 112  Kok Kon Sang v. CIMB Bank Berhad [2023] 1 LNS 740  Orchard Circle Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Ors [2021] 1 CLJ 1; [2021] 1 MLJ 180  Rosman bin Hj. Abdul Rashid v. Rosmah Begum bte Bahadur Beg [1994] 2 CLJ 101; [1993] 2 MLJ 196 S/N T7Cl7BLkHkO9gZwP5jUfRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 18  Sebumi Magnetik Sdn. Bhd v. Mohd. Sukri Saenong & Ors [2015] 1 LNS 156  Singma Sawmill Co Sdn Bhd v. Asian Holdings (Industralised Buildings) Sdn Bhd [1979] 1 LNS 96; [1980] 1 MLJ 21  Wee Tiang Yap v. Chau Chan Brothers [1984] 1 CLJ Rep 433; [1984] 1 CLJ 156; [1986] 1 MLJ 47 Legislations referred to:  Evidence Act 150 - s. 116  Federal Constitution - Art. 13  Rules of Court 2012 - O. 14A r. 1 S/N T7Cl7BLkHkO9gZwP5jUfRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

JA-12ANCvC-68-07/2022

PERAYU GOH CHOON WHEY (Berniaga di atas nama dan gaya SIN WHEY TECH MOTOR TRADING (No Syarikat 199703037561/JM0259319-X) RESPONDEN 1. ) KCSB KONSORTIUM SDN BHD 2. ) TEKAD URUS SDN BHD

Civil procedure - These are two appeals against decision of the Sessions Court Judge who allowed the Respondents’ application pursuant to O. 14A of the Rules of Court 2012.Compulsory acquisition - once a compulsory acquisition of a land has been decided as invalid by a court and there is no appeal against such decision, then the land must be reverted to its original owner as if the acquisition was never in place and of no effect - it is incumbent upon the land administrator to revert the land to its original registered owner despite the issuance of Form K and the absence of any order of the court on the reversion. The failure of the land administrator in doing so would render the land becomes a state land and would deprive the owner of his land.Land acquisition - the absence of any provision in the LAA requiring the state authority to revert the land after an acquisition of a land has been declared as invalid ought not to be understood or taken to mean that there is no such duty imposed on the state authority. The absence of such a provision ought not to be regarded as a cloak under which the state authority can let such land remains as a state land - notwithstanding the title of the Land was extinguished, the 1st Respondent is the equitable owner of the Land who has the full right to the Land as the extinguishment was clearly based on the invalid-declared acquisition Estoppel - s. 116 of the EA underscores that a tenant is estopped to question the landlord’s title of the premises on which he is renting so long as the possession of the premises is not surrendered to the landlord - the statutory estoppel provided by s. 116 of the EA is applicable as long as the possession of the Sublots has not surrendered to the Respondents notwithstanding the tenancy was not renewed.

26/11/2023

YA Dato' Sri Shamsulbahri bin Haji Ibrahim

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=d8c5723d-bc0d-406a-a3d0-e78c4d0b9404&Inline=true

Microsoft Word - GOJ APPEAL TENANCY GOH JA-12ANCvC-68-072022 .docx 1 DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA RAYUAN NO. JA-12ANCvC-68-07/2022 ANTARA GOH CHOON WHEY (Berniaga di atas nama dan gaya SIN WHEY TECH MOTOR TRADING) …PERAYU DAN 1. KCSB KONSORTIUM SDN BHD …RESPONDEN PERTAMA 2. TEKAD URUS SDN BHD …RESPONDEN KEDUA (DALAM MAHKAMAH SESYEN DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA GUAMAN NO. JA-A52NCvC-40-03/2021 ANTARA 1. KCSB KONSORTIUM SDN BHD …PLAINTIF PERTAMA 2. TEKAD URUS SDN BHD …PLAINTIF KEDUA DAN GOH CHOON WHEY (Berniaga di atas nama dan gaya SIN WHEY TECH MOTOR TRADING) …DEFENDAN) 26/11/2023 10:26:37 JA-12ANCvC-68-07/2022 Kand. 24 S/N PXLF2A28akCj0OeMTQuUBA **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 (Heard together with) DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA RAYUAN NO. JA-12ANCvC-69-07/2022 ANTARA THOR TEIK SENG (Berniaga di atas nama dan gaya GARDEN STEAMBOAT RESTAURANT) …PERAYU DAN 1. KCSB KONSORTIUM SDN BHD ...RESPONDEN PERTAMA 2. TEKAD URUS SDN BHD …RESPONDEN KEDUA (DALAM MAHKAMAH SESYEN DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA GUAMAN NO. JA-A52NCvC-42-03/2021 ANTARA 1. KCSB KONSORTIUM SDN BHD …PLAINTIF PERTAMA 2. TEKAD URUS SDN BHD …PLAINTIF KEDUA DAN THOR TEIK SENG (Berniaga di atas nama dan gaya GARDEN STEAMBOAT RESTAURANT) …DEFENDAN) S/N PXLF2A28akCj0OeMTQuUBA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 GROUNDS OF JUDGMENT Introduction [1] These are two appeals arising from the same facts, issues and subject matter where the Appellants have appealed against the respective decisions of the learned Sessions Court Judge (“SCJ”) who allowed the Respondents’ applications pursuant to O. 14A of the Rules of Court 2012 (“ROC”). [2] As a brief background of facts, the 1st Respondent, KCSB Konsortium Sdn Bhd (“KCSB”) is the registered proprietor of a land held under PN 11044 Lot Mukim Plentong, Johor Bahru (“Land”). The Land was subdivided into sublots (“sublots”) and rented out to individuals. The 2nd Respondent, Tekad Urus Sdn Bhd (“TUSB”) was appointed by KCSB vide a Power of Attorney dated 13.4.2012 to manage the tenancy of the sublots. Facts in the Appeal No. JA-12ANCvC-68-07/2022 [3] For the Appeal No. JA-12ANCvC-68-07/2022 (“Appeal No. 68”), vide a tenancy agreement dated 29.10.2013, between TUSB and Goh Choon Whey (“Goh”), one of the sublots known as Parcel 39 Lot 1876, Jalan Kota Tinggi, Johor Bahru (“Parcel 39”) was rented to Goh for a period of one year with effect from 1.12.2013 until 30.10.2014. The tenancy of Parcel 39 was further extended on a month-to-month basis upon the agreement of both parties. [4] In the Appeal No. JA-12ANCvC-69-07/2022 (“Appeal No. 69”), except for the sublot number involved is Plot 1 Lot 1876, Taman Desa Perwira, Johor Bahru (“Plot 1”), the tenancy agreement between TUSB S/N PXLF2A28akCj0OeMTQuUBA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 and Thor Teik Seng (“Thor”) is similar to the tenancy agreement between TUSB and Goh. Similarly, the tenancy period also was extended on the month-to-month basis as agreed by both parties. For ease of reference, Parcel 39 and Plot 1 are referred to as “Sublots”. [5] At the end of 2016, the State Government of Johor had embarked to acquire the Land. On 15.2.2017, the Form K of the Land Acquisition Act 1960 (“LAA”) was issued to KCSB. Dissatisfied with the quantum of compensation awarded by the Land Administrator, KCSB filed an application for land reference at the Johor Bahru High Court. [6] On 8.8.2019, based on the question of law raised by the learned High Court Judge himself and submissions by counsels for respective parties during the land reference proceedings, the Judge held that the Forms G and H of the LAA issued by the Land Administrator dated 3.11.2016 were invalid on the ground that they were issued without giving the interested parties a chance to be heard (see KCSB Konsortium Sdn Bhd v. Pentadbir Tanah Johor Bahru [2020] 3 CLJ 112). [7] Then, the State Government filed an appeal against such decision but the appeal was later withdrawn (see the letter from the Johor State Legal Adviser’s Office dated 22.6.2022 at page 114 of the Record of Appeal). [8] Back to the tenancy matter, as both Goh and Thor failed to pay the rentals despite the continuation of staying and running businesses on the Sublots, on 12.3.2021, KCSB and TUSB filed two separate suits at the Johor Bahru Sessions Court against Goh and Thor, respectively claiming for the outstanding rentals and late payment interest. S/N PXLF2A28akCj0OeMTQuUBA **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 [9] After Goh and Thor had filed their Statements of Defence, on 24.3.2022, KCSB and TUSB filed the issues to be tried in enclosure 13 which contained the following two issues: (a) whether KCSB and TUSB are entitled to claim for the rentals from Goh and Thor; and (b) whether the right of KCSB and TUSB in claiming for the rentals can be disputed by Goh and Thor. [10] On 6.4.2022, with a view that the issues to be tried can be determined pursuant to O. 14A of the ROC, KCSB and TUSB filed the relevant applications which later were granted by the SCJ. Parties’ arguments [11] The Appellants contended that the SCJ was wrong in allowing the Respondents’ applications under O.14A of the ROC as the applications failed to meet the threshold required by the Order namely there are disputed material facts as follows: (a) there is a material dispute on the ownership of the Land. The Appellants argued that once Form K was issued by the Land Administrator on 15.2.2017, the acquisition of the Land was completed and the land title of the Land was extinguished. The Land now became the state land and is not owned by KCSB; and S/N PXLF2A28akCj0OeMTQuUBA **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 (b) the rental arrears are disputed since the Land was not owned by KCSB. Suitability of these applications be disposed of by way of O. 14A [12] For ease of reference, I reproduce O. 14A r. 1 of the ROC – Determination of questions of law or construction (O. 14A, r. 1) 1. (1) The Court may, upon the application of a party or of its own motion, determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that — (a) such question is suitable for determination without the full trial of the action; and (b) such determination will finally determine the entire cause or matter or any claim or issue therein. (2) On such determination the Court may dismiss the cause or matter or make such order or judgment as it thinks just. (3) The Court shall not determine any question under this Order unless the parties have had an opportunity of being heard on the question. (4) The jurisdiction of the Court under this Order may be exercised by a Registrar. (5) Nothing in this Order shall limit the powers of the Court under Order 18, rule 19 or any other provisions of these Rules.”. S/N PXLF2A28akCj0OeMTQuUBA **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 [13] On the significance, principles and conditions of O.14A, I can do no better than to reproduce the summary of these by Muniandy Kannyappan J in Kok Kon Sang v. CIMB Bank Berhad [2023] 1 LNS 740 as follows: [9] For that to take place, on plain reading of O. 14A ROC as well as case authorities which are applicable and binding on this court, succinctly elaborating on the operation and enforceability of O. 14A entails, in order for this court to exercise its power to summarily dispose of an action, there shall be no dispute between plaintiff and defendant on the relevant and material facts pleaded in the pleadings. [10] Jurisprudence applicable in order to deal with an application under Order 14A ROC, which is a summary procedure is laid down in the rule itself to dispose of the case altogether after determining it on a point of law. By virtue of proceeding under Order 14A ROC, this court in fact would consider and determine a point of law which has arisen from facts of the case, premised on the pleadings as well as the available affidavit evidence explaining the transaction in issue. If that point of law is finally resolved, it would be unnecessary for an open court trial. The determination on point of law would also have the effect of declaring rights of the parties. Application and enforceability of Order 14A ROC is demonstrated by the following principles of law, distilled from the rule itself as well as decided case authorities explaining construction of the said rule, which is the following:  Pursuant to Order 14A, the court will determine questions of law when it appears to the court that such question can be determined without a full trial.  The determining factors will be derived from the facts disclosed by the pleadings and affidavit evidence which must be sufficient for the court to make such determination. S/N PXLF2A28akCj0OeMTQuUBA **Note : Serial number will be used to verify the originality of this document via eFILING portal 8  The Federal Court in the case of Thein Hong Teck & Ors v. Mohd Afrizan Husain & Another Appeal [2012] 1 CLJ 49 decided that, it is trite that O. 14A could only be resorted to if there was no dispute by parties as to the relevant facts, or the court concluded that the material facts were not in dispute.  The Court of Appeal in the case of Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2007] 6 CLJ 741 decided that Order 14A is not a tool where the court is required to interpret the statement of claim to decide what point of law arises before deciding on it. An Order 14A application is to decide clear points of law or construction that are apparent on the pleadings. The points of law to be determined thereunder must be stated in clear and precise terms.  The Federal Court in Kerajaan Negeri Kelantan v. Petroliam Nasional Bhd & Other Appeals [2014] 7 CLJ 597 ruled that a court, in determining an Order 14A application, should consider whether the action is suitable to be disposed of by way of Order 14A application and whether the material facts are not in dispute. [11] Thus, to iterate, a successful Order 14A application shall satisfy the following requirements: (i) The defendants have entered an appearance to the writ. (ii) The question of law or construction is suitable for determination without a full trial of the action. (iii) Such determination will be final to the entire cause or matter or any claim or issue therein. S/N PXLF2A28akCj0OeMTQuUBA **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 (iv) There is no dispute as to all necessary and material facts relating to the subject matter of the question when the court proceeds to determine the question. (v) The parties have had an opportunity of being heard on the question of law. [14] In the present appeals, looking at the triable issues filed in the proceedings in the Sessions Court, it is clear that the nub of the applications is to determine whether the 1st Respondent is the owner of the Land or the Land has become a state land despite the compulsory acquisition of the Land was decided by the High Court as invalid. Therefore, I agree with the SCJ that such question is undoubtedly suitable for determination without the full trial of the action. Whether the 1st Respondent is still the owner of the Land [15] The Appellants contended that the Land had become the state land once Form K was issued by the Land Administrator. The original title of the Land was extinguished after the issuance of Form K. As such, in the absence of a new issue document of title, the Land is a state land and the 1st Respondent is no longer the owner of the Land. [16] To support their argument, the Appellants referred to the Federal Court case of Orchard Circle Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Ors [2021] 1 CLJ 1; [2021] 1 MLJ 180 where it was decided in para 39 that “in our present case, not only that the lands have been taken possession of, by the State Authority, it has already been vested in the State Authority. Once the lands are vested with the State Authority, there are no provisions in the LAA to revert the lands back to the owner”. S/N PXLF2A28akCj0OeMTQuUBA **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 [17] It is pertinent to look at the backdrop of Orchard Circle case in which the appellant’s two lands were acquired by the state authority for the purpose of building the Kajang Traffic Dispersal Highway ('SILK Highway') where Form D of the LAA was issued on 10.12.2001 and an inquiry before the land administrator was held on 24.12.2002. As the compensation was a nominal RM1 because a portion of the lands had already been surrendered to the state authority, on 30.1.2003, Orchard Circle filed an application for judicial review (“first judicial review application”) in the High Court for an order, amongst others, to quash the first award of compensation and alternatively for a declaration that the acquisition of the lands was null and void. [18] On 10.12.2010 (after nine years from the date of Form D and 7 years from the date of filing of the judicial review application), the High Court allowed the first judicial review application and ordered a certiorari to quash the first award and a mandamus to remit the matter back to the land administrator for a fresh second land inquiry. Hence, on 17.2.2011 to 17.11.2011, an inquiry was conducted by the land administrator (“second land inquiry”). On 24.4.2012, the land administrator in the second land inquiry made the following orders; (i) the issue in relation to a lapsed Form D did not arise as his award was but an extension of the first award when the High Court in the first judicial review application ordered for a fresh land inquiry; (ii) 17,284.67 sqm of the lands were surrendered to the state authority and a nominal compensation of RM1 was awarded for the surrendered portion; and (iii) 1,839.10 sqm of the lands were not surrendered hence RM514,948 was awarded for this portion ('the second award'). S/N PXLF2A28akCj0OeMTQuUBA **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 [19] Dissatisfied with the decision of the land administrator in the second land inquiry, Orchard Circle filed the second judicial review application on 30.5.2012 (“second judicial review application”). In this second judicial review application, the High Court in allowing the application made the following orders, inter alia (i) pursuant to s. 8(4) of the LAA, the validity of Form D was only for a period of two-years from the date of its publication in the Gazette. In this case, the second award was handed down nine years after the expiration of Form D and as a result, Form D, Form G and Form H and all proceedings following thereon were quashed; (ii) that Orchard Circle was the lawful proprietor of the lands and was entitled to possession thereof; (iii) dismissing Orchard Circle's alternative prayers for a declaration that there was no surrender of 17,284.67 sqm and (iv) dismissing Orchard Circle's reliefs for, inter alia, damages. [20] Dissatisfied with the decision of the High Court, Orchard Circle appealed against the decision to the Court of Appeal on the refusal to award damages and the respective respondents appealed against the decision allowing the second judicial review application. In a unanimous decision, the Court of Appeal held that Form D dated 10.12.2001 and all acquisition proceedings were valid. [21] Orchard Circle later appealed against the decision of the Court of Appeal to the Federal Court where the apex court in dismissing Orchard Circle’s appeal held that Form D shall lapse and cease to be of any effect if the land administrator had not made an award within two-years from the date of Form D. The facts showed that the first award was well within the two-year period of Form D. It was, however, unfortunate that the high court took almost seven years to make a determination on the first judicial review application filed by Orchard Circle. Given the factual matrix of the S/N PXLF2A28akCj0OeMTQuUBA **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 case, the Federal Court held that it could not be said that the land administrator in the second land inquiry had contravened s. 8(4) of the LAA when it made the second award beyond the two year period as stipulated. The second land inquiry was only to substitute the first land inquiry as the issue of the land acquisition and taking possession of the lands and Form D were never declared as null and void by the court. [22] Back to the instant appeals, it is clear that the material facts herein are different from in Orchard Circle. In that case, the compulsory acquisition was done in 2001 and the SILK Highway was duly completed when the Federal Court delivered the judgment in November 2020. There was no issue of defective or invalid forms issued by the land administrator up to the issuance of Form K. In that case, s. 66 of the LAA is undoubtedly applicable. Whereas in the present appeals, the acquisition was commenced in 2016 and in 2019 (three year later) the high court declared that the acquisition of the Land was invalid due to the defective and invalid Form G which led the invalidity of subsequent forms including Form K. Furthermore, the state authority had abandoned the acquisition. As such, with respect, it is my considered view that the decision in Orchard Circle should not serve as a binding precedent in the present appeals. [23] In addition, it is my view that once a compulsory acquisition of a land has been decided as invalid by a court and there is no appeal against such decision, then the land must be reverted to its original owner as if the acquisition was never in place and of no effect. It is incumbent upon the land administrator to revert the land to its original registered owner despite the issuance of Form K and the absence of any order of the court on the reversion. The failure of the land administrator in doing so would render the land becomes a state land and would deprive the owner of his S/N PXLF2A28akCj0OeMTQuUBA **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 land. If this happens, it is clearly an infraction of Art. 13 of the Federal Constitution which reads – Rights to property 13. (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 [24] For the present appeals, if the Land is now a state land as contended by the Appellants despite the High Court ruled that the acquisition of the Land was invalid, undoubtedly the 1st Respondent had been flagrantly deprived of its property not only not in accordance with law but also with no compensation awarded. [25] It is my view that the absence of any provision in the LAA requiring the state authority to revert the land after an acquisition of a land has been declared as invalid ought not to be understood or taken to mean that there is no such duty imposed on the state authority. The absence of such a provision ought not to be regarded as a cloak under which the state authority can let such land remains as a state land. As for these instant appeals, the pivotal matter is concerned with the right to property which is one of the fundamental rights guaranteed by the Federal Constitution. Thus, when the acquisition of the 1st Respondent’s land was declared as invalid and the state authority has abandoned the acquisition, the Land must, by whatever means, be reverted by the State Authority or the Land Administrator to the 1st Respondent. S/N PXLF2A28akCj0OeMTQuUBA **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 [26] Another point to highlight is that notwithstanding the title of the Land was extinguished, the 1st Respondent is the equitable owner of the Land who has the full right to the Land as the extinguishment was clearly based on the invalid-declared acquisition. In short, the extinguishment of the Land does not affect the exclusive right of the 1st Respondent to deal with the Land. Whether the Appellants are estopped from denying the 1st Respondent as the land owner [27] Another important point raised by the Respondents is that the Appellants are estopped from denying the fact that 1st Respondent is the owner of the Land based on s. 116 of the Evidence Act 150 (“EA”) which says – Estoppel of tenant and of licensee of person in possession 116. No tenant of immovable property, or person claiming through the tenant, shall during the continuance of the tenancy be permitted to deny that the landlord of that tenant had at the beginning of the tenancy a title to the immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that that person had a title to such possession at the time when the licence was given. [28] It has to be noted that as at the date of hearing of these appeals, the Appellants still occupy and run businesses on the Sublots without paying the rentals to the Respondents. [29] It is my view that s. 116 of the EA underscores that a tenant is estopped to question the landlord’s title of the premises on which he is renting so long as the possession of the premises is not surrendered to S/N PXLF2A28akCj0OeMTQuUBA **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 the landlord (see Big Blue Taxi Facilities Sdn Bhd v. Pusat Pembangunan Reka Bentuk (M) Sdn Bhd [2018] 1 LNS 1574; [2018] 9 MLJ 147, Wee Tiang Yap v. Chau Chan Brothers [1984] 1 CLJ Rep 433; [1984] 1 CLJ 156; [1986] 1 MLJ 47, Singma Sawmill Co Sdn Bhd v. Asian Holdings (Industralised Buildings) Sdn Bhd [1979] 1 LNS 96; [1980] 1 MLJ 21 and Rosman bin Hj. Abdul Rashid v. Rosmah Begum bte Bahadur Beg [1994] 2 CLJ 101; [1993] 2 MLJ 196). [30] The Appellants argued that s. 116 of the EA is not applicable as the tenancy agreements for the Sublots were not renewed. With respect, I find the argument is misconceived. The statutory estoppel provided by s. 116 of the EA is applicable as long as the possession of the Sublots has not surrendered to the Respondents notwithstanding the tenancy was not renewed. In this regard, I draw support from the case of Sebumi Magnetik Sdn. Bhd v. Mohd. Sukri Saenong & Ors [2015] 1 LNS 156 where in that case the defendants had rented the plaintiff’s land via a Concession Agreement entered into between them. Regardless of not renewing the agreement, the defendants still continued occupying the land without paying the management fee and rental to the plaintiff. Ravintharan J (now JCA) in allowing the plaintiff’s application for summary judgment had this to say – In the Privy Council case of B Kunwar v. D Ranjit Singh AIR 1915 PC 96 Sir George Farwell said as follows at page 98 in considering section 115 of the Indian Evidence Act which is in pari materia with section 116 of our Evidence Act 1950 (cited in Wee Tiang Yap v. Chan Chan Brothers [1984] 1 CLJ Rep 433; [1986] 1 MLJ 47): The other point in the case is one of estoppel. The property was let by the plaintiff to defendant Ranjit Singh; he was let into possession by the S/N PXLF2A28akCj0OeMTQuUBA **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 plaintiff's gardener Bhairon, on her behalf and by her direction, and he regularly paid rent to her and applied to her do all the necessary repairs; he has never given up possession to her although he duly received notice to quit, and he has denied her title. Section 116 of the Indian Evidence Act is perfectly clear on the point, and rests on the principle well established by many English cases, that a tenant who has been let into possession cannot deny his landlord's title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord. In the instant case, the defendants are still in occupation of a portion of the Food Square area. In the premises, they are forbidden by section 116 to question the title of the plaintiffs. Therefore, the question whether the Concession Agreement had been renewed or otherwise should not be the concern of the defendants. It follows that it would be pointless to allow the issue of renewal of the Concession Agreement to go for trial. For sake of completeness, I must also address that the argument of the defendants that estoppel by tenancy was not pleaded. In my view, it is not fatal as it is pure question of law and therefore it is not fatal if not pleaded. Conclusion [31] Notwithstanding Form K was issued pertaining to the Land and extinguishment of the land title was done, it did not affect the 1st Respondent’s ownership of the Land as its compulsory acquisition was invalid and of no effect. The 1st Respondent is the equitable owner of the Land. In addition, by virtue of s. 116 of the EA, the Appellants are prevented from denying the 1st Respondent’s ownership of the Land as the former have not restored the possession of the Sublots by surrendering them to the latter. Hence, there is no dispute that the 1st Respondent is the proprietor of the Land. Flowing from this finding, I find that there is no doubt that the 2nd Respondent is entitled to claim the outstanding rentals together with the late payment interest. S/N PXLF2A28akCj0OeMTQuUBA **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 [32] Based on my reasons adumbrated above, there is no ground for this court to interfere with the SCJ’s finding that the issues to be tried in the proceedings are suitable for determination pursuant to O. 14A of the ROC and it would be unnecessary for an open court trial. Therefore, I dismiss the Appellants’ appeals with costs. Dated: 24.11 .2023 -SIGNED- (SHAMSULBAHRI BIN HAJI IBRAHIM) Judge, High Court of Malaya, Johor Bahru Counsels:  For the Appellants - Gan Techiong (Wong Wan Ting with him); Messrs. Gan & Lim  For the Respondents - Lim Kien Huat; Messrs. Lee & Lim Cases referred to:  Big Blue Taxi Facilities Sdn Bhd v. Pusat Pembangunan Reka Bentuk (M) Sdn Bhd [2018] 1 LNS 1574; [2018] 9 MLJ 147,  KCSB Konsortium Sdn Bhd v. Pentadbir Tanah Johor Bahru [2020] 3 CLJ 112  Kok Kon Sang v. CIMB Bank Berhad [2023] 1 LNS 740  Orchard Circle Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Ors [2021] 1 CLJ 1; [2021] 1 MLJ 180  Rosman bin Hj. Abdul Rashid v. Rosmah Begum bte Bahadur Beg [1994] 2 CLJ 101; [1993] 2 MLJ 196 S/N PXLF2A28akCj0OeMTQuUBA **Note : Serial number will be used to verify the originality of this document via eFILING portal 18  Sebumi Magnetik Sdn. Bhd v. Mohd. Sukri Saenong & Ors [2015] 1 LNS 156  Singma Sawmill Co Sdn Bhd v. Asian Holdings (Industralised Buildings) Sdn Bhd [1979] 1 LNS 96; [1980] 1 MLJ 21  Wee Tiang Yap v. Chau Chan Brothers [1984] 1 CLJ Rep 433; [1984] 1 CLJ 156; [1986] 1 MLJ 47 Legislations referred to:  Evidence Act 150 - s. 116  Federal Constitution - Art. 13  Rules of Court 2012 - O. 14A r. 1 S/N PXLF2A28akCj0OeMTQuUBA **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

WA-22NCC-327-07/2020

PLAINTIF 1. ) Kumpulan Powernet Berhad 2. ) Powernet Industries Sdn Bhd DEFENDAN 1. ) Woo Wai Mun 2. ) Moo Yong Kong Meng 3. ) Au Chan Chun 4. ) Tai Teck Soon 5. ) Powerfit Industries Sdn Bhd 6. ) Powernet Trading (M) Sdn BhdPIHAK TERKILAN1. ) RHB BANK BERHAD 2. ) ALLIANCE BANK MALAYSIA BERHAD 3. ) FONG WAI @ FOONG KAI MING 4. ) Baker Tilly Monteiro Heng PLT 5. ) LEONG SIEW MING 6. ) UNITED OVERSEAS BANK (MALAYSIA) BHD 7. ) Jabatan Peguam Negara

Companies and Corporations — Directors' Duties — Whether directors acted in breach of statutory duties, fiduciary duties and committed fraud — Whether directors failed to act in good faith and in the best interest of company — Whether such failure caused losses and damages to company — Dishonest assistance — Whether defendants liable — Whether Third Party liable — Companies Act 2016 s 213, 214, 221, 218 and 219

25/11/2023

YA Puan Liza Chan Sow Keng

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=5205720d-e875-4a70-b922-5a77594a6345&Inline=true

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) SUIT NO: WA-22NCC-327-07/2020 BETWEEN 1. KUMPULAN POWERNET BERHAD (COMPANY NO: 419227 -X) 2. POWERNET INDUSTRIES SDN BHD (COMPANY NO: 47163-W) … PLAINTIFFS AND 1. WOO WAI MUN (NRIC NO.: 740305-14-5627) 2. MOO YONG KONG MENG (NRIC NO.: 570330-08-5575) 3. AU CHAN CHUN (NRIC NO.: 851015-06-5073) 4. TAI KEN SIN [REPRESENTATIVE OF TAI TECK SOON (NRIC NO.: 540429-10-5911) DECEASED] 5. POWERFIT INDUSTRIES SDN BHD (COMPANY NO: 26690-V) 6. CEPSEL INDUSTRIES SDN BHD (Previously known as Powernet Trading (M) Sdn Bhd) (COMPANY NO: 331275 -T) … DEFENDANTS AND 1. FONG WAI @ FOONG AI MING (NRIC NO.: 400917-10-5107) 2. LEONG SIEW MING (NRIC NO.: 790629-14-5397) … THIRD PARTIES 25/11/2023 08:45:52 WA-22NCC-327-07/2020 Kand. 397 S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 BROAD GROUNDS INTRODUCTION [1] In this action, the Plaintiff claims: 1.1 As against the 1st Defendant (“D1”), 2nd Defendant (“D2”) and 3rd Defendant (“D3”), that they have committed fraud, breach of statutory duties, breach of contractual duties, breach of fiduciary duties and are liable for the loss and damage suffered by the Plaintiffs; and 1.2 as against D3 and 4th Defendant (“D4”), that they have dishonestly assisted D1 and D2 in committing the breach of statutory duties, breach of contractual duties and breach of trust and fiduciary duties and are liable for the loss and damage suffered by the Plaintiffs. [2] During a protracted trial lasting 24 non consecutive, using the Zoom video conferencing platform, the Plaintiff called 8 witnesses whilst D1, D2 and D3 testified in their own defence. D1 also subpoenaed 1 witness, Ahmad Aljafree Bin Mohd Razalli, D5 ‘s Director William Chan testified on behalf of the 5th Defendant (“D5”), the 2nd Third Party (“TP2”) testified. D4 passed away. His son Tai Ken Sin was appointed by Court order to represent the estate of D4. Both D4 and the 6th Defendant (“D6”) did not enter an appearance or appear at the trial. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 [3] The Third Parties were brought into this action by D1. On 15.9.2022, D1 has withdrawn his claim against the 1st Third Party who passed away in July 2022. [4] The 1st Plaintiff (“P1”) at all material times is an investment holding company listed on Bursa Malaysia since 22.3.2002. [5] The 2nd Plaintiff (“P2”) is P1’s wholly owned subsidiary carrying the business of manufacturing warp-knitted fabric. P2 was awarded with the Manufacturing Licence. The Manufacturing Licence is a compulsory requirement for P2 to be able to engage in manufacturing activities as stipulated under the Industrial Co-ordination Act 1975. With the Manufacturing Licence owned by P2, P2 was able to apply for a Cost Analysis (“CA”) and subsequently a Certificate of Origin (“CO”). At the material time, P2 had been awarded with the CO by MITI and it was able to enjoy the preferential duties for material exported to the other countries. [6] D5 and D6 were subsidiaries of P2 until their disposal on 17.12.2018. D5 was at all material times carrying business of manufacturing and selling slit binding, bone casing, clip hook and eyes fittings, hook, and eye tapes as well as hook and eye tape machine. D6 was at all material times carrying business of investment holding. [7] D1 was appointed as a director of P1 on 25.8.2015. He held the office of Managing Director of P1 from 1.6.2016 until his resignation on 5.7.2018. D1 was a director of P2 from 30.9.2015 until his resignation on 12.2.2019. He was a director of D5 and D6 from 30.9.2015 to 3.4.2019. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 [8] D2 was appointed as a director of P2 on 9.1.2017 until his resignation on 22.7.2019. D2 was a director of D5 and D6 from 9.1.2017 until 3.4.2019. [9] D3 was the Group Accountant of P1, P2, D5 and D6 from 1.10.2016 until his resignation on 15.2.2019. [10] D4 was a Director of D6 from 3.4.2019. He was also a former director of D5 from 3.4.2019 to 16.6.2020. D4 passed away on 20.6.2020. [11] D2 signed on behalf of P2, Two Share Sale Agreements both dated 17.12.2018 (“the impugned agreements”) to dispose the shares of P2 in D5 and D6 to D4 at a sum of RM10.00 each. [12] P2, D5 and D6’s respective directors’ circular resolution (“DCR”) all dated 15.1.2019 for the sale of P2’s shares in D5 and D6 were signed by D1 and D2. In P2’s DCR dated 15.1.2019, it was resolved that D6 is to be disposed to one Cheong Wai Loon who at the material time of the DCR was the Senior Manager in Sales & Marketing of P2. However, the disposal of D6 was eventually made to the late D4, Tai Teck Soon. [13] D5 obtained a Manufacturing Licence dated 13.2.2018 which has been in force since 16.10.2017 for the purpose of manufacturing products such as Knitted Fabrics, Jacket, Garment & Denim. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 Plaintiffs’ claim [14] In 2019, there was a change in the composition of the Board of Directors of P1. The new P1 Board has directed the new management to investigate and examine the Plaintiffs’ business dealings by the previous management. [15] The new management discovered that there were irregularities in the previous management in respect of, amongst others, the following: 15.1 illegal and fraudulent disposal of shares belonging to P2 in D5 and D6; 15.2 illegal use of Manufacturing Licence belonging to P2; and 15.3 illegal use of information and documents belonging to P2 to obtain Certificate of Origin (“CO”) for D5. [16] Arising from the discovery by the new management, on 28.7.2020 these proceedings were instituted by the Plaintiff against all the Defendants. [17] Further, on 26.11.2020, 27.11.2020 and 16.2.2021 the Plaintiffs have also filed discovery applications against RHB Bank Berhad (“RHB Bank”), United Overseas Bank (Malaysia) Bhd (“UOB Bank”), Alliance Bank Malaysia Berhad (“Alliance Bank”), Citibank Berhad (“Citibank”), Baker Tilly Monteiro Heng PLT (“Baker Tilly”) and Ministry of International Trade and Industry (“MITI”) (collectively referred to as “Discovery Applications”). S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 [18] From the Discovery Orders made pursuant to the Discovery Applications, the Plaintiffs had also discovered that amongst others, the following: 18.1 there were 84 transactions worth RM24,347,200.66 undertaken using P2’s Manufacturing Licence which was never paid and/or declared as dividend to P1 and/or P2; 18.2 the former auditors, Baker Tilly were provided with information by D1 and D3, amongst others, that D5 and D6 were no longer in operations before the disposal of D5 and D6; 18.3 parts of proceeds of the 84 transactions from the sale worth RM24,347,200.66 have been deposited into D5 and D6 bank accounts; 18.4 numerous cash cheques and other cheques were issued from D5’s bank account after the disposal of D5; 18.5 there were also various deposits and withdrawals made from D5 and D6 accounts before and after the disposal; 18.6 fraudulent issuance of various cheques from P1, P2, D5 and D6 to D1, D3 and other individuals and company related to D1 before and after the disposal of D5 and D6. [19] Hence, the Plaintiffs filed this action. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 [20] D1, D2 and D3 denied the allegations of fraud, breach of statutory duties, breach of contractual duties, breach of trust and fiduciary duties. D3 in addition denied the allegation of dishonest assistance. D4 did not defend the claim notwithstanding that his son Tai Ken Sin was appointed as his representative. ISSUES [21] In my view, from the issues agreed by the parties may be distilled into the following main issues: 21.1 Whether D1, D2 and D3, the Plaintiffs have jointly or severally breached their statutory, fiduciary and contractual duties, breach of trust, and committed fraud by wrongly and unlawfully disposing P2’s shares in D5 and D6 at a nominal value of RM10.00 for each company without the approval of the Board of Directors and shareholders of P1 as the ultimate holding company of D5 and D6 and if so, are liable for the loss and damage suffered by the Plaintiffs? 21.2 Whether D3 and D4 have dishonestly assisted D1 and D2 in committing the breach of statutory duties, breach of contractual duties and breach of trust and fiduciary and are liable for the loss and damage suffered by the Plaintiffs? 21.3 Whether D1, D2 and D3 are liable to account and pay for the 84 transactions worth USD6,077,683.64 (equivalent to RM24,347,200.66 as at 20.7.2020)? S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 Burden of proof [22] It is trite law that the Plaintiffs, have both the “burden of proof” to make out a prima facie case as well as the initial onus of proof to adduce evidence to prove their claim. The onus of proof would only shift to the Defendants if the Plaintiffs have made out a prima facie case. See for e.g., the Federal Court decision in Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697; [2017] 5 CLJ 418 where Jeffrey Tan FCJ held that: “[56] Thus a plaintiff has both the burden of proof as well as the initial onus of proof. In Britestone Pte Ltd v Smith & Associates Far East, Ltd [2007] 4 SLR 855, the Singapore Court of Appeal per VK Rajah JCA, delivering the judgment of the court, explained that at the start of the plaintiff’s case the burden of proof and the onus of proof coincide: … at the start of the plaintiff’s case, the legal burden of proving the existence of any relevant fact that the plaintiff must prove and the evidential burden of some (not inherently incredible) evidence of the existence of such fact coincide. Upon adduction of that evidence, the evidential burden shifts to the defendant, as the case may be, to adduce some evidence in rebuttal. If no evidence in rebuttal is adduced, the court may conclude from the evidence of the defendant. If, on the other hand, evidence in rebuttal is adduced, the evidential burden shifts back to the plaintiff. If, ultimately, the evidential burden comes to rest on the defendant, the legal burden of proof of the relevant fact would have been discharged by the plaintiff. The legal burden of proof — a permanent and enduring burden — does not shift. A party who has the legal burden of proof on any issue must discharge it throughout. Sometimes, the legal S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 burden is spoken of, inaccurately, as ‘shifting’; but what is truly meant is that another issue has been engaged, on which the opposite party hears the legal burden of proof. [57] The rule is that ‘the onus of proof of any particular fact lies on the party who alleges it, not on him who denies it; et incumbit probation qui decit, non qui negat, Actori incibit probation … The plaintiff is bound in the first instance, to show a prima facie case, and if he leaves it imperfect, the court will not assist him. Hence the maxim Potior est condition defendantis. A plaintiff cannot obviously advantage himself by the weakness of the defence. A plaintiff’s case must stand or fall upon the evidence adduced by him. When, however, the defendant, or either litigant party, instead of denying what is alleged against him, relies on some new matter which, if true, is an answer to it, the burden of proof changes sides; and he, in his turn, is bound to show a prima facie case at least and, if he leaves it imperfect, the court will not assist him. Reus excipendo fit actor’ (Woodroffe and Amir Ali, Vol 3 at pp 3190- 3191)..” [23] In the case of Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61, the Federal Court held: “Sections 101, 102, 103 and 106 of the Evidence Act 1950 deal with the burden of proof. Under s 101, it is provided that whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. Under s 102 the burden of proof lies on that person who would fail if no evidence at all were given on either side. Under s 103, the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Under s 106, when any fact is especially within the knowledge of any person the burden of proving that fact is upon him.” S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 [24] In Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1, the Federal Court has pronounced the position of the law on the standard of proof on fraud in civil cases is that on balance of probabilities at para 49 of the judgment: “… that at law there are only two standards of proof. namely, beyond reasonable doubt for criminal cases “while it is on the balance of probabilities for civil cases. As such even if fraud is the subject in a civil claim the standard of proof is on the balance of probabilities. There is no third standard. ….” Director’s duties and fiduciaries [25] The Federal Court in Board of Trustees of the Sabah Foundation & Ors v Datuk Syed Kechik bin Syed Mohamed & Anor [2008] 5 MLJ 469 at [30] has adopted Millet LJ ‘s definition of a fiduciary in Bristol and West Building Society v Mothew (t/a Stapley & Co) [1998] Ch 1 at p 11 as follows: A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of the fiduciary. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 The nature of the obligation determines the nature of the breach. The various obligations of a fiduciary merely reflect different aspects of his mere core duties of loyalty and fidelity. Breach of fiduciary obligation, therefore, connotes disloyalty or infidelity competence is not enough. A servant who loyally does his incompetent best for his master is not unfaithful and is not guilty of a breach of fiduciary duty.” [26] The law is clear that a director of a company is in fiduciary relationship with his company and as such he is precluded from acting in a manner which will bring his personal interest into conflict with that of his company - per Salleh Abas LP in Avel Consultants Sdn Bhd & Anor v Mohamed Zain Yusof & Ors [1985] 2 MLJ 209 SC. [27] In Ford's Principles of Corporations Law in Chapter 8 at para [8.050] at p 312, a director is subject to the fiduciary's duty of loyalty and the duty to avoid conflicts of interest. Walter Woon on Company Law states that: Firstly, a director must act in what he honestly considers to be the company’s interests and not in the interests of some other person or body. This is a director’s main and overriding duty at common law; Secondly, a director must employ the powers and assets that he is entrusted with for proper purposes and not for any collateral purpose; Thirdly, a director must not place himself in a position whereby his duty to the company and his personal interests may conflict. [28] Section 213(1) Companies Act 2016 (“CA 2016’) requires directors to exercise their powers in good faith and in the best interests of the company whilst s. 213 (2) provides directors must exercise reasonable care, skill and diligence: S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 “Section 213(1) CA 2016: (1) A director of a company shall at all times exercise his powers in accordance with this Act, for a proper purpose and in good faith in the best interest of the company. (2) A director of a company shall exercise reasonable care, skill and diligence with: (a) The knowledge, skill and experience which may reasonably be expected of a director having the same responsibilities; and (b) Any additional knowledge, skill and experience which the director in fact has.” [29] In Pioneer Haven Sdn Bhd v Ho Hup Construction Co Bhd & Anor and other appeals [2012] 3 MLJ 616 at p 654 the Court of Appeal held that ss 132(1) and 132(1A) [re- enacted as s 213 (1) and (2) CA 2016] do not alter the law in this area but enhance the common law duty of care and equitable fidicuary duties. The Court of Appeal said at para 233: … The prior provision of s 132(1) requires a director to act honestly. The current s 132(1) of the Act, requires a director to act in good faith in the best interests of the company. It is accepted that for all intents and purposes, the scope of the directors’ duties to act honestly under the old s 132(1) and the new s 132(1) are the same. Thus the old case law relating to the duty to act honestly continues to be relevant (see Cheam Tat Pang v Public Prosecutor [1996] 1 SLR 541). It is also recognised that the duty to act in the best interests of the company means different things, depending on the factual circumstances. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 [30] The statutory no conflict rule encapsulated in s. 221(1) CA 2016 (s. 131 of the CA 1965) mandates disclosure where a director is in any way whether directly or indirectly interested in a transaction with the company. It reads: “Section 221 CA 2016: (1) Subject to this section, every director of a company who is in any way, whether directly or indirectly, interested in a contract or proposed contract with the company shall, as soon as practicable after the relevant facts have come to the director's knowledge, declare the nature of his interest at a meeting of the board of directors.” [31] Section 221(9) CA 2016 makes plain that interest in the shares of a company include that of a spouse. [32] The learned author Dato’ Loh Siew Cheang in ‘Corporate Powers Accountability’ explained the no-conflict and underlying fiduciary principle as follows: “14-4 The no-conflict principle embodies two fundamental themes. First, directors cannot engage in 'self-dealings' or enter into transactions with a company in which they are directly or indirectly interested. Second, directors cannot make improper use of their office, company's property or information to make profits for themselves directly or indirectly. This is commonly known as the no-profit rule. There are many ways in which directors may misuse their office to benefit themselves-from usurpation of corporate opportunities, receiving bribes or commission and misapplying company's property. The rule prohibiting undisclosed self-dealings and secret profits is a positive rule. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 14-5 The underlying fiduciary principle against the abuse of office is well established. In Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o Pennusamy & Ors (on their behalf and for the 213 sub-purchasers of plots of land known as PN35553, Lot 9108, Mukim Hutan Melintang, Hilir Perak) and other appeals, the Federal Court said: [69] It is trite law that a person in a fiduciary position is not entitled to make a profit and he is not allowed to put himself in a position where his interest and duty are in conflict. In Boardman v Phipps [1966] 3 WLR 1009 Lord Hodson explained the rule as follows: Whether this aspect is properly to be regarded as part of the trust assets is, in my judgment, immaterial. The appellants obtained knowledge by reason of their fiduciary position and they cannot escape liability by saying that they were acting for themselves and not as agents of the trustees. Whether or not the trust or the beneficiaries in their stead could have taken advantage of the information is immaterial, as the authorities clearly show. No doubt it was but a remote possibility that Mr Boardman would ever be asked by the trustees to advice on the desirability of an application to the Court in order that the trustees might avail themselves of the information obtained. Nevertheless, even if the possibility of conflict is present between personal interest and the fiduciary position the rule of equity must be applied. This appears from the observations of Lord Cranworth LC in Aberdeen Railway Co v Blaikie 1 Macq 461, 471. In the later case of Bray v Ford [1896] AC 44 Lord Herschell ... said: It is an inflexible rule of a Court of Equity that a person in a fiduciary position, such as the respondent's is not, unless otherwise expressly provided, entitled to make a profit; he is not allowed to put himself in S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 a position where his interest and duty conflict. It does not appear to me that this rule is, as has been said, founded upon principles of morality. I regard it rather as based on the consideration that human nature being what it is, there is danger, in such circumstances, of the person holding a fiduciary position being swayed by interest rather than by duty, and thus prejudicing those whom he was bound to protect. It has, therefore, been deemed expedient to lay down this positive rule. But I am satisfied that it might be departed from in many cases, without any breach of morality, without any wrong being inflicted, and without any consciousness of wrong-doing. Indeed, it is obvious that it might sometimes be to the advantage of the beneficiaries that their trustee should act for them professionally rather than a stranger, even though the trustee were paid for his services. [Emphasis added] 14-6 In Furs Ltd v Tomkies, the High Court of Australia explained the rationale as follows: No director shall obtain for himself a profit by means of a transaction in which he is concerned on behalf of the company unless all the material facts are disclosed to the shareholders and by resolution in a general meeting approves of his doing so, or all the shareholders acquiesce. An undisclosed profit which a director so derives from the execution of his fiduciary duties belongs in equity to the company. It is no answer to the application of the rule that the profit is of a kind which the company could not itself have obtained, or that no loss is caused to the company by the gain of the director. It is a principle resting upon the impossibility of allowing the conflict of duty and interest which is involved in the pursuit of private advantage in the course of dealing in a fiduciary capacity with the affairs of the company. If, when it is his duty to safeguard and further the interests of the company, he uses the occasion as a means of profit to S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 himself, he raises an opposition between the duty he has undertaken and his own self interest, beyond which it is neither wise nor practicable for the law to look for a criterion of liability. The consequences of such a conflict are not discoverable. Both justice and policy are against their investigation. [Emphasis added]” [33] The common law no-profit rule is also statutorily embodied in s. 218(1) CA 2016 which stipulates: “Section 218 Prohibition against improper use of property, position, etc. (1) A director or officer of a company shall not, without the consent or ratification of a general meeting- (a) use the property of the company; (b) use any information acquired by virtue of his position as a director or officer of the company; (c) use his position as such director or officer; (d) use any opportunity of the company which he became aware of, in the performance of his functions as the director or officer of the company; or (e) engage in business which is in competition with the company, to gain directly or indirectly, a benefit for himself or any other person, or cause detriment to the company.” [34] Nallini Pathmanathan JCA (now FCJ) in Taz Logistics Sdn Bhd v Taz Metals Sdn Bhd & Ors [2019] 3 MLJ 510; [2019] 2 CLJ 48 explained the ‘no profit rule’ as follows: S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 “[112] The landmark case and starting point for the no profit rule must be Regal (Hastings) Ltd v. Gulliver and Others [1942] 1 All ER 378 more particularly the speech of Lord Russell where he explained the rule: ... The rule of equity which insists on those, who by use of a fiduciary position make a profit, being liable to account for that profit, in no way depends on fraud, or absence of bona fides; or upon such questions or considerations as whether the profit would or should otherwise have gone to the plaintiff or whether the profiteer was under a duty to obtain the source of the profit for the plaintiff, or whether he took a risk or acted as he did for the benefit of the plaintiff, or whether the plaintiff has in fact been damaged or benefited by his action. The liability arises from the mere fact of a profit having, in the stated circumstances, been made. The profiteer, however honest and well-intentioned, cannot escape the risk of being called upon to account.” (emphasis added) [35] As D2 in his submissions had referred to the business judgment rule in s. 214 CA 2016, it is best that this court reproduce it for ease of reference: “214. Business Judgment Rule (1) A Director who make a business judgment is deemed to meet the requirement of the duty under Section 213(2) and the equivalent duties of the common law and in equity if the director– (a) Makes the business decision for a proper purpose and in good faith; (b) Does not have a material personal interest in the subject matter of the business decision; (c) Is informed about the subject matter of the business judgment to the extent the director reasonably believes to be appropriate under the circumstances; S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 (d) Reasonably believes the business judgment is in the best interest of the company. (2) For the purposes of this section, “business judgment” means any decision whether or not to take action in respect of a matter relevant to the business of the company.” [36] In Petra Perdana Berhad v. Tengku Dato’ Ibrahim Petra Tengku Indra Petra & Ors [2014] 11 MLJ 1; Nallini Pathmanathan J (now FCJ) succinctly explained the duties of directors to exercise their powers in good faith and in the best interests of the company and the business judgment rule pursuant to ss132 (1), (1A) and (1B) of the Companies Act 1965, (re-enacted as ss 213(1), (2) and 214 CA 2016 respectively) which I produce in extenso as follows: “[212] In Pioneer Haven Sdn Bhd v. Ho Hup Construction Co Bhd & Anor and Other Appeals [2012] 4 MLRA 210; [2012] 3 MLJ 616 at 654; [2012] 5 CLJ 169 the Court of Appeal held that ss 132(1) and 132(1A) do not alter the law in this area but enhance the common law duty of care and equitable fiduciary duties. At para 233, p 654 this is what the Court said: "...The prior provision of s 132(1) requires a director to act honestly. The current s 132(1) of the Act, requires a director to act in good faith in the best interests of the company. It is accepted that for all intents and purposes, the scope of the directors' duties to act honestly under the old s 132(1) and the new s 132(1) are the same. Thus, the old case law relating to the duty to act honestly continues to be relevant (see Cheam Tat Pang v. Public Prosecutor [1996] 1 SLR 541). It is also recognised that the duty to act in the best interests of the company means different things, depending on the factual circumstances." S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 [213] And the test to be adopted in determining whether there was a breach of such statutory duty was defined as follows at para 238 at p 655: “[238] ... The test is nicely condensed in Ford's Principles of Corporations Law (para 8.060), that there will be a breach of duty if the act or decision is shown to be one which no reasonable board could consider to be within the interest of the company. [239] This test is adopted in Charterbridge Corpn Ltd v. Lloyds Bank Ltd [1970] Ch 62 at p 74, in that, to challenge a decision of the directors the test is whether: “....an intelligent and honest man in the position of the director of the company concerned, could in the whole of the existing circumstances have reasonably believed that the transactions were for the benefit of the company." [240] The above principle is often referred to as the 'Charterbridge Principle'. ………… [242] It is important to note, following high authority, such as Howard Smith Ltd v. Ampol Petroleum Ltd [1974] AC 821, that the court does not substitute its own decision with that of the directors, since the decision of the directors to enter into the JDA is a management decision.” [214] This encapsulates the core of the duties owed by director under statute. [215] Of relevance in the instant case is the statutory business judgment rule in s 132(1B) which states as follows: "A director who makes a business judgment is deemed to meet the requirements of the duty under subsection (1A) and the equivalent duties under the common law and in equity if the director: S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 (a) Makes the business judgment in good faith for a proper purpose; (b) Does not have a material personal interest in the subject matter of the business judgment; (c) Is informed about the subject matter of the business judgment to the extent the director reasonably believes to be appropriate under the circumstances; and (d) Reasonably believes that the business judgment is in the best interests of the company." [216] The statutory business judgment rule encapsulates the common law business judgment rule as set out in Howard Smith Ltd v. Ampol Ltd [1974] AC 821. In that case there was a challenge to the validity of an issue of shares by the directors of a company. The Court had to decide whether the said directors had been motivated by any purpose or personal gain or advantage or whether they had acted bona fide in the interests of the company. The judge found that the primary purpose of the allotment was to proportionately reduce the shareholdings of certain majority shareholders such that a take-over could be facilitated by another entity. It was found in those circumstances that the directors had improperly exercised their powers. The matter proceeded to the Privy Council where the Judicial Committee found, dismissing the appeal that, although the directors had acted honestly and had power to make the allotment, to alter a majority shareholding was to interfere with an element of the company's constitution which was separate from the directors' powers and accordingly it was unconstitutional for the directors to use their fiduciary powers over the shares in the company for the purpose of destroying an existing majority or creating a new majority. And since the directors' primary object for the allotment of shares was to alter the majority shareholding, the directors had improperly exercised their powers and the allotment was invalid. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 [217] In so holding the Judicial Committee commented inter alia, in relation to the business judgment rule as follows: ".... In order to assist him in deciding upon the alternative motivations contended for, the judge considered first at some length, the objective question whether Millers was in fact in need of capital. This approach was criticised before their Lordships: it was argued that what mattered was not the actual financial condition of Millers, but what the majority directors bona fide considered that condition to be. Their Lordships accept that such a matter as the raising of finance is one of management, within the responsibility of the directors: they accept that it would be wrong for the court to substitute its opinion for that of the management, or indeed to question the correctness of the management's decision on such a question, if bona fide arrived at. There is no appeal on merits from management decisions to courts of law: nor will courts of law assume to act as a kind of supervisory board over decisions within the powers of management honestly arrived at. But accepting all of this, when a dispute arises whether directors of a company made a particular decision for one purpose or another, or whether there being more than one purpose, one or other purpose was the substantial or primary purpose, the court, in their Lordships' opinion, is entitled to look at the situation objectively in order to estimate how critical or pressing or substantial or, per contra, insubstantial an alleged requirement might have been. If it finds that a particular requirement, though real, was not urgent, or critical, at the relevant time, it may have reason to doubt, or discount the assertions of individuals that they acted solely in order to deal with it, particularly when the action they took was unusual or even extreme." [218] …… S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 Fiduciary duties [219] A company director is recognised as having a fiduciary relationship with his company. As stated in Ford's Principles of Corporations Law in Chapter 8 at para [8.050] at p 312, a director is therefore subject to the fiduciary's duty of loyalty and the duty to avoid conflicts of interest. Case-law establishes under the scope of a director's fiduciary duty that he must exercise his powers bona fide and in the best interests of the company as a whole. This is similar to, and captured by the duties imposed by statute (see s 132(1) above). The essence of the fiduciary duty is a duty to act bona fide in the interests of the company and not for a collateral purpose (see In Re Smith and Fawcett, Limited [1942] 1 Ch 304 at pp 306 and 308 and Multi-Pak Singapore Pte Ltd (in receivership v. Intraco Ltd & Ors [1994] 2 SLR 282 at p 287). Although the directors are vested with powers which carry implicitly some degree of discretion, such powers must be exercised bona fide, meaning for the purpose for which they were conferred and not arbitrarily or at the will of the directors, but in the interests of the company. (See Greenhalgh v. Ardene Cinemas Ltd [1951] Ch 287 at 291; Blackwell v. Moray and Anor (1991) 3 ACSR 255). Did Tengku Ibrahim, Lawrence Wong and Tiong who were directors of the Plaintiff at the material time exercise their powers for a proper purpose or for an improper purpose when they decided to undertake the Second and Third Divestments? [220] If the impugned directors exercised their powers for a proper purpose, it then follows that they acted bona fide in the interest of the company. If, however they exercised their powers for an improper purpose as is alleged by the Plaintiff, then they have failed to act in the best interests of the company and would be in breach of their statutory, fiduciary and common law duties as directors. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 [221] In order to answer this question in relation to the two divestments this Court needs to ascertain the substantial object or purpose for which the board decided to divest of the PEB shares. (see Howard Smith Ltd v. Ampol Ltd (above). [222] In ascertaining the substantial object or purpose for which each of these three directors decided to divest of the PEB shares, it is necessary to ascertain their individual states of mind at the time when the decision to undertake the Divestments was made. In ascertaining the state of mind of the directors, regard may be had to the circumstances surrounding the decision. In Hindle v. John Cotton Ltd (1919) 56 Sc LR 625 at 630-1, Viscount Findlay stated as follows: "Where the question is one of absence of powers, the state of mind of those who acted and motive on which they acted are all important, and you may go into the question of what their intention was, collecting from the surrounding circumstances all the materials which genuinely throw light upon that question of the state of mind of the directors so as to show whether they were honestly acting in the discharge of their powers in the interests of the company or were acting from some bye-motive, possibly of personal advantage or for any other reason."(emphasis added) [37] Her Ladyship Nallini Pathmanathan J (now FCJ) further explained: “[364] Business judgment has been defined to mean ‘any decision on whether or not to take action in respect of a matter relevant to the business of the company’ (see s 132 of the Companies Act). In Australian Securities and Investments Commission v Rich (2009) 75 ACSR 1 Austin J accepted a wide interpretation of the scope of ‘business judgment’. The words ‘in respect of, ‘matter’ and ‘relevant’ were accorded considerable breadth. As such it follows that an issue such as a shortage of cash flow and the disposal of assets falls squarely within this definition. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 [365] The effect of the statutory business judgment rule in the current context is this: If the impugned directors can show that they made the decisions to affect the second and third divestments, as a business judgment within the scope of s 132(1B) of the Companies Act 1965, then they are deemed to have met their obligations and duties as directors under statute, common law and equity. In other words, the requirements of s 132(1A) of due care and diligence in the exercise of their duties would have been met. [366] How then is this to be ascertained? The courts do not undertake the exercise of assessing the merits of a commercial or business judgment (see Smith (Howard) Ltd v Ampol Petroleum Ltd [1974] AC 821). [367] In the Australian case of Australian Securities and Investments Commission v. Rich [2009] ACSR 1('the Rich case') the enquiry related to the managing director Rich and the finance director, Silberman's failure to advise the board of directors that the company was insolvent. It should be highlighted that the statutory Australian provision equivalent to s 132(1B) is similar to our provision save for the use of the words 'rationally believes' rather than 'reasonably believes' in our section. While it has been argued by the American Law Institute that 'rationally believe' is considerably wider than 'reasonably believe' I am unable to subscribe entirely to that construction. Rational by definition alludes to a decision based on reason or logic. Reasonable as a word has much the same effect, namely a decision premised on logic or sense. The distinction does not therefore appear to be as wide as is suggested. [368] In the Rich case, Austin J. set out a compendium of requirements that need to be satisfied in or order to satisfy this requirement of 'rational' belief. As 'rational' is not entirely dissimilar to 'reasonable' it appears that the criteria set out in Rich's case are applicable under s 132(1B). Austin J. held there that reasonableness should be assessed by reference to: S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 (a) the importance of the business judgment that is to be made; (b) the time available for obtaining information; (c) the costs related to obtaining information; (d) the director's confidence in exploring the matter; (e) the state of the company's business at that time and the nature of the competing demands on the board's attention; and (f) whether or not the information is available to the director. [369] The Supreme Court of Canada in Peoples Department Stores Inc (Trustee of) v. Wise [2004] 3 SCJ No 64 held as follows at para 64: "Business decisions must sometimes be made with high stakes and under considerable time pressure in circumstances in which detailed information is not available. It might be tempting for some to see unsuccessful business decisions as unreasonable or imprudent in light of information that becomes available ex post facto. Because of this risk of hindsight bias, Canadian courts have developed a rule of defence to business decisions called the "business judgment rule". [370] Reference was made to Maple Leaf Foods Inc v. Schenieder Corp (1998) 42 OR (3d) 177: "The law as it has evolved in Ontario and Delaware has the common requirements that the court must be satisfied that the directors have acted reasonably and fairly. The court looks to see that the directors made a reasonable decision not a perfect decision. Provided that the decision taken is within a range of reasonableness, the court ought not to substitute its opinion for that of the board even though subsequent events may have cast doubt on the board's determination. As long as the directors have selected one of several reasonable alternatives, deference is accorded to the board's decision. This formulation of deference to the decision of the Board is known as the "Business judgment rule". The fact that alternative S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 transactions were rejected by the directors is irrelevant unless it can be shown that a particular alternative was definitely available and clearly more beneficial to the company than the chosen transaction." (Emphasis added) [38] The Federal Court in Tengku Dato’ Ibrahim Petra Tengku Indra Petra v. Petra Perdana Berhad & Another Case [2018] 2 MLJ 177 affirmed the High Court decision of Nallini Pathmanathan J (now FCJ), and in its judgment delivered by Azahar Mohamed FCJ (later CJM) elucidated and held that the true test for breach of duty as a director to act in good faith and in the ‘best interest of the company' is a combination of both the subjective and objective tests: “[165] What then is the true test for breach of duty as a director to act in good faith and in the ‘best interest of the company'? The question is whether it is a subjective or objective test to judge whether directors acted in the best interest of the company. It is to this we now turn. [166] In our judgment, the correct test combines both subjective and objective tests. The test is subjective in the sense that the breach of the duty is determined on an assessment of the state of mind of the director; the issue is whether the director (not the court) considers that the exercise of discretion is in the best interest of the company. In this regard, in Corporate Law by Hans Tjio, Pearlie Koh and Lee Pey Woan at p 361, the learned authors said that the director’s conduct is tested by reference to an essentially subjective barometer. The classic formulation of the subjective element in the test is found, as we have discussed earlier at para 157, in Re Smith & Fawcett, Limited in which Lord Greene MR said that ‘directors must exercise their discretion bona fide in what they consider — not what a court may consider — is in the interest of the company’. The duty is to act in what the director believes, not what the court believes, to be the best interest of the company. The subjective nature of the S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 test can be seen in Regentcrest Plc (in liq) v Cohen [2001] BCC 494 where Jonathan Parker J said: … the question whether the director honestly believed that his act or omission was in the interests of the company. The issue is as to the director’s state of mind. No doubt, where it is clear that the act or omission under challenge resulted in substantial detriment to the company, the director will have a harder task persuading the court that he honestly believed it to be in the company’s interest; but that does not detract from the subjective nature of the test. [167] The test is objective in the sense that the director’s assessment of the company’s best interest is subject to an objective review or examination by the courts. In an article entitled Directors’ Duty to Act in the Interests of the Company: Subjective or Objective? [2015] JBL Issue 2, the writers said that courts have introduced objective elements into the duty to act in good faith and in the best interest of the company to address the problem identified by Browen LJ in Hutton v West Cork Railway Company (1883) 23 Ch D 654 at p 671 where the learned judge said: Bona fides cannot be the sole test, otherwise you might have a lunatic conducting the affairs of the company, and paying away its money with both hands in a manner perfectly bona fide yet perfectly irrational. The test must be what is reasonably incidental to, and within the reasonable scope of carrying on, the business of the company. [168] The Singapore Court of Appeal in Goh Chan Peng and Others v Beyonics Technology Ltd and another and another appeal [2017] 2 SLR 592; [2017] SGCA 40 explained the preferred approach which combines both subjective and objective tests as follows: S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 Indeed, there are both subjective and objective element in the test. The subjective element lies in the court’s consideration as to whether a director had exercised his discretion bona fide in what he considered (and not what the court considers) is in the interests of the company: Re Smith & Fawcett Ltd [1942] Ch 304 at 306, as accepted by this court in Cheong Kim Hock v Lin Securities (Pte) (in liquidation) [1992] 1 SLR (R) 497 at 26 and in Ho Kang Peng v Scintronix Corp Ltd (formerly known as TTL Holdings Ltd) [2014] 3 SLR 329 (‘Ho Kang Peng’) at 37. Thus, a court will be slow to interfere with commercial decisions made honestly but which, on hindsight, were financially detrimental to the company. The objective element in the test relates to the court’s supervision over directors who claim to have been genuinely acting to promote the company’s interest even though, objectively, the transactions were not in the company’s interests. The subjective belief of the directors cannot determine the issue: the court has to assess whether an intelligent and honest man in the position of a director of the company concerned could, in the whole of the existing circumstances, have reasonably believed that the transactions were for the benefit of the company. This is the test set out in Charterbridge Corporation Ltd v Lloyds Bank Ltd [1970] 1 Ch 62 (at 74) and it has been applied here since adopted by this court in Intraco Ltd v Multi-Pak Singapore Pte Ltd [1994] 3 SLR (R) 1064 (at [28]). [39] The Federal Court at [177] and [178] reaffirmed the Charterbridge Principle exposited by Zainun Ali JCA (later FCJ) in Pioneer Haven Sdn Bhd v Ho Hup Construction Co Bhd & Anor and other appeals in that, to challenge a decision of the directors, the test is whether: an intelligent and honest man in the position of the director of the company concerned, could in the whole of the existing circumstances have reasonably believed that the transactions were for the benefit of the company. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 Analysis and findings Whether D1, D2 and D3 breached their duties and committed fraud [40] Guided by the instructive principles set out in the preceding paragraphs, I now deal with this issue. [41] D1, D2 and D3’s breaches of statutory and fiduciary duties breach of contractual and trust duties and committed fraud was alleged to arise from: 41.1 the disposal of P2’s shares in D5 and D6 at a nominal value of only RM10.00 for each company to D4 through the impugned agreements without the Plaintiffs’ prior approval; 41.2 the unlawful/wrongful use of P2’s Manufacturing Licence dated 16.10.2017 to export materials worth RM24,347,200.66 to Turkey and Pakistan from 2017 – 2019 (“the 84 Impugned Transactions”) without declaring the revenue or sales proceeds to the Plaintiffs and neither any dividend has been declared to the Plaintiffs; and 41.3 the unlawful use of documents belonging to P2 to obtain the Certificate of origin (“CO”) from the Ministry of International Trade and Industry (MITI) to enjoy preferential duties for exported items, despite the 5th Defendant having ceased to be the 2nd Plaintiffs’ subsidiary. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 Disposal of P2’s shares in D5 and D6 at a nominal value [42] The Plaintiffs posited that: 42.1 At the material time of the disposal, D1 was a Director of P2, D5 and D6 whilst D3 was the Group Accountant and the person in charge of the accounts and finance of the Plaintiffs, D5 and D6 respectively. D2 was deceived by D1 and D3 to be part of the disposals but given that D2 is also a director of P2, D5 and D6, he owed fiduciary duties to the Plaintiffs, D5 and D6. 42.2 D1 and D3 were the movers of the alleged wrongful Disposal Of Shares and that there is no credible evidence that D4 is the beneficial owner of D5 and D6: 42.2.1 D1 continued to have control over P2, D5 and D6 even though D1 is no longer the shareholder and managing director of P1 as admitted by D3 during cross examination; D2 also testified that P2, D5 and D6 were controlled together by D1 and D3. 42.2.2 D1 continued to be the director of D5 and D6 until 3.4.2019 even after the disposal of D5 and D6 on 17.12.2018; 42.2.3 D3 was the group accountant of the Plaintiffs from 1.10.2016 to 15.2.2019; S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 42.2.4 That D1 had control of D5 and D6 was also made evident by the fact that the former staff of the Plaintiffs joined D1 in D5 and D6 namely D3, Willam Chan Siew Kei (“William Chan”), Chang Shaw Horng, Cheong Wai Loon and Jainuri Bin Sarip. William Chan was interviewed by D1 whilst D3 was interviewed by D1’s wife. They were both indebted to D1. D1 was also the superior of all these staff who followed D1 in joining D5 and D6 after the Disposal Of Shares and all of them have received monies from D5 and D6; 42.2.5 D4 is not listed as the signatory of any of the bank accounts of D5 and D6; 42.2.6 There were no cheques issued from D5 and D6 to D4. Only a sum of RM12,000.00 was paid to D4’s son, Tai Ken Sin; and 42.2.7 William Chan is a willful nominee of D1 as can be inferred by William Chan’s indebtedness to D1 when he admitted that he has begged D1 for a job at P2 during his job interview in November 2017. [43] D1 admitted under cross-examination that in June 2017, D1 and D3 had informed Baker Tilly that D5 and D6 have ceased operations since 2017 through the Plaintiffs’ Group and Company Summary Review Memorandum S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 for financial year ended 30.6.2017 “the company had ceased operation since January 2017. The company planned to strike off the company in next financial year 2018, expected.” That the companies will be struck out was also captured in Baker Tilly’s Report on D5’s Related Party Transactions dated 24.7.2017 and Baker Tilly’s Report on D6’s Analytical Procedures dated 12.7.2018. [44] In facilitating the sale of both companies at a nominal sum of RM10.00: 44.1 the evidence revealed D1, D2 and D3 have written off cash advance in the sum of RM4,780,942.93 and RM1,208,183.70 respectively from P2 to D5 and D6 during financial year ended 30.6.2017 through P2’s directors’ circular resolution dated 30.6.2017 to ensure that there is no debts due to P2 before the disposal of D5 and D6 to D4; D1 admitted during cross-examination that by writing-off the debts, P2 will not be able to recover these debts from D5 and D6; D1 was not able to show proof that this writing off such big sums was disclosed to P1 and instead blamed the company secretary for advising that disclosure was not necessary; prior P2 writing off the cash advances to D5 and D6, an impairment of RM1,795,419.00 from P1 to P2 was made while D1 was one of the directors of P2. The effect of the impairment will show no debt is owed by P2 to P1 as part of the justification for P2 to write off cash advances from P2 to D5 and D6 that had been undertaken earlier on 30.6.2017; S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 44.2 D1, D2 and D3 also transferred all fixed assets belonging to D5 and D6 to P2 in order to reduce the value of D5 and D6 before the disposal. [45] In my respectful view, D1and D3’s explanation that the debts were written off due to the fact that D5 and D6 were unable to repay the debts owed to P2 at the material time and that the transfer of the fixed assets of D5 and D6 to P2 was executed for P2’s benefit is unacceptable as the evidence show which I will come to in a while that D5 and D6 were actively carrying on business. [46] The following events also show D1 and D3 engineered the disposal of D5 and D6: 46.1 D3’s brought the D5 Agreement and D6 Agreement for D2 to sign and secured D2’s signature after assuring D2 that everything will be under D1’s responsibility; 46.2 even before P2, D5 and D6’s board of directors have approved the sale, it was D1 and not D4 who procured the assessment of stamp duty for the D5 Agreement and D6 Agreement on 17.12.2018 which is telling of D1’s personal stake in the matter particularly when the agreements provide for stamp duties on the transfer to be paid by D4; 46.3 D1 and D2 only a month later signed the Directors’ Circular Resolution dated 15.1.2019 of P2, D5 and D6 for the sale of P2’s shares in D5 and D6 to the late D4; S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 46.4 Even without the respective board resolutions approving the disposal of D5 and D6 shares, on 10.1.2019, the company secretaries for D5 and D6 were suddenly replaced by D1. This sudden change of company secretaries was not made known to P1's Board. D1’s testimony that there was oral approval from the late Mr. Fong Wai @ Foong Kai Ming, a director of P1 at the material time to change the company secretary and to dispose D5 and D6 not only was not pleaded, it was also not in his witness statement. I find it a convenient afterthought particularly when P1 is a listed company on Bursa Malaysia and important matters like disposal of subsidiaries have to be announced within strict timelines and Fong Wai @ Foong Kai Ming is dead, a case of 'dead men tell no tales’. Such a tale is also contradicted by their submission that the change of company secretary of D5 and D6 on 10.1.2019 was made following D4’s instructions. D4 is also dead and again can tell no tale and besides, was also not pleaded and ought to be ignored. Added to that, I find such a narrative unbelievable as D4 simply could not have asked for a change of secretary when the sale of shares were not completed on 10.1.2019 and the respective Board of Directors of P2, D5 and D6 have not approved the sale yet; 46.5 On 15.1.2019 at 4.55pm, the newly appointed company secretary of D5 and D6, Ms. Candise of Bizmarc sent an email to the company’s secretary of P1, Ms. Asmaliza of S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 HMC attaching the stamp certificate in respect of the sale of P2’s shares in D5 and D6. Ms. Asmaliza then on the same day of 15.1.2019 at 5.16pm forwarded the draft announcements in relation to the disposals of D5 and D6 to Mr. Foong Kai ming (the 1st Third Party). On 16.1.2019 the next day, Ms. Asmaliza then emailed the draft announcements in relation to the disposals of D5 and D6 to the other directors in the KPB Board seeking for KPB Board’s approval to release the draft announcements in relation to the disposals of D5 and D6 and not to ask for approval regarding the disposal itself and this was when the Board of Directors of P1 were first made aware of the disposal of P2’s shares in D5 and D6 . Kok Pauline (PW- 4), a member of the Board of directors of P1 asserted in her testimony that the fact that the information and the stamp certificate in respect of the sale of P2’s shares in D5 and D6 were sent by Ms. Candise of Bizmarc to Ms. Asmaliza of HMC at 4.55pm on 15.1.2019 already demonstrated bad faith on the part of D1, D2 and D3; 46.6 No documentary evidence has been adduced by D1, D2 and D3 to show that P1’s Board of Directors was aware of the disposals of D5 and D6 prior to the email of Ms. Asmaliza on 16.1.2019; 46.7 at the 79th Board of Directors’ Meeting of P1 held on 16.1.2019 and Emergency Board of Directors’ Meeting of P1 S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 36 held on 15.4.2019 which were both attended by Mr. Fong, there was no mention of the so-called “oral approval” which D1 claimed has been given by Mr. Fong; 46.8 P1’s board instead took steps to lodge a complaint to the SSM and resolved that a police report would be lodged by the Board of Directors of P1 in respect of the unauthorised disposal of P2’s shares in D5 and D6; a police report was lodged on 25.4.2019 by a Board member, Dato’ Arivalagan Arujunan, regarding the unauthorised disposal of D5 and D6 and stating in the said police report that D1 had in bad faith executed the disposal of P2’s shares in D5 and D6 without prior approval of the Board of Directors of P1 and after the police report was lodged, the Board of Directors then authorised the company secretary to announce the non- recognition of the disposals of D5 and D6 to Bursa Malaysia due to the disposal of D5 and D6 were wrong and undertaken without prior approval of the Board of Directors of P1. [47] I find D1 and D3’s argument that there is also no necessity to conduct a valuation in regard of the value of D5 and D6 because D5 and D6 do not own any real estate and the Percentage Ratios for the disposal of D5 and D6 are less than 25% to be untenable, and I agree with Plaintiffs’ counsel that the analysis of the Percentage Ratios prepared by D3 show that it could not justify the disposal of D5 and D6 at RM10.00 as no proper valuation was undertaken and in any event the Percentage Ratios prepared by D3 were S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 37 wrong simply because D1 and D3 did not include all the tangible and intangible assets of D5 and D6 in the calculation. The intangible asset of D5 and D6 that have not been taken into account by D1 and D3 in disposing D5 and D6 are the Manufacturing Licence of D5 and unutilised tax losses of D5 and D6. In this regard, D1 agreed during cross-examination (i) that at the time of disposal D5 and D6 had unutilised tax losses of RM2,738,933 and RM822,230 respectively, (ii) D5 had Manufacturing Licence which enable D5 to trade under free trade agreement and that the total income and equity of D5 and D6 is more than RM10.00;(iii) as at 30.6.2018 D5 has total assets of RM101,979, total income of RM62,086 and total equity of RM57,826 which is all more than the value of RM10.00 of which D5 was sold for; (iv) in respect of D6, D1 agreed that as at 30.6.2018 D6 has a net profit of RM13,448, assets of RM51,569, total equity and liabilities about RM51,569, revenue of RM90,000 and gross profit of RM14,000 and cash which is more than the value of RM10.00 of which D6 was sold for. [48] That is not all. The value of the sales proceed collected by D5 for its exports of material to overseas after its disposal indicate plainly that there are still active business and value to D5. After the disposals of D5 and D6 on 17.12.2018 and with the use of the Manufacturing Licence of D5, monies were still deposited into the bank account of D5 from 17.12.2018 to 14.1.2021 a total deposit of RM11,777,543.32 is recorded in D5’s RHB Bank Account. [49] Kok Pauline (PW-4) testified that had the disposal of the D5 and D6 been tabled-up for discussion at a Board of Directors’ meetings of P1, P1 would not have approved it on the basis that the disposal of D5 and D6 for a S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 38 nominal consideration of only RM10.00 for each company is not the fair value of the companies. [50] D5’s contention that disposal of P2’s shares in D5 were legally passed on the basis of the existence of D5’s Director’s Circular Resolution as well as P2’s Director’s Circular Resolution is misconceived and cannot stand for the simple reason that Board of Directors of P1 as the ultimate holding company of P2, D5 and D6 did not authorize nor had knowledge of disposal P2’s shares in D5 and D6. In any case, fraud unravels all. Procurement of manufacturing licence for D5 [51] Khalilah Hanum (PW-8) from MITI testified that the Manufacturing Licence for D5 was granted based on P2’s factory’s address of P2 at Bentong, Pahang and the application was submitted on 16.10.2017. [52] Although D1 and D3 had informed Baker Tilly that for financial year ended 30.6.2017, D5 has ceased operations and was going to be struck off in the next financial year, D1 and D3 however proceeded to procure a Manufacturing Licence for D5 from 16.10.2017 onwards which was more than a year before disposal of D5 and D6 on 17.12.2018. That it does not make sense to apply for a Manufacturing Licence for D5 if the D5 were to be struck off was admitted by D3 under cross-examination: “AR: Do you agree if the company was to be struck off, and you told Baker Tilly in October 2017, it doesn’t make sense for D5 to apply for this license, correct? DW5: No. “ S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 39 [53] I find it inherently probable that in obtaining the Manufacturing Licence for D5, D1 and D3 would be able to benefit from the use of the Manufacturing Licence after disposal of D5 and D6 were undertaken and this same Manufacturing Licence was then used by D1 and D3 and the former employees of P1 after the disposal of D5 and D6 on 17.12.2018 to generate income for D5 and D6. With the licence, D5 can engage in manufacturing activities. D5 then can apply for a Cost Analysis (“CA”) and subsequently a Certificate of Origin (“CO”) from MITI enjoy preferential duties based on the free trade agreement between Malaysia and overseas countries like Turkey, India and Pakistan. The inference is irresistible that there was no real intention to strike off D5 and D6 as was told to Baker Tilly but that instead D5 after disposal, will be used to export knitted fabrics to overseas, and the proceeds collected therefrom will be for the personal benefit and interest of D1, D3, D4 and the close associates of D1. This is borne out by the evidence showing D5 was actively applying for CA and CO to MITI using D5’s Manufacturing Licence before the disposal and these applications to MITI continued even after the disposal of D5 and D6. D5 had applied for CA and CO to MITI since 2.4.2018 up until 7.12.2018 using D5’s Manufacturing Licence; there were 21 approvals for CA applied by D5 from 2.4.2018 to 13.11.2018; there were 3 CO transactions under D5 on 25.6.2018 and 27.6.2018 for the export of Knitted Fabrics to Sozteks Kumas Dis. Tic. Ltd in Turkey in the sum of USD88,508.16, USD84,576.61 and USD7,461.16 respectively. I do not believe D1 that these 3 CO transactions “were parked under the name of D5 to sustain the livelihood of D5 at the material time” for between 13.11.2018 to 7.12.2018, there were also 17 other approvals granted by MITI for D5’s application for CA. These applications for CA and S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 40 CO using D5’s Manufacturing Licence prior to the disposal made plain that D5 was actively running business activities and had not ceased operations. [54] D1 himself admitted plainly in cross-examination that D5 carried on business activities of exporting after D5’s disposal: “AR : Right. So clearly, Mr Woo, that even after the disposal of D5, there were still, there were economic activities, business activities for the exporting, yes? DW2 : Yes. [55] Even after the disposal of D5, the same Manufacturing Licence was used to export knitted fabrics overseas is borne out by numerous CO transactions undertaken by D5 from 2019, 2020 up until 2021 as follows: 55.1 38 CO transactions from 13.2.2019 to 26.6.2019 @ CBD-14 (Ecl. 235) @ pgs. 5 – 399]; 55.2 37 CO transactions from 26.6.2019 to 16.7.2019 @ CBD-15 (Ecl. 236) @ pgs. 5 – 361]; 55.3 43 CO transactions from 16.7.2019 to 2.8.2019 @ CBD-16 (Ecl. 237) @ pgs. 5 – 404]; 55.4 44 CO transactions from 2.8.2019 to 3.9.2019 @ CBD-17 (Ecl. 238) @ pgs. 5 – 401]; 55.5 44 CO transactions from 3.9.2019 to 27.9.2019 @ CBD-18 (Ecl. 239) @ pgs. 5 – 387]; S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 41 55.6 50 CO transactions from 1.10.2019 to 19.12.2019 @ CBD- 19 (Ecl. 240) @ pgs. 5 – 444]; 55.7 44 CO transactions from 6.1.2020 to 17.12.2020 @ CBD-20 (Ecl. 241) @ pgs. 5 – 330]; and 55.8 6 CO transactions from 15.2.2021 to 8.9.2021 @ CBD-20 (Ecl. 241) @ pgs. 331 – 374]. [56] In my considered view, these active business transactions contained in contemporaneous documents belies D3’s contention that the Manufacturing Licence obtained for D5 is to clear out government documents or the ‘hanging’ application in MITI system for the purpose of striking off D5. [57] The active business activities of D5 also implodes D1 and D3’s ipse dixit assertion that D5 has ceased business. [58] In my respectful view, the fact that D5’s 2018 Audited Accounts shows that D5 has suffered accumulated losses of RM4,504,260.00 during financial year 2017 and RM4,442,174.00 during financial year 2018 and that D6 has suffered accumulated losses of RM27,317.00 during the financial year 2017 and RM13,869.00 during the financial year 2018 as recorded in D6’s 2018 Audited Accounts do not necessarily mean they have ceased operations. In my view, business is cyclical, there will be good and lean times. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 42 [59] Syukri Sulaiman (PW-7) in his Supplemental Witness statement Q&A 14 WS-PW7B testified that the total value of invoices that has been issued by D5 to the overseas buyers after the Disposal Of Shares is in the sum of RM99,698,551.53 represented as follows: DESCRIPTION USD MYR Revenue from CO during financial year ended 30.6.2019 3,358,998.90 13,548,575.92 Revenue from CO during financial year ended 30.6.2020 18,542,856.51 76,309,961.88 Revenue from CO during financial year ended 30.6.2021 2,178,014.92 8,935,952.94 Revenue from CO during financial year ended 30.6.2022 63,350.00 264,296.20 GRAND TOTAL 24,143,220.33 99,058,784.94 [60] D1 and D3’s evidence that D5 and D6 had ceased operations simply do not accord with contemporaneous documentary evidence before the court and such evidence ought to be viewed for its veracity rather than plausibility. In this regard, I refer to Tindok Besar Estates Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 where Chang Min Tat FJ said at p 234: “…For myself, I rely in the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from them than to believe their 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 perception of the S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 43 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.” (own emphasis) [61] I do not accept D1 and D3’s postulation that the 306 CO transactions conducted by D5 after the Disposal Of Shares related to businesses closed by D4, neither do I accept their argument that D5 was under the control of D4 after the disposal of D5 and that D4 is the only person who had the authority to make decisions for D5 and to execute documents for the obtainment of CAs and COs for D5 after the disposal of D5. This is because: 61.1 D1 continued to be the director of D5 and D6 after the disposal before he resigned on 12.2.2019. D3 resigned as Group Accountant of P1 and P2 on 15.2.2019; D1’s argument that D5 and D6 were under the full control of D4 after the Disposal Of Sharesa and that he and D2 were merely helping D4 with some administrative works during the transition period and that they have submitted their resignation letters except that D4 failed to do housekeeping ring hollow to me; 61.2 D4 as purported new owner of D5 and D6 is not even a signatory of D5 and D6’s bank accounts; 61.3 D1 and D3 continued to be the authorised signatories of D5’s RHB Account after the disposal of D5 on 17.12.2018: S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 44 61.3.1 Pursuant to D5’s Director Resolution (Change of Bank Signatories) dated 16.7.2019, D1 and D3 together with Chang Shaw Horng and Cheong Wai Loon continued to become the authorised signatories of D5’s RHB Account effective 16.7.2019; and 61.3.2 Pursuant to D5’s Director Resolution (Change of Bank Signatories) dated 19.2.2020, D3 together with the current director of D5, William Chan Siew Kei (DW-4) are the authorised signatories of D5’s RHB Account together since 19.2.2020 61.4 D3 remains as the person in charge of all D5’s submissions of D5’s CO to MITI. PW8 from MITI confirmed by reference to the documents that D3 is the person in charge of submissions and MITI does do not have any records that D3, Au Chan Chun is no longer the authorised person in respect of submissions of CO by D5; 61.5 D3 did not care to update MITI’s records that he was not the person in charge of all D5’s CO submissions to MITI; 61.6 D1 admitted under cross-examination that the MITI documents for the 84 transactions were submitted by D3; S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 45 61.7 William Chan testified during cross-examination that after D5 was disposed off to D4, D3 was still responsible for the accounts of D5 and D6 after December 2018. [62] I find D1 and D3’s testimony that the reason D4 appointed “his staff” i.e. Chang Shaw Horng and Cheong Wai Loon, as signatories for the bank accounts of D5 and D6, instead of himself, because D4 wanted to concentrate on sourcing business overseas to be a convenient afterthought for firstly, it overlooks that both of them D1 and D3 were cheque signatories of D5; second, D4 is dead, a case of 'dead men tell no tales'; at any rate, it does not beggar belief that a prudent business man (if D4 is assumed as such) will appoint new staff to be cheque signatories as those who control the bank accounts control the company based on D1’s own evidence: “AR : And if you control the bank account, then effectively, 1 you control the company, you agree? DW2 : Yes. “ [63] As can be seen, the narrative relied on by D1 and D3 were blown to smithereens when tested under cross-examination. The importance of oral evidence through cross-examination is underscored by the following authorities: 63.1 Carmarthenshire County Council v Y [2017] 4 WLR 136 at [7] to [9]: 7 ….Oral evidence-in-chief now requires the permission of the judge be given. FPR r 22.11 provides the right to cross-examine a witness S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 46 on his or her witness statement. Thus, the general rule is that facts in issue are to be proved by written evidence-in- chief and oral evidence given under cross-examination. Of course, facts may also be proved by hearsay evidence pursuant to the Civil Evidence Act 1998 and FPR rr 23.2–23.5, but the general rule is that oral evidence given under cross-examination is the gold standard. 8 Why is this? It is because it reflects the long-established common-law consensus that the best way of assessing the reliability of evidence is by confronting the witness. In Crawford v Washington (2004) 124 S Ct 1354, para 62 Scalia J, when discussing the explicit command to afford cross- examination of witnesses in criminal cases contained within the Sixth Amendment to the US Constitution, stated: “To be sure, the clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined. Cf 3 Blackstone, Commentaries, at 373 (‘This open examination of witnesses … is much more conducive to the clearing up of truth’); M Hale, History and Analysis of the Common Law of England 258 (1713) (adversarial testing ‘beats and bolts out the truth much better’).” 9 It should not be thought that this consensus or viewpoint is confined to criminal causes. Thus, in Goldberg v Kelly (1970) 397 US 254, a case about the entitlement to receive certain federal welfare benefits, Brennan J stated, at p 269: “In almost every setting where important S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 47 decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” 63.2 Berezovsky v Abramovich [2012] EWHC 2463 (Comm): 92. … However, it would not have been practical, given the length and complexity of the factual issues involved, for the court to have required evidence in chief to have been given orally. It was for that reason that cross-examination, in particular of Mr. Berezovsky and Mr. Abramovich, assumed such a critical importance. [64] Evaluating and weighing the evidence, in my view, besides the matters alluded to in the 3 preceding paragraphs, it is inherently improbable that D4 could have been the beneficial owner of D5 and D6 as none of the cheques issued from the bank accounts of P2, D5 or D6 were made payable to D4. Instead, only a paltry sum of RM12,000.00 was paid to the personal representative of D4, Tai Ken Sin after the disposal of D5 and D6 between January 2019 to August 2019. [65] For that matter, neither is William Chan’s bare assertion that he was invited by D4 to join D5 and made a director, with his background as a lorry driver. Of the sum of RM261,866.82 paid to him, he testified that ‘approximately half’ was paid to the late D4 but however was not able to show any documentary proof except for his bare assertion. In any case, if half the money was meant for the late D4, it simply does not make sense to me for D5 to pay William Chan and then, for William Chan to pay D4. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 48 [66] As a director of D5, William Chan was a totally dreadful witness; he had not the faintest idea of his duties and glaringly, he did not even know where D5’s factory is when questioned during cross-examination. It can only mean there is no factory. Clearly to me, William Chan was spinning a story, and his evidence appears to be calculated to support D1 and D3’s machinations which are self-serving and a disingenuous opportunistic posturing to explain away their actions to take over D5 and D6 for a paltry sum of RM10.00 for themselves, rather than provide this court with frank disclosure. It is demonstrably clear to me that the central figures of D5 are D1 and D3. I do not find D1 and D3’s testimony that D3, Willam Chan, Chang Shaw Horng, Cheong Wai Loon and Jainuri Bin Sarip, joined D5 and D6 at D4’s request to be convincing at all. D4 is now dead and not able to testify. There is simply no credible evidence adduced to substantiate D1, D3 and William Chan’s testimony that D4 is the owner of D5 and D6; nether is there evidence that D4 had received cash payments or direct payments in his offshore account or any account at all. D1, D3 and William Chan were clearly making up stories as the evidence unfolded in Court depending on which direction the wind was blowing. [67] I find the Plaintiffs’ assertion that the motive for D1 and D3 to dispose off D5 and D6 ostensibly to D4 is purely for financial gain is not without basis from the payments uncovered through the banking documents secured from the discovery applications filed by the Plaintiffs. The Plaintiffs have shown: 67.1 D1 has caused to be issued cheques from P1, P2, D5 and D6 made payable to himself before and even after the S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 49 disposal of D5 and D6. There are 51 cheques totalling RM1,321,158.40 whereby 33 cheques were issued before D1 resigned as director of P2, D5 and D6 and 18 cheques were issued after D1 resigned as director of P2, D5 and D6. Of these 51 cheques pleaded by the Plaintiffs, D1 has admitted in the Agreed Facts that a total of 44 cheques in the total sum of RM1,267,984.49 have been issued to him from the account of P1, P2, D5 and D6 between 16.10.2018 to 6.4.2020. Out of these admitted 44 cheques, 26 cheques were issued to D1 from P1’s UOB Account, P2’s UOB Account, D5’s RHB Account and D6’s Alliance Account between 16.10.2018 to 28.3.2019 in the total sum of RM559,360.78. The balance of 18 cheques were issued to D1 from D5’s RHB Account, D6’s Alliance Account and D6’s UOB Account between 5.4.2019 to 6.4.2020 in the total sum of RM708,623.71. No documentary evidence or directors’ resolutions adduced during the trial by D1 to justify the purpose of these 44 cheques issued by P1, P2, D5 and D6 that were made payable to him. The only justification given by D1 in D1’s Witness Statement was that these cheques which contained his signature were all issued according to the mandate given to him as the authorised signatory. A company’s bank account cannot by any means be treated as a private ATM machine by its directors or officers. The refusal to explain what the payments were for, can only lead to one irresistible conclusion that these orgy of cheque payments were wrongly and fraudulently issued by D1 to S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 50 himself for his own personal benefit: 67.2 D1 has also caused to be issued cheques from D5 and D6 to the company and individuals who are related to D1 before and after the disposal of D5 and D6: (i) A total of 5 cheques in the total sum of RM30,367.65 issued between March 2019 to May 2019 and February 2020 from D6’s Alliance Account made payable to Avest Asset, a company belonging to D1; (ii) A Cheque dated 25.7.2016 in the sum of RM46,000.00 issued from D6’s UOB Account to D1’s wife, Wong Yuet Wan, (iii) 8 cheques in the total sum of RM135,884.86 issued between August 2019 to February 2020 from D5’s RHB Account made payable to D3; (iv) A total of 23 cheques in the total sum of RM1,314,915.60 issued between May 2018 to February 2020 from D5’s RHB Account and D6’s UOB Account made payable to Chang Shaw Horng; (v) 15 cheques in the total sum of RM400,240.27 issued between March 2019 to January 2020 from D5’s RHB Account made payable to Cheong Wai Loon; (vi) 4 cheques in the total sum of RM12,000.00 issued between January 2019 to August 2019 from D5’s RHB Account and D6’s Alliance Account made payable to Tai Ken Sin (D4’s son); (vii) 16 cheques in the total sum of RM261,866.82 issued between March 2019 to June 2020 from D5’s RHB Account and D6’s Alliance Account made payable to William Chan Siew Kei; (viii) 16 cheques in the total sum of RM53,316.39 issued between S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 51 March 2019 to December 2020 from D5’s RHB Account and D6’s Alliance Account made payable to Jainuri Bin Sarip. [68] D2 testified that Danny Chang Shaw Horng is the right-hand man of D1 and he takes instructions from D1. D2 also testified that D1, D3, Cheong Wai Loon, Chang Shaw Horng and Jainuri Bin Sarip were working together before the disposal of D5 and after D5 and D6 were disposed they left. D1 has admitted in the Agreed Facts that the number of cheques and the total amount of the cheques issued from D5 and D6 to Avest Asset, Wong Yuet Wan, D3, Tai Ken Sin, William Chan Siew Kei and Jainuri Bin Sarip are consistent with the Plaintiffs’ pleaded case. [69] D1 has also admitted during his cross-examination by the Plaintiffs’ counsel that he has issued or caused to be issued cheques that were made payable to Avest Asset, D3, Tai Ken Sin, William Chan Siew Kei, Jainuri Bin Sarip, Chang Shaw Horng and Cheong Wai Loon. However, in respect of the cheques issued to Chang Shaw Horng and Cheong Wai Loon, out of 23 cheques in the total sum of RM1,314,915.60 made payable to Chang Shaw Horng, D1 has only admitted in the Agreed Facts that there were 20 cheques in the total sum of RM469,345.61 issued between May 2018 to February 2020 from D5’s RHB Account, D6’s UOB Account and D6’s Alliance Account made payable to Chang Shaw Horng. Further, out of 15 cheques in the total sum of RM400,240.27 made payable to Cheong Wai Loon, D1 only admitted that there were 14 cheques in the total sum of RM396,609.15 issued between March 2019 to January 2020 from D5’s RHB Account made payable to Cheong Wai Loon. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 52 [70] There was no evidence adduced by D1 to justify the purpose of these cheques issued or caused to be issued by him from D5 and D6 that were made payable to the company and individuals related to him. Again, the justification given by D1 in D1’s Witness Statement was that these cheques which contained his signature were all issued according to the mandate given to him as the authorised signatory. [71] D1 has also issued and caused to be issued a total of 28 cheques in the sum of RM413,810.97 from D5’s RHB Account between March 2019 to December 2020 after the disposal of D5 and D6. The details of these 28 Cash Cheques issued from D5’s RHB Account are summarized in Schedule A attached to the Plaintiffs’ Written Submissions. These 28 cash cheques were excluded from the Agreed Facts. However, during cross-examination by the Plaintiffs’ counsel, D1 admitted that these 28 cheques are cash cheques issued from D5’s RHB Account between March 2019 to December 2020. During re-examination, D1 testified that these cash cheques may have been payment to the late D4. Again, D4 is dead and can tell no tale. Without evidence from D1 as to what these cash cheques were for, the irresistible inference must be that they were issued for his own benefit. [72] D1 has issued and caused to be issued a total of 98 cheques in the sum of RM6,458,806.45 from D5’s RHB Account between February 2016 to July 2020. The details of these 98 Cash Cheques issued from D5’s RHB Account are set out in Schedule B attached to the Plaintiffs’ Written Submissions (Encl. 380). These 98 cash cheques were excluded from the Agreed Facts. However, during cross-examination by the Plaintiffs’ counsel, D1 had admitted that these 98 cheques are cheques issued from D5’s RHB S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 53 Account between February 2016 to July 2020. Again there is no evidence from D1 and there is no Board of Directors’ resolution from D5 to explain the reasons for these 98 cheques. The same irresistible inference must be that all these cheques were wrongly and fraudulently issued or caused to be issued by D1 for his own personal benefit. [73] D3 did not care to explain why he was paid RM135,884.86 between August 2019 to February 2020 from D5’s account. D1 and D3’s arguments that the Plaintiffs have failed to adduce any evidence to show that there is any misfeasance in the withdrawals, that there were overlaps and or inclusion of returned cheques are but bare assertions to me as the burden has shifted to D1 and D3 to explain what the orgy of payments were for. [74] D1 and D3’s conduct throughout the entire saga gave good clues as to whether they are acting honestly and transparently or in a dishonest fashion. Lord Blackburn in Brogden v Metropolitan Railway Company (1876– 77) LR 2 App Cas 666 HL(E) had occasion to say: “…is trite law that the thought of man is not triable, for even the devil does not know what the thought of man is... [75] The concatenation of circumstances and events, the acts and conduct of D1 and D3, the totality of their dealings and the oral evidence pieced together and weighed, I find that there is credible, cogent, convincing, and compelling tangible evidence before the court that the Plaintiffs have sufficiently proven on a balance of probability that P2’s disposal of D5 and D6 ostensibly to D4 was wrongful without first obtaining the approval from S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 54 P1 as the ultimate shareholder of D5 and D6. The disposal was to enrich D1 and D3 and their cohorts. D1’s actions are patently in breach of his following duties as a director of P2, D5 and D6: 75.1 To exercise powers in accordance with the CA, for a proper purpose and in good faith in the best interest of the company (section 213(1)). 75.2 To exercise reasonable care, skill and diligence (section 213(2)). 75.3 To make business judgments for a proper purpose and in good faith, not to have a material personal interest in the business judgment and to act in the reasonable belief that the business judgment is in the best interest of the company (section 214(1)). 75.4 Not to engage in business to gain a benefit for himself or any other person, without the consent or ratification of a general meeting (section 218(1)(a to e): “Section 218(1) CA 2016: Prohibit ion against improper use of property, posit ion, etc. A director or off icer of a company shall not, without the consent or rat if ication of a general meeting- (a) use the property of the company; (b) use any information acquired by virtue of his posit ion as a director or off icer of the company; S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 55 (c) use his posit ion as such director or officer; (d) use any opportunity of the company which he became aware of, in the performance of his functions as the director or off icer of the company; o r (e) engage in business which is in competit ion with the company, to gain directly or indirect ly, a benefit for himself or any other person, or cause detriment to the company.” [76] It is clear that D1 and D3 has obtained secret profit by the cheques paid out to them from D5’s accounts. The evidence is undeniable. Their conduct is also dishonest or fraudulent, whether equitable fraud or common law fraud. [77] As for what constitutes dishonesty, this is set out in the judgment of Lord Nicholls in the decision of the Privy Council in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378; [1995] 3 All ER 97; [1995] 3 WLR 64 where he said: “…Honesty, indeed, does have a strong subjective element in that it is a description of a type of conduct assessed in the light of what a person actually knew at the time, as distinct from what a reasonable person would have known or appreciated. Further, honesty and its counterpart dishonesty are mostly concerned with advertent conduct, not inadvertent conduct. Carelessness is not dishonesty. Thus for the most part dishonesty is to be equated with conscious impropriety. However, these subjective characteristics of honesty do not mean that individuals are free to set their own standards of honesty in particular S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 56 circumstances. The standard of what constitutes honest conduct is not subjective. Honesty is not an optional scale, with higher or lower values according to the moral standards of each individual. … “All investment involves risk. Imprudence is not dishonesty, although imprudence may be carried recklessly to lengths which call into question the honesty of the person making the decision. This is especially so if the transaction serves another purpose in which that person has an interest of his own.” “…Ultimately, in most cases, an honest person should have little difficulty in knowing whether a proposed transaction, or his participation in it, would offend the normally accepted standards of honest conduct.” [78] To prove equitable fraud, the Plaintiffs do not need to demonstrate that D1 and D3 have an intention to deceive, the Plaintiffs only need to show that there was a relationship of trust and confidence between the parties, and that there has been unconscionable conduct by D1 and D3 - see Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751 FC: “[23] The 'fraud' of which Lord Halsbury spoke in Salomon v A Salomon & Co Ltd includes equitable fraud. In the recent Australian case ofThe Bell Group Ltd (In liquidation) v Westpac Banking Corporation (No 9) [2008] WASC 239; 70 ACSR 1, Owen J discussed the distinction between equitable fraud and fraud at common law. His Honour said: 4849One of the leading Australian texts on equitable principles is R Meagher, D Heydon and M Leeming, Meagher, Gummow and Lehane's Equity Doctrines and Remedies (4th Ed, 2002). When I refer to this text from time to time in these reasons I will do so by the shortened phrase 'Meagher, Gummow and Lehane'. At [12-050] the authors set out S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 57 a non-exhaustive list of factual and legal situations that have traditionally been treated as species of equitable fraud. They include: (a) misrepresentation by persons under an obligation to exercise skill and discharge reliance and trust (for example in fiduciary relationships), and inducements to contract or otherwise for the representee to act to his detriment in reliance on the representation; (b) the use of power to procure a bargain or gift, resulting in disadvantage to the other party; (c) conflict of interest against a duty arising from a fiduciary relationship; and (d) agreements which are bona fide between the parties but in fraudof third persons. ……….. 4853This, then, marks out a significant difference between common law fraud and equitable fraud. The latter does not require proof of an actual intention to deceive. To summarise, a plea of fraud at common law will not succeed absent proof of an intention to deceive. Such an intention is not an ingredient of equitable fraud which is, essentially speaking, unconscionable conduct in circumstances where there exists or is implied or imposed a relationship of trust or confidence.” See also Ktl Sdn Bhd Ktl Sdn Bhd v Leong Oow Lai [2014] MLJU 1405 at [93]. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 58 [79] That there is a relationship of trust or confidence between D1, D3 and the Plaintiffs cannot be disputed. Their disposing off D5 and D6 as shell companies and then take over its business, and make money to pay themselves at the Plaintiffs’ expense is unconscionable to come within equitable fraud. The Privy Council in Hart v O’Connor [1985] 1 AC 1000 at p 1024C described unconscionable conduct as follows: … "Fraud" in its equitable context does not mean, or is not confined to, deceit; "it means an unconscientious use of the power arising out of these circumstances and conditions" of the contracting parties; Earl of Aylesford v. Morris (1873) L.R. 8 Ch. App. 484, 491. It is victimisation, which can consist either of the active extortion of a benefit or the passive acceptance of a benefit in unconscionable circumstances. [80] The Plaintiff will have to show intention for common law fraud - Takako Sakao (supra): [23] …. The term common law fraud is often used to describe the tort of deceit, or the making of fraudulent misrepresentations. The tort of deceit is said to encompass cases where the defendant knowingly or recklessly makes a false statement, with the intention that another will rely on it to his or her detriment…….. In Armitage v Nurse [1997] EWCA Civ 1279; [1998] Ch 241; [1997] 3 WLR 1046, Millett LJ discussed the meaning of 'actual fraud' in the context of an exemption clause. At p 1053, His Lordship described actual fraud as connoting, at least, 'an intention on the part of the trustee to pursue a particular course of action, either knowing that it is contrary to the interests of the beneficiaries or being recklessly indifferent whether it is contrary to their interests or not'….. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 59 [81] Once fraud is proved, it vitiates all transactions whatsoever. Fraud unravels all. As cited by the Federal Court in Lai Fee v Wong Yu Vee [2023] 3 MLJ 503 at [63]: [63] In CIMB Bank Bhd v Maybank Trustees Bhd and other appeals, the Federal Court ruled that a party which had committed fraudulent misappropriation of trust monies could not benefit from its own fraud and that that party cannot rely on the exemption clause under the contract as a defence. Ariffin Zakaria CJ writing for the Federal Court referred to the following remarks of Lord Bingham in HIH Casualty and General Insurance Ltd, at para [15]: … fraud is a thing apart. This is not a mere slogan. It reflects an old legal rule that fraud unravels all: fraus omnia corrumpit. It also reflects the practical basis of commercial intercourse. Once fraud is proved, ‘it vitiates judgments, contracts and all transactions whatsoever’: Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at p 712, per Lord Justice Denning: ‘Parties entering into a commercial contract will no doubt recognise and accept the risk of errors and omissions in the preceding negotiations, even negligent errors and omissions. But each party will assume the honesty and good faith of the other; absent such an assumption they would not deal’. [82] In my view, there is sufficient direct as well as circumstantial evidence to prove the allegation of fraud whether equitable fraud or common law fraud. In Ng Pak Cheong v Global Insurance Co Sdn Bhd [1995] 1 CLJ 223; [1995] 1 MLJ 60; [1994] 3 AMR 2663 (HC), Mohamed Dzaiddin J (as he then was) dealt with the reception of circumstantial evidence in proving fraud. The learned judge said, “...it is not the law of evidence that every step in the allegation of fraud had to be proved by calling live and admissible evidence nor is it the law that fraud cannot be inferred in the appropriate S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 60 case. The inference, however, should not be made lightly; the circumstantial evidence must be so compelling and convincing that bearing in mind the high standard of proof the inference is nevertheless justified...”. [83] In CGU Insurance Berhad v Asean Security Paper Mills Sdn Bhd [2006] 3 MLJ 1; [2006] 2 CLJ 409 (CA) Gopal Sri Ram JCA said: “…While mere suspicion is insufficient, it is not the law that a litigant who alleges fraud must unravel each and every act of the person accused of fraud. Like any other fact, fraud may be inferred from circumstantial evidence with the added proviso that there must be a foundation of evidence and not mere suspicion.” (Emphasis added) [84] It is also useful to refer to s. 17 of the Contracts Act 1950 (“the Act”) where it defines ‘fraud’ as follows: “Fraud’ includes any of the following acts committed by a party to a contract or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contracts: (a) the suggestion, as to a fact, of that which is not true by one who does not believe it to be true; (b) the active concealment of a fact by one having knowledge or belief of the fact; (c) a promise made without any intention of performing it; (d) any other act fitted to deceive; and (e) any such act or omission as the law specially declares to be fraudulent.” S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 61 [85] The overarching question is how can it not be said in the given circumstances of this case that there was no fraud committed against the Plaintiffs when there is compelling evidence discussed earlier that D5 was actively trading? [86] Not withstanding D3 is never a director, however as the Group Accountant of P1, P2, D5 and D6, he is bound as an officer or employee to act in the best interest, to act in good faith and to exercise reasonable care, skill and diligence in performing his duties. Instead, in breach of his duties, he rendered dishonest assistance to D1 in the disposal of D5 and D6. [87] As a general rule for dishonest assistance, there must be a breach or trust or fiduciary by someone other than the defendant, the defendant must have helped that person in the breach, and the defendant must have a dishonest state of mind. [88] Dishonest assistance was defined by Lord Selbourne LC in Barnes v Addy (1874) L.R 9 Ch App 244 (Ch App), at pages 251 to 252 which states as follows: “…but on the other hand, strangers are not to be made constructive trustees merely because they act as agents of trustees in transactions within their legal powers …unless those agents receive and become chargeable with some part of the trust property, or unless they assist with knowledge in dishonest and fraudulent design on the part of the trustees.” [89] To establish dishonest assistance, the following elements must be established through an objective test: S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 62 89.1 there has been a disposal of the Plaintiff’s assets in breach of trust or fiduciary duty by someone other than the Defendant; 89.2 the Defendant had assisted or had procured the breach; 89.3 the Defendant had acted dishonestly or had a dishonest state of mind; and 89.4 this resulted in losses suffered by the Plaintiff. [90] The House of Lords in Twinsectra v Yardley [2002] 2 AC 164 (HL), adopted an objective-subjective test. In short, this test comprises of two key elements: 90.1 the Defendant’s behaviour was dishonest by the standards of honest people; and 90.2 the Defendants must be shown to have appreciated that their behaviour contravened ordinary standards of conduct. [91] The Twinsectra tests were upheld in 3 Federal Court t cases: 91.1 CIMB Bank Bhd v Maybank Trustees Bhd & Ors [2014] 3 MLJ 169 (FC) 91.2 CIMB Bank Bhd (formerly known as Bumiputera Commerce Bank Bhd) v Sebang Gemilang Sdn Bhd & Anor [2018] 3 MLJ 689 (FC), and S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 63 91.3 Malaysian International Trading Sdn Bhd v RHB Bank Bhd [2016] MLJU 13 [92] As alluded earlier, D1 is in breach of his fiduciary duties to P2, D5 and D6. To successfully demonstrate dishonest assistance, D3 must have assisted in the breach. D3 must have acted dishonestly, resulting in losses suffered by the Plaintiff. The Federal Court in CIMB Bank [2014] supra stated that: [146] ……those principles require more than knowledge of the facts which make the conduct wrongful. They require a dishonest state of mind, that is to say, consciousness that one is transgressing ordinary standards of honest behaviour…” [93] As accountant for D5 and D6 even after disposal of these companies going by William Chan’s testimony, D3 was clearly aware that the disposal of P2’s shares in D5 and D6 for a nominal value of RM10.00 each is not in the best interest of P2, D5 and D6; he was fully aware that the D5 and D6 have not ceased operations and he was aware of the active business that D5 at least was carrying on judging by the numerous CA and CO applied to MITI and he clearly knew that there was no intention to dispose off D5 and D6 at their true value and the disposal at a nominal value was to cheat and defraud the Plaintiffs. He assisted D1 to turn D5 and D6 to be shell companies, he assisted D1 to prepare the Percentage Ratios to justify the valuation of D5 and D6 at the nominal value of RM10.00, and he assisted to procure D2’s signature to the D5 and D6 agreements and the Director’s circular resolution of P2, D5 and D6 authorizing the disposal of the D5 and D6 shares and the Plaintiffs have suffered a loss. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 64 Unlawful/wrongful use of P2’s Manufacturing Licence dated 16.10.2017 to export materials worth RM24,347,200.66 to Turkey and Pakistan from 2017 – 2019? [94] The Plaintiffs’ witness, Syukri Sulaiman (PW-7) testified that: 94.1 from June 2017 to January 2019, 84 transactions were allegedly undertaken for or on behalf of P2 using P2’s Manufacturing Licence and CO to enjoy preferential duties; 94.2 Through these 84 transactions, materials worth USD6,077,683.64 (equivalent to RM24,347,200.66 as at 20.7.2020) were exported to Turkey and Pakistan; 94.3 these materials worth USD6,077,683.64 or RM24,347,200.66 as at 20.7.2020 exported to Turkey and Pakistan were not disclosed in P2’s audited accounts for year 2017 or 2018 or 2019. None of the proceeds from the materials exported to Turkey and Pakistan had been declared as revenue or sales proceeds to P2 and no dividend has been declared to P2; 94.4 from the list of the 84 transactions, the sales of goods for the financial year ended 30.6.2017 were recorded at USD8,637.25 (RM35,914.72). The sales of goods for the financial year ended 30.6.2018 were recorded at USD2,814,519.22 (RM9,984,079.63). The sales of goods for the financial year ended 30.6.2019 were recorded at USD3,254,527.17 (RM13,162,858.98); S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 65 [95] D1 admitted during cross-examination that he is not disputing the 84 transactions and he has directed D3 to undertake the 84 transactions: “AR : Right, ok. Ok. And, you are not disputing these 84 transactions, yes, Mr Woo? DW2 : No. AR : Correct. So, your, because you are aware of this, because you directed Mr Au to, you and Mr Au did this, right? You are aware that Mr Au did it, right, these 84 transactions? DW2 : Yes.” [96] When questioned by the Plaintiffs’ counsel, D1 alleged that 2 transactions No. 30 and No. 84 are from raw material to finished good namely transaction while the balance of 82 transactions are value added transaction whereby customer will have a preferred supplier. To support its case, the Plaintiff adduced contemporaneous evidence in the form of the CO, documents relating to the 84 transactions as well as P2’s audited reports for financial year ended 30.6.2017, 30.6.2018 and 30.6.2019. [97] Of these 84 unaccounted for transactions in P2’s books, Syukri Sulaiman (PW-7) testified as follows: 97.1 From the documents provided by RHB Bank pursuant to the Discovery Order, the Plaintiffs have discovered that part of the proceeds from the sale worth USD6,077,683.64 (equivalent to RM24,347,200.66 as at 20.7.2020) using P2’s S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 66 Manufacturing Licence amounting RM3,360,019.64 from “Sozteks Kumas Dis”, “Sertan Gokpinar”, “R.S. Traders” and “Navan Tekstil Dis Ticaret Ltd” were deposited into D5’s RHB Account as appearing in the bank statements of D5’s RHB Account for July 2018, February 2019, March 2019, April 2019, May 2019, September 2019, October 2019 and November 2019;“Sozteks Kumas Dis”, “Sertan Gokpinar”, “R.S. Traders” and “Navan Tekstil Dis Ticaret Ltd” are listed as the buyers in the 84 transactions which were allegedly undertaken for or on behalf of P2 using P2’s Manufacturing Licence 97.2 Plaintiffs have also discovered that part of the proceeds from the sale worth RM24,347,200.66 using P2’s Manufacturing Licence amounting to RM354,854.00 been deposited into D6’s Alliance as appeared in the bank statements of D6’s Bank Account for February and March 2019; “Ali Aslan” was also listed as one of the buyers in the 84 transactions; 97.3 From the sum of RM3,360,019.64 that went into D5’s RHB Account as pleaded by the Plaintiffs, D1 and D3 have admitted in the Agreed Facts that the total amount of payment from overseas buyers that went into D5’s RHB Account is in the sum of RM3,279,726.89; 97.4 D1 and D3 have also admitted in the Agreed Facts (Deposit of Payments by Overseas Payors) that the total amount of S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 67 payment from overseas buyers that goes into D6’s Alliance Account is in the sum of RM354,854.00; [98] D1 and D3 produced no evidence that the 84 transactions have been accounted for in the books of the P2. D1 and D3 instead argued that (i) the Plaintiffs have not produced their bank statements to substantiate their allegations that none of the proceeds from the 84 Transactions were paid to P2 or P1; (ii) P2’s 2020 Audited Accounts, P2’s 2021 Audited Accounts and P2’s 2022 Audited Accounts are unqualified audited accounts filed AFTER the commencement of this Suit on 28.7.2020 and these accounts made no mention of any missing proceeds, (iii) the payments made to D5 and the payments made to D6 does not match the amounts in the 84 Transactions as such, the Plaintiffs have failed to discharge their burden in proving that the payments made to D5 and the payments made to D6 were payments made pursuant to the 84 Transactions. [99] With respect to D1 and D3’s contention of that P2’s audited reports of 2020, 2021 and 2022 are unqualified in my view does not bar the Plaintiffs from raising the complaints that the 84 transactions were not reflected in P2’s audited reports for financial year ended 30.6.2017, 30.6.2018 and 30.6.2019. In this regard, the description of the role of an auditor as exposited by the English Court of Appeal in the case of Re City Equitable Fire Assurance Co Ltd [1924] All ER Rep 485 at page 492 is instructive: “But it has been well said that an auditor is not bound to be a detective or to approach his work with suspicion or with a foregone conclusion that there is something wrong. “He is a watchdog, but not a bloodhound.” That metaphor was used by LOPES, LJ, in Re Kingston Cotton Mill Co (No 2) (8). Perhaps, S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 68 casting metaphor aside, the position is more happily expressed in the phrase used by SARGANT, LJ, who said that the duty of an auditor is verification and not detection.” [100] In addition, given that the role of an auditor in performing a statutory audit is merely to express an opinion on the financial statements of a company, it must follow that any audited financial statement ought not to be automatically regarded as conclusive evidence that the accounts of the company itself is free from inaccuracies or errors. Our own Court of Appeal in the case of Soo Boon Siong v Saw Fatt Seong & Ors [2008] 1 MLJ 27 also inter alia held as follows: - "the fact that the director had signed documents concerning the audited accounts including the directors' reports is not conclusive of the validity or truthfulness of the accounts. Thus, a director who has approved the company's audited accounts is still entitled to challenge the correctness of such audited accounts". [Own Emphasis] [101] In short, the role of an auditor is essentially confirmatory rather than investigatory. Thus, any audited accounts are not and would not act as conclusive evidence of the accuracy or truthfulness of the accounts. As such, the fact the auditor did not raise any issue in the audited financial statement is by no means a declaration of truth by the auditor that all the accounts and financial records of P2 are in order. [102] D1 and D3 did not produce an iota of evidence to rebut P2’s evidence on the 84 transactions. Again, the Tindok Besar principle of S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 69 contemporaneous documents must weigh heavily against the D1 and D3 particularly when the 84 transactions were not disputed by D1 as alluded to earlier. D2 is not liable [103] Ps allege that the 2nd Defendant has purportedly breached his fiduciary duties as a director of 2nd Plaintiff, 5th and 6th Defendants pursuant to sections 211, 213(2), 214 and 215 of the Companies Act, 2016 and/or under his contractual obligations as an employee of the 2nd Plaintiff, 5th and 6th Defendants. (See page 269.1 at p. 203 of the Plaintiffs’ Written Submissions [Encl. 380]) [104] I have considered that D2 ‘s level of education is only up to Form 5 and after he was appointed as the director of the 2nd Plaintiff, 5th and 6th Defendants, his duties and involvement were limited to the production aspect of the 2nd Plaintiff’s Factory in Bentong; he had no expertise in the accounting and corporate matters of the 2nd Plaintiff, 5th and 6th Defendants and was never been invited or included in any board of directors meeting or in any management meeting of the 2nd Plaintiff, 5th and 6th Defendants. [105] In Q&A-2 of Supplementary Witness Statements (WSDW-3B) (Encl. 350)]: “I relied heavily on the representations made by the 1st and 3rd Defendants when signing the companies’ documents given to me. To be frank, I had difficulties understanding the contents and significance of the companies’ documents as that were outside of my area of expertise. Further, as the 1st Defendant was my superior, I believed that I should have obeyed him.” S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 70 [106] D2 also testified that D1 is a domineering person; that nobody dares to say no to D1 and that he has signed numerous documents based on D3’s assurance that D1 would bear the responsibilities if anything happened. [107] D1and D3 dispute D2’s testimony in the preceding paragraph on the grounds that there is no evidence to substantiate the same but in my respectful view, evidence includes oral evidence – see section 3 Evidence Act 1950: "evidence" includes— all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry: such statements are called oral evidence; and “fact” means and includes— (a) anything, state of things or relation of things capable of being perceived by the senses; (b) any mental condition of which any person is conscious; [108] D2 also stated that he has signed the D5 Agreement and the D6 Agreement in the best interest of P2. [109] In applying the ‘Charterbridge Principle’ and weighing the evidence by reference to ascertaining the state of mind of D2 on whether as an intelligent and honest man, he was honestly acting in the discharge of his powers in the interests of P2, D5 and D6 when approving the divestment of D5and D6 and paying due regard to the circumstances surrounding the decision, I accept D2’s evidence and find: S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 71 109.1 an honest and intelligent man in the position of D2 acted reasonably when he relied on the representations of D1 and D3 at all times; there was no reason no basis for D2 not to trust D1 and D3 and 109.2 D2 had signed various documents including the D5 Agreement and the D6 Agreement, on the instructions of D1 and D3. [110] D2 was not an executive director of P2, D5 and D6 – he was entitled to rely on what D1 and D3 told him. In AWA Ltd v Daniels Trading As Deloitte Haskins & Sells And Others (1992) 7 ACSR 759, the Supreme Court of New South Wales held at pg. 867 – 868 and 878 – Pg 867 “Another division of function is between the non- executive directors and the chief executive officer or managing director. Generally, a chief executive is a director to whom the board of directors had delegated its powers of management of the corporation’s business. Usually, the chief executive is employed under a contract of service which will either include an express term or, in the absence of an express term, an implied term, that the chief executive will exercise the care and skill to be expected of a person in that position. The degree of skill required of an executive director is measured objectively. In contrast to the managing director, non-executive directors are not bound to give continuous attention to the affairs of the corporation. Their duties are of an intermittent nature to be performed at periodic board meetings, and at meetings of any committee of the board upon which the director happens to be placed. Notwithstanding a small number of professional company directors there is no objective st andard of the reasonably competent S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 72 company director to which they may aspire. The very diversity of companies and the variety of business endeavours do not allow of a uniform standard. … Pg 868 A director is justified in trusting officers of the corporation to perform all duties that, having regard to the exigencies of business, the intelligent devolution of labour and the articles of association, may properly be left to such officers: Dovey v Cory, supra, 485 –6, 492 –3; Re Brazilian Rubber Plantations & Estates Ltd, supra, 438; Huckerby v Elliot [ 1970] 1 All ER 189 at 193, 195. A director is entitled to rely without verification on the judgment, information, and advice of the officers so entrusted. A director is also entitled to rely on management to go carefully through relevant financial and other information of the corporation and draw to the board’s attention any matter requiring the board's consideration. The business of a corporation could not go on if directors could not trust those who are put into a position of trust for the express purpose of attending to details of management: American Law Institute “Principles of Corporate Governments, Analysis and Recommendations” pp 75, 176. Reliance would only be unreasonable where the director was aware of circumstances of such a character, so plain, so manifest and so simple of appreciation that no person, with any degree of prudence, acting on his behalf, would have relied on the particular judgment information and advice of the officers: Re City Equitable Fire Insurance Co, supra, 428. A non- executive director does not have to turn him or herself into an auditor, managing director, chairman or other officer to find out whether management are deceiving him or her: Graham v Allis-Chalmers Manufacturing Co 188 A 2nd 125 at 130. …… Pg 878 “… the commercial reality of the matter is that, in these days of conglomerates and perhaps transnational conglomerates at that, the opportunity for non- S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 73 executive directors to exercise meaningful control over management is as slight as the ability of ministers to control a vast bureaucracy. [111] AWA Ltd v Daniels Trading As Deloitte Haskins & Sells And Others’s principles that the non-executive directors' duties cannot be as co- extensive as that of executive directors was accepted and followed in Sime Darby Bhd & Ors v Dato' Seri Ahmad Zubair @ Ahmad Zubir bin Hj Murshid & Ors (Tun Musa Hitam & Ors, third parties) [2012] 9 MLJ 464. [112] I find on the whole, that D2 was a credible witness. If at all, there were discrepancies in his evidence, they were minor or not relevant and does not change the fact that his evidence when analysed, pointed to a reliance on D1 and D3’s representations. He signed what he did bona fide and in the best interests of P2, D5 and D6 and not exercised for an improper purpose in breach of his statutory, fiduciary and common law duties as director. In this regard, it has not escaped my attention that Ps acknowledge that: (i) D2 was deceived by the 1st and 3rd Defendants in the disposal of the 5th and 6th Defendants; (ii) D2 is an honest witness; and (iii) the Plaintiffs are not pursuing other claims or cause of actions against the 2nd Defendant as pleaded in the Plaintiffs’ Amended Statement of Claim dated 11.11.2021 except for the alleged breach of fiduciary and/or contractual duties to the 2nd Plaintiff, 5th and 6th Defendants. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 74 [113] Even if I am wrong that notwithstanding D2’s honesty and the reasonableness of his action in making the D5D6 divestment, that there is nevertheless a breach of duties, given the factual matrix of this case and considering all the circumstances, it is certainly arguable and persuasively so that D2 ought fairly to be excused for his default or breach of duty (if any). I thus exercise my discretion to exculpate and relieve D2 wholly for default or breach of duties (if any) under s. 581, CA 2016. Claim by D1 against 2nd TP [114] The issue is whether PP2 ought to be made liable to D1 for the entirety of the Plaintiffs’ claim against the 1st Defendant. [115] The whole basis of D1’ claim is that: 115.1 D2, TP2 and Fong Wai had taken over the management of P2 from D1 when D1 resigned on 12.2.2019; 115.2 D2, TP2 and Fong Wai did not raise any complaint of defective or incomplete handover against D1 at the material time; by dint of fact that D2, TP2 and Fong Wai had taken over the management of P2 after D1 resigned on 12.2.2019 without raising any complaints is sufficient to show that the handover is in order; 115.3 Thereafter, P2’s New Board Of Directors (Syukri and Amirul Afif Bin Abd Aziz) who were appointed on 19.7.2019 took S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 75 over the management of P2 from D2, TP2 and Fong Wai around July 2019 when D2, TP2 and Fong Wai resigned from P2 on 22.7.2019; 115.4 P2’s New Board Of Directors did not take over P2 from D1 was admitted by Kok Pauline and TP2 during cross- examination; 115.5 As such, if there is any failure in properly keeping all of the documents related to the business dealings of D5 and D6 belonging to P2, the Disposal Of Shares and the 84 Transactions as alleged by P2’s New Board Of Directors, it is the responsibility of D2, TP2 and Fong 111.6 Thus , in the event that this Court allows any of the Plaintiffs' claims against D1 based on the loss of P2’s documents, all reliefs, damages, benefits and/or costs allowed by this Honourable Court against D1 shall jointly or severally be borne by D2 and TP2. [116] It cannot be disputed that P1 had lodged a police report against D1 on 25.4.2019 regarding the Disposal Of Shares and another police report against D1 on 30.4.2019 regarding missing documents belonging to P1. These police reports were suggested by D1 to be afterthoughts as they were made after D1 brought Suit 176 against P2 on 22.3.2019 and after D1 brought Suit 588 against P1 on 4.4.2019. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 76 [117] TP2 in summary submitted that: 117.1 TP2 was not empowered with any authority by the Plaintiffs’ board of directors to take any action against D1 in respect of the handover of the management of P2 by D1 and before a complaint could be made, proper investigation need to be carried out; 117.2 The acts upon which the Plaintiffs have predicated this action against the Defendants occurred prior to TP2’s appointment as a director of P2; and 117.3 D3 has confirmed during cross-examination that TP2 should not be liable for the Disposal Of Shares, the Obtainment Of COs and the 84 Transactions. [118] I find there is merit in TP2’s postulation that before a complaint can be made, proper investigation must first be carried out; that to this court is common sense. [119] In analysing this TP claim, it is to be noted that D1’s SOC does not plead material facts as to whether he is seeking a contribution or an indemnity from TP2 except that in para 15(a) relief that if D1 is found liable to the Ps, TP2 and D2 are to be jointly and severally liable to pay the entire claim. [120] This prayer in my view is somewhat contradicted by para 123 of the D1’s submissions in enc 375 and para 43 and 46 of submissions in reply enc S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 77 389 where he now seeks “in the event that this Honourable Court allows any of the Plaintiffs' claims against D1 based on the loss of P2’s documents, all reliefs, damages, benefits and/or costs allowed by this Honourable Court against D1 shall jointly or severally be borne by D2 and TP2.” Yet again in the same para 123 of enc 375 and para 46 of enc 389, D1 again asks for prayer 15 (a) to be allowed! [121] Even after a striking out application was made against D1 in enc 199, D1 did not see it fit to amend his SOC against the TPs. [122] Whether for contribution or indemnity, the material facts must be pleaded for the purpose of formulating a claim for contribution or indemnity. I find in any case there is in law no basis for a claim whether for contribution or indemnity. No Common Liability which Gave Rise to Right to Contribution [123] A right to contribution only arises in situations where a common liability exists between parties. Such a common liability usually exists between inter alia joint debtors, joint trustees, joint sureties or joint tortfeasors. In Halsbury’s Laws of England, Volume 9(1) (4th Edition), paragraphs 1116-1117, it is stated as follows: “A right to contribution arises whenever a person, who owes with another a duty to a third party and is liable with that other to a common demand, discharges more than his proportionate share of that duty. The essence of the right to a contribution lies in the liability to a common demand; and where there is such liability, the court will, subject to any S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 78 contractual provision modifying or limiting any claim to a contribution, make an assessment of contribution. A common liability being the essence of the right of contribution, no such right against one tenant in common existed in favour of the other tenant in common of a house, who had spent money on proper and reasonable repairs…” [124] What is a common liability can be found in Lee Swee Seng J’s decision in Sime Darby Bhd & Ors v Dato’ Seri Ahmad Zubair @ Ahmad Zubir bin Hj Murshid & Ors (Tun Musa Hitam & Ors, third parties) [2012] 9 MLJ 464, in which he held at paragraphs [84] to [87] that: “[84] The third parties also pointed out that a claim for contribution is in effect a claim to a partial indemnity and it usually arises between joint debtors, joint tortfeasors and the like. I agree that the right to contribution depends on whether liability was co-ordinate, in the sense that liability is of the same nature and to the same extent. Parties must be in pari delicto and a party who is guilty of fraud, illegality, wilful misconduct or gross negligence is not entitled to contribution from his fellow directors when it has not been pleaded how they have been a participating party to the fraud, illegality, wilful misconduct or gross negligence. [85] In Burke & Anor v LFOT Pty Ltd (2002) 1 CLR 282 the first appellant, B, was a director of the second appellant, Hanave Pty Ltd (Hanave). Hanave purchased a commercial property from the first respondent, LFOT. During the course of the sale of the property LFOT engaged in misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) (the Act). LFOT's conduct induced Hanave to purchase the property at an inflated price. B was Hanave's solicitor and he acted for Hanave in its purchase of the S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 79 property. In doing so he breached his duty of care to Hanave by failing to check the accuracy of the representations made by LFOT. [86] The Federal Court assessed Hanave's loss under s 82 of the Act as $750,000, and it ordered LFOT to pay that sum to Hanave. The Federal Court also found that LFOT was entitled to a 50% contribution from B because B was also liable to Hanave. [87] B appealed to the High Court and in allowing the appeal the High Court held, inter alia, at pp 292–293 that: [15] The doctrine of equitable contribution applies both at common law and in equity. It is usually expressed in terms requiring contribution between parties who share 'co-ordinate liabilities' or a 'common obligation' to 'make good the one loss'. More recently, in BP Petroleum Development Ltd v Esso Petroleum Co Ltd the right to contribution was said to depend on whether the liability was 'of the same nature and to the same extent’. The notion of 'co-ordinate liability' is one that depends on common interest and common burden. Perhaps because, at common law, there was no general right of contribution between tortfeasors, the notion of 'co-ordinate liability' has not traditionally been expressed in terms requiring equal or comparable culpability or a requirement that the acts or omissions of the persons in question be of is equal or comparable causal significance to the loss in respect of which contribution is sought. However, the requirement that liability be 'of the same nature and to the same extent', as stated in BP Petroleum, is apt to include notions of equal or comparable culpability and equal or comparable causal significance. [17] Culpability, as a facto bearing on the right to equitable contribution, clearly explains the requirement that for there to be a S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 80 contribution between co-trustees, the co-trustees must be in pari delicto. So, too, it explains the rule that a person who has been guilty of fraud, illegality, willful misconduct or gross negligence is not entitled to contribution from his partners. “(Emphasis added.) [125] A common liability is liability that is of the same nature and of the same extent. In the instant case, Plaintiffs’ claim is for breaches of statutory and fiduciary duties and a restoration of the benefit that the Defendants had received. D1’s liability, if so found, will be damages and to restore the benefit he and his cohorts received. These liabilities are not shared by TP2: 125.1 The Plaintiffs are not claiming relief for which D1 and TP2 are commonly liable for.; 125.2 Significantly, a right to contribution only arises if D1 discharge more than his proportionate share of that liability in response to a common demand on a common liability. There is therefore no right to contribution in the instant case. No Obligation to Indemnify [126] Three (3) situations may give rise to a right to indemnity. They are from contract, whether express or implied, from an obligation resulting from the relation of the parties, or by statute. In Halsbury’s Laws of England, Volume 49 (5th Edition), paragraph 1257: “Rights of indemnity may arise from contract, express or implied, from an obligation resulting from the relation of the parties, or by statute. Whether in any particular case any right of indemnity arises, and the extent of any such S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 81 indemnity, will depend upon the terms of the contract or statute in question, or the nature of the relationship.” [127] None of these grounds are pleaded as a basis for D1’s claim of indemnity. I examine the relationship between D1 and TP2, to determine if such rights to indemnity arises in favour of D1. [128] The categories of relationships which are recognised by law or in equity to give rise to a right to an indemnity are succinctly set out by Lee Swee Seng JC’s (now JCA) in Sime Darby (supra) as follows: “[42] There are certain recognised relationships that by law or in equity, may give rise to a right to an indemnity. [43] As illustrated in Pinsler on Civil Practice in Singapore and Malaysia, Vol 2, Chapter XIII at para 43, an obligation to indemnify in law or equity may arise in the following circumstances: An agent may have the right of an indemnity against his principal in respect of his actions within the scope of his authority. A trustee may be entitled to an indemnity in respect of a breach of trust. A co- guarantor might be entitled to be indemnified by another co- guarantor. [44] Halsbury's Laws of England, (5th Ed), Vol 49, para 1260 at p 595 lists the following in regard to indemnities as incidents of legal relationships: A right of indemnity is an incident of certain legal relationships, for example those of agency or employer and employee, where an agent or employee is liable to be indemnified by his principal or employer against liabilities incurred in the reasonable performance of his agency or employment. Rights of indemnity may also arise under S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 82 principles of equity. In case of breach of trust a trustee may be indemnified out of the interest of a beneficiary who has instigated the breach or be entitled to contribution or indemnity from a co-trustee. A personal representative is entitled to be indemnified out of the estate for his proper expenses. A receiver is ordinarily entitled to be indemnified out of the assets against liabilities properly incurred by him. A director of a company regulated by the Companies Act 1985 is entitled to be indemnified by the company for all debts, expenses and liabilities incurred in the ordinary course of business, and for money borrowed and applied for those purposes. The trustees or committee of a club are not in general entitled to be indemnified by the members against liabilities incurred on behalf of the club.” [129] It was further expounded in the Privy Council decision of Eastern Shopping Company Limited v Quah Beng Kee [1924] AC 177 that a right to indemnity usually exists between parties where there is an obligation or duty upon one party to indemnify the other. Lord Wrenbury held, at pp.182-183: “A right to indemnity exists where the relation between the parties is such that either in law or in equity there is an obligation upon the one party to indemnify the other. There are, for instance, cases in which the state of circumstances is such that the law attaches a legal or equitable duty to indemnify arising from an assumed promise by a person to do that which, under the circumstances, he ought to do. The right to indemnity need not arise by contract; it may (to give other instances) arise by statute; it may arise upon the notion of a request made under circumstances from which the law implies that the common intention is that the party requested shall be indemnified by the party requesting him; it may arise (to use Lord Eldon's words in Waring v. Ward(1); a case of vendor and purchaser) in cases in which the Court will "independent of contract raise upon his (the purchaser's) conscience an obligation to indemnify the vendor against the personal obligation" of the S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 83 vendor. These considerations were all dealt with by the Lords Justices in Birmingham and District Land Co. v. London and North Western Ry. Co. (2)” [130] D1 has not pleaded any relationship which the law has recognised to have given rise to a right of indemnity in favour of D1’s against TP2. The Court of Appeal case of BPI International Finance Ltd (formerly known as Ayala Finance (HK) Ltd) v Tengku Abdullah Ibni Sultan Abu Bakar [2009] 4 MLJ 821 speaking through Sulaiman Daud JCA stated: “[23] From the authorities aforesaid, it can be seen that there are many ways in which a right of indemnity may arise. As such, in our view, in order to maintain a claim for indemnity as in the present case, the respondent not only has to plead that the appellant was in breach of its contractual duty or its duty of care to him but also the cause or causes of action for such an indemnity, ie whether founded on an express or implied contract, or on an implied indemnity arising from the relationship between the parties.” [131] As a director at the material time, TP2 also owe no duty to D1. As Abdul Malik Ishak JCA held in Dato' Abul Hasan bin Mohamed Rashid v Multi-Code Electronics Industries & Anor [2012] 5 MLJ 176, at [29]: “Directors owe their duties to the company and not to individual shareholders. In Percival v Wright [1902] 2 Ch 421, a case in point, concerned the directors who purchased shares from existing shareholders without disclosing that they were in the process of negotiating a takeover bid at a higher price. It was held that since the directors owed no fiduciary duties to the shareholders, they could not be liable for the non-disclosure. It must be emphasised that textbook writers have criticised the decision of this case. But the principle still stands: directors owe their duties to the company and not to individual shareholders.” S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 84 [132] It is therefore clear there is no nexus between D1 and TP2 which would bring them within the ambit of a legal relationships giving rise to a right to indemnity. [133] TP2’s submission that the third party claim is one of indemnity is as such, off the mark. As I see it, the third party claim is made O16 r 1 (b) and (c) ROC 2012. On the evidence adduced, the TP claim whether under 016 r 1 (b) or (c) is misconceived as TP2 was not privy to the wrong doings, it bears repetition that TP2 was not a director of the 2nd Plaintiff when the disposal of the 5th and 6th Defendants were carried out; TP2 could not have made any decision or sign any documents in respect of D5’s obtainment of the certificate of origin by D5; and TP2 was not a director of P2 when the 84 transactions were carried out. In short, TP2 was not privy to any of the wrongdoings alleged against D1. Fact that TP2 with others took over management of P2 for a 6 month’s period does not negate the wrong doings of D1. [134] The Ps did appoint 3 individuals to act on the Plaintiffs’ behalf as regards the Defendants’ wrongdoings and TP2 was not one of these individuals. Given P1 which is the holding company of P2, had lodged a report with the police and the Companies Commission of Malaysia of the wrongdoings around April 2019, there is no need for the Third Parties to make further complaints regarding the handover of P2’s management which was defective or incomplete. [135] As such, in para 15 (a) of D1’s SOC, to claim that if this court allows the Plaintiffs’ claim against D1, then TP2 and D2 ought to JOINTLY OR S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 85 SEVERALLY bear the same on the sole ground that TP2 did not raise any complaint in respect of the handover of the Plaintiffs’ management and documents by D1 and/or D3 is hopelessly misconceived. There is also no notice issued to co-defendant D2. As such, D1’s TP claim is dismissed with costs. Others [136] The Plaintiffs contended that D1, D3 and D4 have taken away the documents in respect of the business dealings of P1, P2, D5 and D6. Missing documents is not pleaded nor is a claim for the tort of conversion of the documents pleaded. No specific relief is sought for these missing documents. That ends the claim. Evaluation and assessment of the credibility of the witnesses [137] As “evidence” is not confined to documents and the Court is enjoined by s. 3 of the Evidence Act to consider oral statements by witnesses, the evaluation and assessment of the credibility (or otherwise), of the witnesses were crucial to the present case. In assessing credibility of the witnesses, I have taken note that credibility of a witness embraces not only the concept of his truthfulness i.e. whether the evidence of the witness is to be believed but also the objective reliability of the witness i.e. his ability to observe or remember facts and events about which the witness is giving evidence and this court must pay attention to a number of factors which, inter alia, include the following as exposited by Gillen J in Sean Thornton (a minor by his mother and next friend) v Northern Ireland Housing Executive [2010] NIQB 4: S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 86 (i) The inherent probability or improbability of representations of fact; (ii) The presence of independent evidence tending to corroborate or undermine any given statement of fact; (iii) The presence of contemporaneous records; (iv) The demeanour of witnesses e.g., does he equivocate in cross examination; (v) The frailty of the population at large in accurately recollecting and describing events in the distant past; (vi) Does the witness take refuge in wild speculation or uncorroborated allegations of fabrication; (vii) Does the witness have a motive for misleading the court; and (viii) Weigh up one witness against another [138] Sir George Farwell in the Privy Council case of Bombay Cotton Manufacturing Company v Motilal Shivlal ILR 1915 39 Bom 386, PC, in addressing the credit of a witness upon cross-examination, said that ‘it is most relevant in a case where everything depends on the judge’s belief or disbelief in the witness’ story.’ [139] In deciding the matter, I have preferred the evidence of the Plaintiffs’ witnesses whom I viewed as ‘more credible’ in support of the Plaintiffs’ contentions, as compared to the Defendants’ witnesses (except for S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 87 D2) whom I found ‘evasive’ when troubling questions were put to them, and were not credible at all. The Defendants’ witnesses’ evidence (except for D2) were riddled with contradictions and simply do not add up. Even if there were discrepancies in the Plaintiffs’ witnesses' evidence, if at all, were minor and not relevant, and on the whole, their evidence was comprehensive, compelling, convincing and consistent with the documents and the overall probabilities. In the context of the entirety of the evidence before the court, any lingering doubts that I have, I would resolve in favour of the Plaintiffs. [140] For the 1st question, my answer is in the affirmative, that the Plaintiffs have proven their case on a balance of probabilities as concerns D1. D2 is not liable whilst D3 had breached his contractual duties, breached the trust reposed in him as group accountant and committed fraud. [141] As for the 2nd question, the answer is in the affirmative. The Plaintiffs have suffered losses as a consequence of the D1’s breaches and dishonest assistance was rendered by D3 and D4. [142] As for the 3rd Question whether D1, D2 and D3 are liable to account and pay for the 84 transactions worth USD6,077,683.64 (equivalent to RM24,347,200.66 as at 20.7.2020), the answer is in the affirmative against D1 and D3. Exemplary/aggravated damages [143] In Khaw Cheng Poon & Ors v Khaw Cheng Bok & Ors and another appeal [2005] 6 MLJ 540; [2005] 3 CLJ 753, Gopal Sri Ram JCA (as he then was) delivering the judgment of the Court of Appeal said: S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 88 … Exemplary damages are only awarded in special circumstances. These circumstances are contained in the speech of Lord Devlin to which we have already referred, that no new categories are admissible to the Devlin list has now been settled in the decision of the House of Lords in Cassell & Co Ltd v Broome [1972] AC 1027. (Emphasis added.) [144] In Rookes v Barnard and others [1964] AC 1129, Lord Devlin stated unlike ordinary damages whose purpose is to compensate, that of exemplary damages is to punish and deter, and there are two categories of cases when it should be awarded, viz: (a) oppressive, arbitrary or unconstitutional action by the servants of Government; (b) the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff. [145] In Big Junkyard Sdn Bhd & Anor v Chan Kah Wai [2023] 1 CLJ 564 the court held: "[41] Thus, aggravated damages are given as additional compensation where there is injury to the feelings of the plaintiff that is caused by or exacerbated as a result of exceptional conduct of the defendant. The conduct must be high- handed or malicious act or an act done in an oppressive manner. Mere wrongful conduct is not sufficient. There must be something exceptional in the act that was done. The matter was lucidly stated by Lord Devlin in Rookes v Barnard [1964] AC 1129 at page 1232 as follows: S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 89 I doubt whether the facts disclosed in the summing up shows even a case for aggravated damages … present there seems to be no evidence that the Respondents were motivated by malevolence or spite against the appellant ... Again in so far as disclosed in the summing up there was no evidence of offensive conduct or of arrogance or insolence. (Emphasis added.) [42] ………there are two elements relevant to the availability of an award for aggravated damages: firstly, exceptional or contumelious conduct or motive on the part of the defendant in committing the wrong; secondly, intangible loss suffered as a result by the plaintiff, that is injury to feelings or personality. Based on the above principles, the facts of the case at hand does not make out a case for aggravated damages. There is nothing exceptional about the action of the second defendant. There is no evidence of offensive conduct or arrogance or insolence of motive or that the second defendant was motivated by malevolence or spite….." [146] Having regard to the facts and circumstances of the matter before me, it is my considered view that the conduct of the D1 and D3 here does not justify the award of exemplary damages against them. In my view their breach of fiduciary duties, indifference and acting in conflict of interest with their position as director and employee of the Plaintiffs were not so wanton and in contumelious disregard of the Plaintiffs’ rights. In the instant case, there is also no evidence that the D1 and D3 were motivated by malevolence or spite. For the aforesaid reasons, the Plaintiffs’ claim for exemplary and aggravated damages is disallowed. [147] For reasons given, the claim against the 2nd Defendant and D1’s claim against the 2nd Third party are dismissed, there will be judgment for the Plaintiffs together with interest at the rate of 5% per annum on all S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 90 monetary sums awarded from the date of the Judgment i.e., 14.11.2023 until full and final settlement; costs of this action in the sum of RM300,000 to be paid by the 1st Defendant and/or 3rd Defendant and/or the 4th Defendant or his legal representative jointly and/or severally to the Plaintiffs; the 1st Defendant shall pay the 2nd Third Party the sum of RM85,000.00 as costs of this action; the Plaintiffs shall jointly and/or severally pay the 2nd Defendant the sum of RM85,000.00 as costs of this action; all costs subject to allocator. Dated: 20th November 2023 - sgd - ………………………. Liza Chan Sow Keng Judge High Court of Malaya at Kuala Lumpur COUNSEL: For the Plaintiffs : Abdul Rashid Ismail (together with him, Nadia Jaidi) Messrs Rashid Zulkifli For the 1st & 3rd Defendants : Alfred Lai Choong Wui (together with him, Toh Mei Swan) Messrs Alfred Lai & Partners CASES CITED: Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697; [2017] 5 CLJ 418 Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61 S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 91 Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1 Board of Trustees of the Sabah Foundation & Ors v Datuk Syed Kechik bin Syed Mohamed & Anor [2008] 5 MLJ 469 Avel Consultants Sdn Bhd & Anor v Mohamed Zain Yusof & Ors [1985] 2 MLJ 209 Pioneer Haven Sdn Bhd v Ho Hup Construction Co Bhd & Anor and other appeals [2012] 3 MLJ 616 Taz Logistics Sdn Bhd v Taz Metals Sdn Bhd & Ors [2019] 3 MLJ 510; [2019] 2 CLJ 48 Petra Perdana Berhad v. Tengku Dato’ Ibrahim Petra Tengku Indra Petra & Ors [2014] 11 MLJ 1 Tengku Dato’ Ibrahim Petra Tengku Indra Petra v. Petra Perdana Berhad & Another Case [2018] 2 MLJ 177 Tindok Besar Estates Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 Carmarthenshire County Council v Y [2017] 4 WLR 136 Royal Brunei Airlines Sdn Bhd v Tan Kok Ming Philip [1995] 2 AC 378; [1995] 3 All ER 97; [1995] 3 WLR 64 Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751 Ktl Sdn Bhd Ktl Sdn Bhd v Leong Oow Lai [2014] MLJU 1405 Ng Pak Cheong v Global Insurance Co Sdn Bhd [1995] 1 CLJ 223; [1995] 1 MLJ 60; [1994] 3 AMR 2663 CGU Insurance Berhad v Asean Security Paper Mills Sdn Bhd [2006] 3 MLJ 1; [2006] 2 CLJ 409 Barnes v Addy (1874) L.R 9 Ch App 244 (Ch App) Twinsectra v Yardley [2002] 2 AC 164 S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 92 CIMB Bank Bhd v Maybank Trustees Bhd & Ors [2014] 3 MLJ 169 CIMB Bank Bhd (formerly known as Bumiputera Commerce Bank Bhd) v Sebang Gemilang Sdn Bhd & Anor [2018] 3 MLJ 689 Malaysian International Trading Sdn Bhd v RHB Bank Bhd [2016] MLJU 13 Re City Equitable Fire Assurance Co Ltd [1924] All ER Rep 485 AWA Ltd v Daniels Trading As Deloitte Haskins & Sells And Others (1992) 7 ACSR 759 Sime Darby Bhd & Ors v Dato' Seri Ahmad Zubair @ Ahmad Zubir bin Hj Murshid & Ors (Tun Musa Hitam & Ors, third parties) [2012] 9 MLJ 464 Eastern Shopping Company Limited v Quah Beng Kee [1924] AC 177 BPI International Finance Ltd (formerly known as Ayala Finance (HK) Ltd) v Tengku Abdullah Ibni Sultan Abu Bakar [2009] 4 MLJ 821 Dato' Abul Hasan bin Mohamed Rashid v Multi-Code Electronics Industries & Anor [2012] 5 MLJ 176 Khaw Cheng Poon & Ors v Khaw Cheng Bok & Ors and another appeal [2005] 6 MLJ 540; [2005] 3 CLJ 753 Rookes v Barnard and others [1964] AC 1129 Big Junkyard Sdn Bhd & Anor v Chan Kah Wai [2023] 1 CLJ 564 STATUTE/LEGISLATION REFERRED: Section 213, 214, 221, 218, 581 of the Companies Act 2016 Section 17 of the Contracts Act 1950 Section 3 Evidence Act 1950 Order 16 rule 1 (b) and (c) Rules of the Court 2012 S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

WA-22NCC-327-07/2020

PLAINTIF 1. ) Kumpulan Powernet Berhad 2. ) Powernet Industries Sdn Bhd DEFENDAN 1. ) Woo Wai Mun 2. ) Moo Yong Kong Meng 3. ) Au Chan Chun 4. ) Tai Teck Soon 5. ) Powerfit Industries Sdn Bhd 6. ) Powernet Trading (M) Sdn BhdPIHAK TERKILAN1. ) RHB BANK BERHAD 2. ) ALLIANCE BANK MALAYSIA BERHAD 3. ) FONG WAI @ FOONG KAI MING 4. ) Baker Tilly Monteiro Heng PLT 5. ) LEONG SIEW MING 6. ) UNITED OVERSEAS BANK (MALAYSIA) BHD 7. ) Jabatan Peguam Negara

Companies and Corporations — Directors' Duties — Whether directors acted in breach of statutory duties, fiduciary duties and committed fraud — Whether directors failed to act in good faith and in the best interest of company — Whether such failure caused losses and damages to company — Dishonest assistance — Whether defendants liable — Whether Third Party liable — Companies Act 2016 s 213, 214, 221, 218 and 219

25/11/2023

YA Puan Liza Chan Sow Keng

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=5205720d-e875-4a70-b922-5a77594a6345&Inline=true

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) SUIT NO: WA-22NCC-327-07/2020 BETWEEN 1. KUMPULAN POWERNET BERHAD (COMPANY NO: 419227 -X) 2. POWERNET INDUSTRIES SDN BHD (COMPANY NO: 47163-W) … PLAINTIFFS AND 1. WOO WAI MUN (NRIC NO.: 740305-14-5627) 2. MOO YONG KONG MENG (NRIC NO.: 570330-08-5575) 3. AU CHAN CHUN (NRIC NO.: 851015-06-5073) 4. TAI KEN SIN [REPRESENTATIVE OF TAI TECK SOON (NRIC NO.: 540429-10-5911) DECEASED] 5. POWERFIT INDUSTRIES SDN BHD (COMPANY NO: 26690-V) 6. CEPSEL INDUSTRIES SDN BHD (Previously known as Powernet Trading (M) Sdn Bhd) (COMPANY NO: 331275 -T) … DEFENDANTS AND 1. FONG WAI @ FOONG AI MING (NRIC NO.: 400917-10-5107) 2. LEONG SIEW MING (NRIC NO.: 790629-14-5397) … THIRD PARTIES 25/11/2023 08:45:52 WA-22NCC-327-07/2020 Kand. 397 S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 BROAD GROUNDS INTRODUCTION [1] In this action, the Plaintiff claims: 1.1 As against the 1st Defendant (“D1”), 2nd Defendant (“D2”) and 3rd Defendant (“D3”), that they have committed fraud, breach of statutory duties, breach of contractual duties, breach of fiduciary duties and are liable for the loss and damage suffered by the Plaintiffs; and 1.2 as against D3 and 4th Defendant (“D4”), that they have dishonestly assisted D1 and D2 in committing the breach of statutory duties, breach of contractual duties and breach of trust and fiduciary duties and are liable for the loss and damage suffered by the Plaintiffs. [2] During a protracted trial lasting 24 non consecutive, using the Zoom video conferencing platform, the Plaintiff called 8 witnesses whilst D1, D2 and D3 testified in their own defence. D1 also subpoenaed 1 witness, Ahmad Aljafree Bin Mohd Razalli, D5 ‘s Director William Chan testified on behalf of the 5th Defendant (“D5”), the 2nd Third Party (“TP2”) testified. D4 passed away. His son Tai Ken Sin was appointed by Court order to represent the estate of D4. Both D4 and the 6th Defendant (“D6”) did not enter an appearance or appear at the trial. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 [3] The Third Parties were brought into this action by D1. On 15.9.2022, D1 has withdrawn his claim against the 1st Third Party who passed away in July 2022. [4] The 1st Plaintiff (“P1”) at all material times is an investment holding company listed on Bursa Malaysia since 22.3.2002. [5] The 2nd Plaintiff (“P2”) is P1’s wholly owned subsidiary carrying the business of manufacturing warp-knitted fabric. P2 was awarded with the Manufacturing Licence. The Manufacturing Licence is a compulsory requirement for P2 to be able to engage in manufacturing activities as stipulated under the Industrial Co-ordination Act 1975. With the Manufacturing Licence owned by P2, P2 was able to apply for a Cost Analysis (“CA”) and subsequently a Certificate of Origin (“CO”). At the material time, P2 had been awarded with the CO by MITI and it was able to enjoy the preferential duties for material exported to the other countries. [6] D5 and D6 were subsidiaries of P2 until their disposal on 17.12.2018. D5 was at all material times carrying business of manufacturing and selling slit binding, bone casing, clip hook and eyes fittings, hook, and eye tapes as well as hook and eye tape machine. D6 was at all material times carrying business of investment holding. [7] D1 was appointed as a director of P1 on 25.8.2015. He held the office of Managing Director of P1 from 1.6.2016 until his resignation on 5.7.2018. D1 was a director of P2 from 30.9.2015 until his resignation on 12.2.2019. He was a director of D5 and D6 from 30.9.2015 to 3.4.2019. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 [8] D2 was appointed as a director of P2 on 9.1.2017 until his resignation on 22.7.2019. D2 was a director of D5 and D6 from 9.1.2017 until 3.4.2019. [9] D3 was the Group Accountant of P1, P2, D5 and D6 from 1.10.2016 until his resignation on 15.2.2019. [10] D4 was a Director of D6 from 3.4.2019. He was also a former director of D5 from 3.4.2019 to 16.6.2020. D4 passed away on 20.6.2020. [11] D2 signed on behalf of P2, Two Share Sale Agreements both dated 17.12.2018 (“the impugned agreements”) to dispose the shares of P2 in D5 and D6 to D4 at a sum of RM10.00 each. [12] P2, D5 and D6’s respective directors’ circular resolution (“DCR”) all dated 15.1.2019 for the sale of P2’s shares in D5 and D6 were signed by D1 and D2. In P2’s DCR dated 15.1.2019, it was resolved that D6 is to be disposed to one Cheong Wai Loon who at the material time of the DCR was the Senior Manager in Sales & Marketing of P2. However, the disposal of D6 was eventually made to the late D4, Tai Teck Soon. [13] D5 obtained a Manufacturing Licence dated 13.2.2018 which has been in force since 16.10.2017 for the purpose of manufacturing products such as Knitted Fabrics, Jacket, Garment & Denim. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 Plaintiffs’ claim [14] In 2019, there was a change in the composition of the Board of Directors of P1. The new P1 Board has directed the new management to investigate and examine the Plaintiffs’ business dealings by the previous management. [15] The new management discovered that there were irregularities in the previous management in respect of, amongst others, the following: 15.1 illegal and fraudulent disposal of shares belonging to P2 in D5 and D6; 15.2 illegal use of Manufacturing Licence belonging to P2; and 15.3 illegal use of information and documents belonging to P2 to obtain Certificate of Origin (“CO”) for D5. [16] Arising from the discovery by the new management, on 28.7.2020 these proceedings were instituted by the Plaintiff against all the Defendants. [17] Further, on 26.11.2020, 27.11.2020 and 16.2.2021 the Plaintiffs have also filed discovery applications against RHB Bank Berhad (“RHB Bank”), United Overseas Bank (Malaysia) Bhd (“UOB Bank”), Alliance Bank Malaysia Berhad (“Alliance Bank”), Citibank Berhad (“Citibank”), Baker Tilly Monteiro Heng PLT (“Baker Tilly”) and Ministry of International Trade and Industry (“MITI”) (collectively referred to as “Discovery Applications”). S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 [18] From the Discovery Orders made pursuant to the Discovery Applications, the Plaintiffs had also discovered that amongst others, the following: 18.1 there were 84 transactions worth RM24,347,200.66 undertaken using P2’s Manufacturing Licence which was never paid and/or declared as dividend to P1 and/or P2; 18.2 the former auditors, Baker Tilly were provided with information by D1 and D3, amongst others, that D5 and D6 were no longer in operations before the disposal of D5 and D6; 18.3 parts of proceeds of the 84 transactions from the sale worth RM24,347,200.66 have been deposited into D5 and D6 bank accounts; 18.4 numerous cash cheques and other cheques were issued from D5’s bank account after the disposal of D5; 18.5 there were also various deposits and withdrawals made from D5 and D6 accounts before and after the disposal; 18.6 fraudulent issuance of various cheques from P1, P2, D5 and D6 to D1, D3 and other individuals and company related to D1 before and after the disposal of D5 and D6. [19] Hence, the Plaintiffs filed this action. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 [20] D1, D2 and D3 denied the allegations of fraud, breach of statutory duties, breach of contractual duties, breach of trust and fiduciary duties. D3 in addition denied the allegation of dishonest assistance. D4 did not defend the claim notwithstanding that his son Tai Ken Sin was appointed as his representative. ISSUES [21] In my view, from the issues agreed by the parties may be distilled into the following main issues: 21.1 Whether D1, D2 and D3, the Plaintiffs have jointly or severally breached their statutory, fiduciary and contractual duties, breach of trust, and committed fraud by wrongly and unlawfully disposing P2’s shares in D5 and D6 at a nominal value of RM10.00 for each company without the approval of the Board of Directors and shareholders of P1 as the ultimate holding company of D5 and D6 and if so, are liable for the loss and damage suffered by the Plaintiffs? 21.2 Whether D3 and D4 have dishonestly assisted D1 and D2 in committing the breach of statutory duties, breach of contractual duties and breach of trust and fiduciary and are liable for the loss and damage suffered by the Plaintiffs? 21.3 Whether D1, D2 and D3 are liable to account and pay for the 84 transactions worth USD6,077,683.64 (equivalent to RM24,347,200.66 as at 20.7.2020)? S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 Burden of proof [22] It is trite law that the Plaintiffs, have both the “burden of proof” to make out a prima facie case as well as the initial onus of proof to adduce evidence to prove their claim. The onus of proof would only shift to the Defendants if the Plaintiffs have made out a prima facie case. See for e.g., the Federal Court decision in Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697; [2017] 5 CLJ 418 where Jeffrey Tan FCJ held that: “[56] Thus a plaintiff has both the burden of proof as well as the initial onus of proof. In Britestone Pte Ltd v Smith & Associates Far East, Ltd [2007] 4 SLR 855, the Singapore Court of Appeal per VK Rajah JCA, delivering the judgment of the court, explained that at the start of the plaintiff’s case the burden of proof and the onus of proof coincide: … at the start of the plaintiff’s case, the legal burden of proving the existence of any relevant fact that the plaintiff must prove and the evidential burden of some (not inherently incredible) evidence of the existence of such fact coincide. Upon adduction of that evidence, the evidential burden shifts to the defendant, as the case may be, to adduce some evidence in rebuttal. If no evidence in rebuttal is adduced, the court may conclude from the evidence of the defendant. If, on the other hand, evidence in rebuttal is adduced, the evidential burden shifts back to the plaintiff. If, ultimately, the evidential burden comes to rest on the defendant, the legal burden of proof of the relevant fact would have been discharged by the plaintiff. The legal burden of proof — a permanent and enduring burden — does not shift. A party who has the legal burden of proof on any issue must discharge it throughout. Sometimes, the legal S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 burden is spoken of, inaccurately, as ‘shifting’; but what is truly meant is that another issue has been engaged, on which the opposite party hears the legal burden of proof. [57] The rule is that ‘the onus of proof of any particular fact lies on the party who alleges it, not on him who denies it; et incumbit probation qui decit, non qui negat, Actori incibit probation … The plaintiff is bound in the first instance, to show a prima facie case, and if he leaves it imperfect, the court will not assist him. Hence the maxim Potior est condition defendantis. A plaintiff cannot obviously advantage himself by the weakness of the defence. A plaintiff’s case must stand or fall upon the evidence adduced by him. When, however, the defendant, or either litigant party, instead of denying what is alleged against him, relies on some new matter which, if true, is an answer to it, the burden of proof changes sides; and he, in his turn, is bound to show a prima facie case at least and, if he leaves it imperfect, the court will not assist him. Reus excipendo fit actor’ (Woodroffe and Amir Ali, Vol 3 at pp 3190- 3191)..” [23] In the case of Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61, the Federal Court held: “Sections 101, 102, 103 and 106 of the Evidence Act 1950 deal with the burden of proof. Under s 101, it is provided that whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. Under s 102 the burden of proof lies on that person who would fail if no evidence at all were given on either side. Under s 103, the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Under s 106, when any fact is especially within the knowledge of any person the burden of proving that fact is upon him.” S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 [24] In Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1, the Federal Court has pronounced the position of the law on the standard of proof on fraud in civil cases is that on balance of probabilities at para 49 of the judgment: “… that at law there are only two standards of proof. namely, beyond reasonable doubt for criminal cases “while it is on the balance of probabilities for civil cases. As such even if fraud is the subject in a civil claim the standard of proof is on the balance of probabilities. There is no third standard. ….” Director’s duties and fiduciaries [25] The Federal Court in Board of Trustees of the Sabah Foundation & Ors v Datuk Syed Kechik bin Syed Mohamed & Anor [2008] 5 MLJ 469 at [30] has adopted Millet LJ ‘s definition of a fiduciary in Bristol and West Building Society v Mothew (t/a Stapley & Co) [1998] Ch 1 at p 11 as follows: A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of the fiduciary. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 The nature of the obligation determines the nature of the breach. The various obligations of a fiduciary merely reflect different aspects of his mere core duties of loyalty and fidelity. Breach of fiduciary obligation, therefore, connotes disloyalty or infidelity competence is not enough. A servant who loyally does his incompetent best for his master is not unfaithful and is not guilty of a breach of fiduciary duty.” [26] The law is clear that a director of a company is in fiduciary relationship with his company and as such he is precluded from acting in a manner which will bring his personal interest into conflict with that of his company - per Salleh Abas LP in Avel Consultants Sdn Bhd & Anor v Mohamed Zain Yusof & Ors [1985] 2 MLJ 209 SC. [27] In Ford's Principles of Corporations Law in Chapter 8 at para [8.050] at p 312, a director is subject to the fiduciary's duty of loyalty and the duty to avoid conflicts of interest. Walter Woon on Company Law states that: Firstly, a director must act in what he honestly considers to be the company’s interests and not in the interests of some other person or body. This is a director’s main and overriding duty at common law; Secondly, a director must employ the powers and assets that he is entrusted with for proper purposes and not for any collateral purpose; Thirdly, a director must not place himself in a position whereby his duty to the company and his personal interests may conflict. [28] Section 213(1) Companies Act 2016 (“CA 2016’) requires directors to exercise their powers in good faith and in the best interests of the company whilst s. 213 (2) provides directors must exercise reasonable care, skill and diligence: S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 “Section 213(1) CA 2016: (1) A director of a company shall at all times exercise his powers in accordance with this Act, for a proper purpose and in good faith in the best interest of the company. (2) A director of a company shall exercise reasonable care, skill and diligence with: (a) The knowledge, skill and experience which may reasonably be expected of a director having the same responsibilities; and (b) Any additional knowledge, skill and experience which the director in fact has.” [29] In Pioneer Haven Sdn Bhd v Ho Hup Construction Co Bhd & Anor and other appeals [2012] 3 MLJ 616 at p 654 the Court of Appeal held that ss 132(1) and 132(1A) [re- enacted as s 213 (1) and (2) CA 2016] do not alter the law in this area but enhance the common law duty of care and equitable fidicuary duties. The Court of Appeal said at para 233: … The prior provision of s 132(1) requires a director to act honestly. The current s 132(1) of the Act, requires a director to act in good faith in the best interests of the company. It is accepted that for all intents and purposes, the scope of the directors’ duties to act honestly under the old s 132(1) and the new s 132(1) are the same. Thus the old case law relating to the duty to act honestly continues to be relevant (see Cheam Tat Pang v Public Prosecutor [1996] 1 SLR 541). It is also recognised that the duty to act in the best interests of the company means different things, depending on the factual circumstances. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 [30] The statutory no conflict rule encapsulated in s. 221(1) CA 2016 (s. 131 of the CA 1965) mandates disclosure where a director is in any way whether directly or indirectly interested in a transaction with the company. It reads: “Section 221 CA 2016: (1) Subject to this section, every director of a company who is in any way, whether directly or indirectly, interested in a contract or proposed contract with the company shall, as soon as practicable after the relevant facts have come to the director's knowledge, declare the nature of his interest at a meeting of the board of directors.” [31] Section 221(9) CA 2016 makes plain that interest in the shares of a company include that of a spouse. [32] The learned author Dato’ Loh Siew Cheang in ‘Corporate Powers Accountability’ explained the no-conflict and underlying fiduciary principle as follows: “14-4 The no-conflict principle embodies two fundamental themes. First, directors cannot engage in 'self-dealings' or enter into transactions with a company in which they are directly or indirectly interested. Second, directors cannot make improper use of their office, company's property or information to make profits for themselves directly or indirectly. This is commonly known as the no-profit rule. There are many ways in which directors may misuse their office to benefit themselves-from usurpation of corporate opportunities, receiving bribes or commission and misapplying company's property. The rule prohibiting undisclosed self-dealings and secret profits is a positive rule. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 14-5 The underlying fiduciary principle against the abuse of office is well established. In Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o Pennusamy & Ors (on their behalf and for the 213 sub-purchasers of plots of land known as PN35553, Lot 9108, Mukim Hutan Melintang, Hilir Perak) and other appeals, the Federal Court said: [69] It is trite law that a person in a fiduciary position is not entitled to make a profit and he is not allowed to put himself in a position where his interest and duty are in conflict. In Boardman v Phipps [1966] 3 WLR 1009 Lord Hodson explained the rule as follows: Whether this aspect is properly to be regarded as part of the trust assets is, in my judgment, immaterial. The appellants obtained knowledge by reason of their fiduciary position and they cannot escape liability by saying that they were acting for themselves and not as agents of the trustees. Whether or not the trust or the beneficiaries in their stead could have taken advantage of the information is immaterial, as the authorities clearly show. No doubt it was but a remote possibility that Mr Boardman would ever be asked by the trustees to advice on the desirability of an application to the Court in order that the trustees might avail themselves of the information obtained. Nevertheless, even if the possibility of conflict is present between personal interest and the fiduciary position the rule of equity must be applied. This appears from the observations of Lord Cranworth LC in Aberdeen Railway Co v Blaikie 1 Macq 461, 471. In the later case of Bray v Ford [1896] AC 44 Lord Herschell ... said: It is an inflexible rule of a Court of Equity that a person in a fiduciary position, such as the respondent's is not, unless otherwise expressly provided, entitled to make a profit; he is not allowed to put himself in S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 a position where his interest and duty conflict. It does not appear to me that this rule is, as has been said, founded upon principles of morality. I regard it rather as based on the consideration that human nature being what it is, there is danger, in such circumstances, of the person holding a fiduciary position being swayed by interest rather than by duty, and thus prejudicing those whom he was bound to protect. It has, therefore, been deemed expedient to lay down this positive rule. But I am satisfied that it might be departed from in many cases, without any breach of morality, without any wrong being inflicted, and without any consciousness of wrong-doing. Indeed, it is obvious that it might sometimes be to the advantage of the beneficiaries that their trustee should act for them professionally rather than a stranger, even though the trustee were paid for his services. [Emphasis added] 14-6 In Furs Ltd v Tomkies, the High Court of Australia explained the rationale as follows: No director shall obtain for himself a profit by means of a transaction in which he is concerned on behalf of the company unless all the material facts are disclosed to the shareholders and by resolution in a general meeting approves of his doing so, or all the shareholders acquiesce. An undisclosed profit which a director so derives from the execution of his fiduciary duties belongs in equity to the company. It is no answer to the application of the rule that the profit is of a kind which the company could not itself have obtained, or that no loss is caused to the company by the gain of the director. It is a principle resting upon the impossibility of allowing the conflict of duty and interest which is involved in the pursuit of private advantage in the course of dealing in a fiduciary capacity with the affairs of the company. If, when it is his duty to safeguard and further the interests of the company, he uses the occasion as a means of profit to S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 himself, he raises an opposition between the duty he has undertaken and his own self interest, beyond which it is neither wise nor practicable for the law to look for a criterion of liability. The consequences of such a conflict are not discoverable. Both justice and policy are against their investigation. [Emphasis added]” [33] The common law no-profit rule is also statutorily embodied in s. 218(1) CA 2016 which stipulates: “Section 218 Prohibition against improper use of property, position, etc. (1) A director or officer of a company shall not, without the consent or ratification of a general meeting- (a) use the property of the company; (b) use any information acquired by virtue of his position as a director or officer of the company; (c) use his position as such director or officer; (d) use any opportunity of the company which he became aware of, in the performance of his functions as the director or officer of the company; or (e) engage in business which is in competition with the company, to gain directly or indirectly, a benefit for himself or any other person, or cause detriment to the company.” [34] Nallini Pathmanathan JCA (now FCJ) in Taz Logistics Sdn Bhd v Taz Metals Sdn Bhd & Ors [2019] 3 MLJ 510; [2019] 2 CLJ 48 explained the ‘no profit rule’ as follows: S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 “[112] The landmark case and starting point for the no profit rule must be Regal (Hastings) Ltd v. Gulliver and Others [1942] 1 All ER 378 more particularly the speech of Lord Russell where he explained the rule: ... The rule of equity which insists on those, who by use of a fiduciary position make a profit, being liable to account for that profit, in no way depends on fraud, or absence of bona fides; or upon such questions or considerations as whether the profit would or should otherwise have gone to the plaintiff or whether the profiteer was under a duty to obtain the source of the profit for the plaintiff, or whether he took a risk or acted as he did for the benefit of the plaintiff, or whether the plaintiff has in fact been damaged or benefited by his action. The liability arises from the mere fact of a profit having, in the stated circumstances, been made. The profiteer, however honest and well-intentioned, cannot escape the risk of being called upon to account.” (emphasis added) [35] As D2 in his submissions had referred to the business judgment rule in s. 214 CA 2016, it is best that this court reproduce it for ease of reference: “214. Business Judgment Rule (1) A Director who make a business judgment is deemed to meet the requirement of the duty under Section 213(2) and the equivalent duties of the common law and in equity if the director– (a) Makes the business decision for a proper purpose and in good faith; (b) Does not have a material personal interest in the subject matter of the business decision; (c) Is informed about the subject matter of the business judgment to the extent the director reasonably believes to be appropriate under the circumstances; S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 (d) Reasonably believes the business judgment is in the best interest of the company. (2) For the purposes of this section, “business judgment” means any decision whether or not to take action in respect of a matter relevant to the business of the company.” [36] In Petra Perdana Berhad v. Tengku Dato’ Ibrahim Petra Tengku Indra Petra & Ors [2014] 11 MLJ 1; Nallini Pathmanathan J (now FCJ) succinctly explained the duties of directors to exercise their powers in good faith and in the best interests of the company and the business judgment rule pursuant to ss132 (1), (1A) and (1B) of the Companies Act 1965, (re-enacted as ss 213(1), (2) and 214 CA 2016 respectively) which I produce in extenso as follows: “[212] In Pioneer Haven Sdn Bhd v. Ho Hup Construction Co Bhd & Anor and Other Appeals [2012] 4 MLRA 210; [2012] 3 MLJ 616 at 654; [2012] 5 CLJ 169 the Court of Appeal held that ss 132(1) and 132(1A) do not alter the law in this area but enhance the common law duty of care and equitable fiduciary duties. At para 233, p 654 this is what the Court said: "...The prior provision of s 132(1) requires a director to act honestly. The current s 132(1) of the Act, requires a director to act in good faith in the best interests of the company. It is accepted that for all intents and purposes, the scope of the directors' duties to act honestly under the old s 132(1) and the new s 132(1) are the same. Thus, the old case law relating to the duty to act honestly continues to be relevant (see Cheam Tat Pang v. Public Prosecutor [1996] 1 SLR 541). It is also recognised that the duty to act in the best interests of the company means different things, depending on the factual circumstances." S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 [213] And the test to be adopted in determining whether there was a breach of such statutory duty was defined as follows at para 238 at p 655: “[238] ... The test is nicely condensed in Ford's Principles of Corporations Law (para 8.060), that there will be a breach of duty if the act or decision is shown to be one which no reasonable board could consider to be within the interest of the company. [239] This test is adopted in Charterbridge Corpn Ltd v. Lloyds Bank Ltd [1970] Ch 62 at p 74, in that, to challenge a decision of the directors the test is whether: “....an intelligent and honest man in the position of the director of the company concerned, could in the whole of the existing circumstances have reasonably believed that the transactions were for the benefit of the company." [240] The above principle is often referred to as the 'Charterbridge Principle'. ………… [242] It is important to note, following high authority, such as Howard Smith Ltd v. Ampol Petroleum Ltd [1974] AC 821, that the court does not substitute its own decision with that of the directors, since the decision of the directors to enter into the JDA is a management decision.” [214] This encapsulates the core of the duties owed by director under statute. [215] Of relevance in the instant case is the statutory business judgment rule in s 132(1B) which states as follows: "A director who makes a business judgment is deemed to meet the requirements of the duty under subsection (1A) and the equivalent duties under the common law and in equity if the director: S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 (a) Makes the business judgment in good faith for a proper purpose; (b) Does not have a material personal interest in the subject matter of the business judgment; (c) Is informed about the subject matter of the business judgment to the extent the director reasonably believes to be appropriate under the circumstances; and (d) Reasonably believes that the business judgment is in the best interests of the company." [216] The statutory business judgment rule encapsulates the common law business judgment rule as set out in Howard Smith Ltd v. Ampol Ltd [1974] AC 821. In that case there was a challenge to the validity of an issue of shares by the directors of a company. The Court had to decide whether the said directors had been motivated by any purpose or personal gain or advantage or whether they had acted bona fide in the interests of the company. The judge found that the primary purpose of the allotment was to proportionately reduce the shareholdings of certain majority shareholders such that a take-over could be facilitated by another entity. It was found in those circumstances that the directors had improperly exercised their powers. The matter proceeded to the Privy Council where the Judicial Committee found, dismissing the appeal that, although the directors had acted honestly and had power to make the allotment, to alter a majority shareholding was to interfere with an element of the company's constitution which was separate from the directors' powers and accordingly it was unconstitutional for the directors to use their fiduciary powers over the shares in the company for the purpose of destroying an existing majority or creating a new majority. And since the directors' primary object for the allotment of shares was to alter the majority shareholding, the directors had improperly exercised their powers and the allotment was invalid. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 [217] In so holding the Judicial Committee commented inter alia, in relation to the business judgment rule as follows: ".... In order to assist him in deciding upon the alternative motivations contended for, the judge considered first at some length, the objective question whether Millers was in fact in need of capital. This approach was criticised before their Lordships: it was argued that what mattered was not the actual financial condition of Millers, but what the majority directors bona fide considered that condition to be. Their Lordships accept that such a matter as the raising of finance is one of management, within the responsibility of the directors: they accept that it would be wrong for the court to substitute its opinion for that of the management, or indeed to question the correctness of the management's decision on such a question, if bona fide arrived at. There is no appeal on merits from management decisions to courts of law: nor will courts of law assume to act as a kind of supervisory board over decisions within the powers of management honestly arrived at. But accepting all of this, when a dispute arises whether directors of a company made a particular decision for one purpose or another, or whether there being more than one purpose, one or other purpose was the substantial or primary purpose, the court, in their Lordships' opinion, is entitled to look at the situation objectively in order to estimate how critical or pressing or substantial or, per contra, insubstantial an alleged requirement might have been. If it finds that a particular requirement, though real, was not urgent, or critical, at the relevant time, it may have reason to doubt, or discount the assertions of individuals that they acted solely in order to deal with it, particularly when the action they took was unusual or even extreme." [218] …… S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 Fiduciary duties [219] A company director is recognised as having a fiduciary relationship with his company. As stated in Ford's Principles of Corporations Law in Chapter 8 at para [8.050] at p 312, a director is therefore subject to the fiduciary's duty of loyalty and the duty to avoid conflicts of interest. Case-law establishes under the scope of a director's fiduciary duty that he must exercise his powers bona fide and in the best interests of the company as a whole. This is similar to, and captured by the duties imposed by statute (see s 132(1) above). The essence of the fiduciary duty is a duty to act bona fide in the interests of the company and not for a collateral purpose (see In Re Smith and Fawcett, Limited [1942] 1 Ch 304 at pp 306 and 308 and Multi-Pak Singapore Pte Ltd (in receivership v. Intraco Ltd & Ors [1994] 2 SLR 282 at p 287). Although the directors are vested with powers which carry implicitly some degree of discretion, such powers must be exercised bona fide, meaning for the purpose for which they were conferred and not arbitrarily or at the will of the directors, but in the interests of the company. (See Greenhalgh v. Ardene Cinemas Ltd [1951] Ch 287 at 291; Blackwell v. Moray and Anor (1991) 3 ACSR 255). Did Tengku Ibrahim, Lawrence Wong and Tiong who were directors of the Plaintiff at the material time exercise their powers for a proper purpose or for an improper purpose when they decided to undertake the Second and Third Divestments? [220] If the impugned directors exercised their powers for a proper purpose, it then follows that they acted bona fide in the interest of the company. If, however they exercised their powers for an improper purpose as is alleged by the Plaintiff, then they have failed to act in the best interests of the company and would be in breach of their statutory, fiduciary and common law duties as directors. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 [221] In order to answer this question in relation to the two divestments this Court needs to ascertain the substantial object or purpose for which the board decided to divest of the PEB shares. (see Howard Smith Ltd v. Ampol Ltd (above). [222] In ascertaining the substantial object or purpose for which each of these three directors decided to divest of the PEB shares, it is necessary to ascertain their individual states of mind at the time when the decision to undertake the Divestments was made. In ascertaining the state of mind of the directors, regard may be had to the circumstances surrounding the decision. In Hindle v. John Cotton Ltd (1919) 56 Sc LR 625 at 630-1, Viscount Findlay stated as follows: "Where the question is one of absence of powers, the state of mind of those who acted and motive on which they acted are all important, and you may go into the question of what their intention was, collecting from the surrounding circumstances all the materials which genuinely throw light upon that question of the state of mind of the directors so as to show whether they were honestly acting in the discharge of their powers in the interests of the company or were acting from some bye-motive, possibly of personal advantage or for any other reason."(emphasis added) [37] Her Ladyship Nallini Pathmanathan J (now FCJ) further explained: “[364] Business judgment has been defined to mean ‘any decision on whether or not to take action in respect of a matter relevant to the business of the company’ (see s 132 of the Companies Act). In Australian Securities and Investments Commission v Rich (2009) 75 ACSR 1 Austin J accepted a wide interpretation of the scope of ‘business judgment’. The words ‘in respect of, ‘matter’ and ‘relevant’ were accorded considerable breadth. As such it follows that an issue such as a shortage of cash flow and the disposal of assets falls squarely within this definition. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 [365] The effect of the statutory business judgment rule in the current context is this: If the impugned directors can show that they made the decisions to affect the second and third divestments, as a business judgment within the scope of s 132(1B) of the Companies Act 1965, then they are deemed to have met their obligations and duties as directors under statute, common law and equity. In other words, the requirements of s 132(1A) of due care and diligence in the exercise of their duties would have been met. [366] How then is this to be ascertained? The courts do not undertake the exercise of assessing the merits of a commercial or business judgment (see Smith (Howard) Ltd v Ampol Petroleum Ltd [1974] AC 821). [367] In the Australian case of Australian Securities and Investments Commission v. Rich [2009] ACSR 1('the Rich case') the enquiry related to the managing director Rich and the finance director, Silberman's failure to advise the board of directors that the company was insolvent. It should be highlighted that the statutory Australian provision equivalent to s 132(1B) is similar to our provision save for the use of the words 'rationally believes' rather than 'reasonably believes' in our section. While it has been argued by the American Law Institute that 'rationally believe' is considerably wider than 'reasonably believe' I am unable to subscribe entirely to that construction. Rational by definition alludes to a decision based on reason or logic. Reasonable as a word has much the same effect, namely a decision premised on logic or sense. The distinction does not therefore appear to be as wide as is suggested. [368] In the Rich case, Austin J. set out a compendium of requirements that need to be satisfied in or order to satisfy this requirement of 'rational' belief. As 'rational' is not entirely dissimilar to 'reasonable' it appears that the criteria set out in Rich's case are applicable under s 132(1B). Austin J. held there that reasonableness should be assessed by reference to: S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 (a) the importance of the business judgment that is to be made; (b) the time available for obtaining information; (c) the costs related to obtaining information; (d) the director's confidence in exploring the matter; (e) the state of the company's business at that time and the nature of the competing demands on the board's attention; and (f) whether or not the information is available to the director. [369] The Supreme Court of Canada in Peoples Department Stores Inc (Trustee of) v. Wise [2004] 3 SCJ No 64 held as follows at para 64: "Business decisions must sometimes be made with high stakes and under considerable time pressure in circumstances in which detailed information is not available. It might be tempting for some to see unsuccessful business decisions as unreasonable or imprudent in light of information that becomes available ex post facto. Because of this risk of hindsight bias, Canadian courts have developed a rule of defence to business decisions called the "business judgment rule". [370] Reference was made to Maple Leaf Foods Inc v. Schenieder Corp (1998) 42 OR (3d) 177: "The law as it has evolved in Ontario and Delaware has the common requirements that the court must be satisfied that the directors have acted reasonably and fairly. The court looks to see that the directors made a reasonable decision not a perfect decision. Provided that the decision taken is within a range of reasonableness, the court ought not to substitute its opinion for that of the board even though subsequent events may have cast doubt on the board's determination. As long as the directors have selected one of several reasonable alternatives, deference is accorded to the board's decision. This formulation of deference to the decision of the Board is known as the "Business judgment rule". The fact that alternative S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 transactions were rejected by the directors is irrelevant unless it can be shown that a particular alternative was definitely available and clearly more beneficial to the company than the chosen transaction." (Emphasis added) [38] The Federal Court in Tengku Dato’ Ibrahim Petra Tengku Indra Petra v. Petra Perdana Berhad & Another Case [2018] 2 MLJ 177 affirmed the High Court decision of Nallini Pathmanathan J (now FCJ), and in its judgment delivered by Azahar Mohamed FCJ (later CJM) elucidated and held that the true test for breach of duty as a director to act in good faith and in the ‘best interest of the company' is a combination of both the subjective and objective tests: “[165] What then is the true test for breach of duty as a director to act in good faith and in the ‘best interest of the company'? The question is whether it is a subjective or objective test to judge whether directors acted in the best interest of the company. It is to this we now turn. [166] In our judgment, the correct test combines both subjective and objective tests. The test is subjective in the sense that the breach of the duty is determined on an assessment of the state of mind of the director; the issue is whether the director (not the court) considers that the exercise of discretion is in the best interest of the company. In this regard, in Corporate Law by Hans Tjio, Pearlie Koh and Lee Pey Woan at p 361, the learned authors said that the director’s conduct is tested by reference to an essentially subjective barometer. The classic formulation of the subjective element in the test is found, as we have discussed earlier at para 157, in Re Smith & Fawcett, Limited in which Lord Greene MR said that ‘directors must exercise their discretion bona fide in what they consider — not what a court may consider — is in the interest of the company’. The duty is to act in what the director believes, not what the court believes, to be the best interest of the company. The subjective nature of the S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 test can be seen in Regentcrest Plc (in liq) v Cohen [2001] BCC 494 where Jonathan Parker J said: … the question whether the director honestly believed that his act or omission was in the interests of the company. The issue is as to the director’s state of mind. No doubt, where it is clear that the act or omission under challenge resulted in substantial detriment to the company, the director will have a harder task persuading the court that he honestly believed it to be in the company’s interest; but that does not detract from the subjective nature of the test. [167] The test is objective in the sense that the director’s assessment of the company’s best interest is subject to an objective review or examination by the courts. In an article entitled Directors’ Duty to Act in the Interests of the Company: Subjective or Objective? [2015] JBL Issue 2, the writers said that courts have introduced objective elements into the duty to act in good faith and in the best interest of the company to address the problem identified by Browen LJ in Hutton v West Cork Railway Company (1883) 23 Ch D 654 at p 671 where the learned judge said: Bona fides cannot be the sole test, otherwise you might have a lunatic conducting the affairs of the company, and paying away its money with both hands in a manner perfectly bona fide yet perfectly irrational. The test must be what is reasonably incidental to, and within the reasonable scope of carrying on, the business of the company. [168] The Singapore Court of Appeal in Goh Chan Peng and Others v Beyonics Technology Ltd and another and another appeal [2017] 2 SLR 592; [2017] SGCA 40 explained the preferred approach which combines both subjective and objective tests as follows: S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 Indeed, there are both subjective and objective element in the test. The subjective element lies in the court’s consideration as to whether a director had exercised his discretion bona fide in what he considered (and not what the court considers) is in the interests of the company: Re Smith & Fawcett Ltd [1942] Ch 304 at 306, as accepted by this court in Cheong Kim Hock v Lin Securities (Pte) (in liquidation) [1992] 1 SLR (R) 497 at 26 and in Ho Kang Peng v Scintronix Corp Ltd (formerly known as TTL Holdings Ltd) [2014] 3 SLR 329 (‘Ho Kang Peng’) at 37. Thus, a court will be slow to interfere with commercial decisions made honestly but which, on hindsight, were financially detrimental to the company. The objective element in the test relates to the court’s supervision over directors who claim to have been genuinely acting to promote the company’s interest even though, objectively, the transactions were not in the company’s interests. The subjective belief of the directors cannot determine the issue: the court has to assess whether an intelligent and honest man in the position of a director of the company concerned could, in the whole of the existing circumstances, have reasonably believed that the transactions were for the benefit of the company. This is the test set out in Charterbridge Corporation Ltd v Lloyds Bank Ltd [1970] 1 Ch 62 (at 74) and it has been applied here since adopted by this court in Intraco Ltd v Multi-Pak Singapore Pte Ltd [1994] 3 SLR (R) 1064 (at [28]). [39] The Federal Court at [177] and [178] reaffirmed the Charterbridge Principle exposited by Zainun Ali JCA (later FCJ) in Pioneer Haven Sdn Bhd v Ho Hup Construction Co Bhd & Anor and other appeals in that, to challenge a decision of the directors, the test is whether: an intelligent and honest man in the position of the director of the company concerned, could in the whole of the existing circumstances have reasonably believed that the transactions were for the benefit of the company. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 Analysis and findings Whether D1, D2 and D3 breached their duties and committed fraud [40] Guided by the instructive principles set out in the preceding paragraphs, I now deal with this issue. [41] D1, D2 and D3’s breaches of statutory and fiduciary duties breach of contractual and trust duties and committed fraud was alleged to arise from: 41.1 the disposal of P2’s shares in D5 and D6 at a nominal value of only RM10.00 for each company to D4 through the impugned agreements without the Plaintiffs’ prior approval; 41.2 the unlawful/wrongful use of P2’s Manufacturing Licence dated 16.10.2017 to export materials worth RM24,347,200.66 to Turkey and Pakistan from 2017 – 2019 (“the 84 Impugned Transactions”) without declaring the revenue or sales proceeds to the Plaintiffs and neither any dividend has been declared to the Plaintiffs; and 41.3 the unlawful use of documents belonging to P2 to obtain the Certificate of origin (“CO”) from the Ministry of International Trade and Industry (MITI) to enjoy preferential duties for exported items, despite the 5th Defendant having ceased to be the 2nd Plaintiffs’ subsidiary. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 Disposal of P2’s shares in D5 and D6 at a nominal value [42] The Plaintiffs posited that: 42.1 At the material time of the disposal, D1 was a Director of P2, D5 and D6 whilst D3 was the Group Accountant and the person in charge of the accounts and finance of the Plaintiffs, D5 and D6 respectively. D2 was deceived by D1 and D3 to be part of the disposals but given that D2 is also a director of P2, D5 and D6, he owed fiduciary duties to the Plaintiffs, D5 and D6. 42.2 D1 and D3 were the movers of the alleged wrongful Disposal Of Shares and that there is no credible evidence that D4 is the beneficial owner of D5 and D6: 42.2.1 D1 continued to have control over P2, D5 and D6 even though D1 is no longer the shareholder and managing director of P1 as admitted by D3 during cross examination; D2 also testified that P2, D5 and D6 were controlled together by D1 and D3. 42.2.2 D1 continued to be the director of D5 and D6 until 3.4.2019 even after the disposal of D5 and D6 on 17.12.2018; 42.2.3 D3 was the group accountant of the Plaintiffs from 1.10.2016 to 15.2.2019; S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 42.2.4 That D1 had control of D5 and D6 was also made evident by the fact that the former staff of the Plaintiffs joined D1 in D5 and D6 namely D3, Willam Chan Siew Kei (“William Chan”), Chang Shaw Horng, Cheong Wai Loon and Jainuri Bin Sarip. William Chan was interviewed by D1 whilst D3 was interviewed by D1’s wife. They were both indebted to D1. D1 was also the superior of all these staff who followed D1 in joining D5 and D6 after the Disposal Of Shares and all of them have received monies from D5 and D6; 42.2.5 D4 is not listed as the signatory of any of the bank accounts of D5 and D6; 42.2.6 There were no cheques issued from D5 and D6 to D4. Only a sum of RM12,000.00 was paid to D4’s son, Tai Ken Sin; and 42.2.7 William Chan is a willful nominee of D1 as can be inferred by William Chan’s indebtedness to D1 when he admitted that he has begged D1 for a job at P2 during his job interview in November 2017. [43] D1 admitted under cross-examination that in June 2017, D1 and D3 had informed Baker Tilly that D5 and D6 have ceased operations since 2017 through the Plaintiffs’ Group and Company Summary Review Memorandum S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 for financial year ended 30.6.2017 “the company had ceased operation since January 2017. The company planned to strike off the company in next financial year 2018, expected.” That the companies will be struck out was also captured in Baker Tilly’s Report on D5’s Related Party Transactions dated 24.7.2017 and Baker Tilly’s Report on D6’s Analytical Procedures dated 12.7.2018. [44] In facilitating the sale of both companies at a nominal sum of RM10.00: 44.1 the evidence revealed D1, D2 and D3 have written off cash advance in the sum of RM4,780,942.93 and RM1,208,183.70 respectively from P2 to D5 and D6 during financial year ended 30.6.2017 through P2’s directors’ circular resolution dated 30.6.2017 to ensure that there is no debts due to P2 before the disposal of D5 and D6 to D4; D1 admitted during cross-examination that by writing-off the debts, P2 will not be able to recover these debts from D5 and D6; D1 was not able to show proof that this writing off such big sums was disclosed to P1 and instead blamed the company secretary for advising that disclosure was not necessary; prior P2 writing off the cash advances to D5 and D6, an impairment of RM1,795,419.00 from P1 to P2 was made while D1 was one of the directors of P2. The effect of the impairment will show no debt is owed by P2 to P1 as part of the justification for P2 to write off cash advances from P2 to D5 and D6 that had been undertaken earlier on 30.6.2017; S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 44.2 D1, D2 and D3 also transferred all fixed assets belonging to D5 and D6 to P2 in order to reduce the value of D5 and D6 before the disposal. [45] In my respectful view, D1and D3’s explanation that the debts were written off due to the fact that D5 and D6 were unable to repay the debts owed to P2 at the material time and that the transfer of the fixed assets of D5 and D6 to P2 was executed for P2’s benefit is unacceptable as the evidence show which I will come to in a while that D5 and D6 were actively carrying on business. [46] The following events also show D1 and D3 engineered the disposal of D5 and D6: 46.1 D3’s brought the D5 Agreement and D6 Agreement for D2 to sign and secured D2’s signature after assuring D2 that everything will be under D1’s responsibility; 46.2 even before P2, D5 and D6’s board of directors have approved the sale, it was D1 and not D4 who procured the assessment of stamp duty for the D5 Agreement and D6 Agreement on 17.12.2018 which is telling of D1’s personal stake in the matter particularly when the agreements provide for stamp duties on the transfer to be paid by D4; 46.3 D1 and D2 only a month later signed the Directors’ Circular Resolution dated 15.1.2019 of P2, D5 and D6 for the sale of P2’s shares in D5 and D6 to the late D4; S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 46.4 Even without the respective board resolutions approving the disposal of D5 and D6 shares, on 10.1.2019, the company secretaries for D5 and D6 were suddenly replaced by D1. This sudden change of company secretaries was not made known to P1's Board. D1’s testimony that there was oral approval from the late Mr. Fong Wai @ Foong Kai Ming, a director of P1 at the material time to change the company secretary and to dispose D5 and D6 not only was not pleaded, it was also not in his witness statement. I find it a convenient afterthought particularly when P1 is a listed company on Bursa Malaysia and important matters like disposal of subsidiaries have to be announced within strict timelines and Fong Wai @ Foong Kai Ming is dead, a case of 'dead men tell no tales’. Such a tale is also contradicted by their submission that the change of company secretary of D5 and D6 on 10.1.2019 was made following D4’s instructions. D4 is also dead and again can tell no tale and besides, was also not pleaded and ought to be ignored. Added to that, I find such a narrative unbelievable as D4 simply could not have asked for a change of secretary when the sale of shares were not completed on 10.1.2019 and the respective Board of Directors of P2, D5 and D6 have not approved the sale yet; 46.5 On 15.1.2019 at 4.55pm, the newly appointed company secretary of D5 and D6, Ms. Candise of Bizmarc sent an email to the company’s secretary of P1, Ms. Asmaliza of S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 HMC attaching the stamp certificate in respect of the sale of P2’s shares in D5 and D6. Ms. Asmaliza then on the same day of 15.1.2019 at 5.16pm forwarded the draft announcements in relation to the disposals of D5 and D6 to Mr. Foong Kai ming (the 1st Third Party). On 16.1.2019 the next day, Ms. Asmaliza then emailed the draft announcements in relation to the disposals of D5 and D6 to the other directors in the KPB Board seeking for KPB Board’s approval to release the draft announcements in relation to the disposals of D5 and D6 and not to ask for approval regarding the disposal itself and this was when the Board of Directors of P1 were first made aware of the disposal of P2’s shares in D5 and D6 . Kok Pauline (PW- 4), a member of the Board of directors of P1 asserted in her testimony that the fact that the information and the stamp certificate in respect of the sale of P2’s shares in D5 and D6 were sent by Ms. Candise of Bizmarc to Ms. Asmaliza of HMC at 4.55pm on 15.1.2019 already demonstrated bad faith on the part of D1, D2 and D3; 46.6 No documentary evidence has been adduced by D1, D2 and D3 to show that P1’s Board of Directors was aware of the disposals of D5 and D6 prior to the email of Ms. Asmaliza on 16.1.2019; 46.7 at the 79th Board of Directors’ Meeting of P1 held on 16.1.2019 and Emergency Board of Directors’ Meeting of P1 S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 36 held on 15.4.2019 which were both attended by Mr. Fong, there was no mention of the so-called “oral approval” which D1 claimed has been given by Mr. Fong; 46.8 P1’s board instead took steps to lodge a complaint to the SSM and resolved that a police report would be lodged by the Board of Directors of P1 in respect of the unauthorised disposal of P2’s shares in D5 and D6; a police report was lodged on 25.4.2019 by a Board member, Dato’ Arivalagan Arujunan, regarding the unauthorised disposal of D5 and D6 and stating in the said police report that D1 had in bad faith executed the disposal of P2’s shares in D5 and D6 without prior approval of the Board of Directors of P1 and after the police report was lodged, the Board of Directors then authorised the company secretary to announce the non- recognition of the disposals of D5 and D6 to Bursa Malaysia due to the disposal of D5 and D6 were wrong and undertaken without prior approval of the Board of Directors of P1. [47] I find D1 and D3’s argument that there is also no necessity to conduct a valuation in regard of the value of D5 and D6 because D5 and D6 do not own any real estate and the Percentage Ratios for the disposal of D5 and D6 are less than 25% to be untenable, and I agree with Plaintiffs’ counsel that the analysis of the Percentage Ratios prepared by D3 show that it could not justify the disposal of D5 and D6 at RM10.00 as no proper valuation was undertaken and in any event the Percentage Ratios prepared by D3 were S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 37 wrong simply because D1 and D3 did not include all the tangible and intangible assets of D5 and D6 in the calculation. The intangible asset of D5 and D6 that have not been taken into account by D1 and D3 in disposing D5 and D6 are the Manufacturing Licence of D5 and unutilised tax losses of D5 and D6. In this regard, D1 agreed during cross-examination (i) that at the time of disposal D5 and D6 had unutilised tax losses of RM2,738,933 and RM822,230 respectively, (ii) D5 had Manufacturing Licence which enable D5 to trade under free trade agreement and that the total income and equity of D5 and D6 is more than RM10.00;(iii) as at 30.6.2018 D5 has total assets of RM101,979, total income of RM62,086 and total equity of RM57,826 which is all more than the value of RM10.00 of which D5 was sold for; (iv) in respect of D6, D1 agreed that as at 30.6.2018 D6 has a net profit of RM13,448, assets of RM51,569, total equity and liabilities about RM51,569, revenue of RM90,000 and gross profit of RM14,000 and cash which is more than the value of RM10.00 of which D6 was sold for. [48] That is not all. The value of the sales proceed collected by D5 for its exports of material to overseas after its disposal indicate plainly that there are still active business and value to D5. After the disposals of D5 and D6 on 17.12.2018 and with the use of the Manufacturing Licence of D5, monies were still deposited into the bank account of D5 from 17.12.2018 to 14.1.2021 a total deposit of RM11,777,543.32 is recorded in D5’s RHB Bank Account. [49] Kok Pauline (PW-4) testified that had the disposal of the D5 and D6 been tabled-up for discussion at a Board of Directors’ meetings of P1, P1 would not have approved it on the basis that the disposal of D5 and D6 for a S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 38 nominal consideration of only RM10.00 for each company is not the fair value of the companies. [50] D5’s contention that disposal of P2’s shares in D5 were legally passed on the basis of the existence of D5’s Director’s Circular Resolution as well as P2’s Director’s Circular Resolution is misconceived and cannot stand for the simple reason that Board of Directors of P1 as the ultimate holding company of P2, D5 and D6 did not authorize nor had knowledge of disposal P2’s shares in D5 and D6. In any case, fraud unravels all. Procurement of manufacturing licence for D5 [51] Khalilah Hanum (PW-8) from MITI testified that the Manufacturing Licence for D5 was granted based on P2’s factory’s address of P2 at Bentong, Pahang and the application was submitted on 16.10.2017. [52] Although D1 and D3 had informed Baker Tilly that for financial year ended 30.6.2017, D5 has ceased operations and was going to be struck off in the next financial year, D1 and D3 however proceeded to procure a Manufacturing Licence for D5 from 16.10.2017 onwards which was more than a year before disposal of D5 and D6 on 17.12.2018. That it does not make sense to apply for a Manufacturing Licence for D5 if the D5 were to be struck off was admitted by D3 under cross-examination: “AR: Do you agree if the company was to be struck off, and you told Baker Tilly in October 2017, it doesn’t make sense for D5 to apply for this license, correct? DW5: No. “ S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 39 [53] I find it inherently probable that in obtaining the Manufacturing Licence for D5, D1 and D3 would be able to benefit from the use of the Manufacturing Licence after disposal of D5 and D6 were undertaken and this same Manufacturing Licence was then used by D1 and D3 and the former employees of P1 after the disposal of D5 and D6 on 17.12.2018 to generate income for D5 and D6. With the licence, D5 can engage in manufacturing activities. D5 then can apply for a Cost Analysis (“CA”) and subsequently a Certificate of Origin (“CO”) from MITI enjoy preferential duties based on the free trade agreement between Malaysia and overseas countries like Turkey, India and Pakistan. The inference is irresistible that there was no real intention to strike off D5 and D6 as was told to Baker Tilly but that instead D5 after disposal, will be used to export knitted fabrics to overseas, and the proceeds collected therefrom will be for the personal benefit and interest of D1, D3, D4 and the close associates of D1. This is borne out by the evidence showing D5 was actively applying for CA and CO to MITI using D5’s Manufacturing Licence before the disposal and these applications to MITI continued even after the disposal of D5 and D6. D5 had applied for CA and CO to MITI since 2.4.2018 up until 7.12.2018 using D5’s Manufacturing Licence; there were 21 approvals for CA applied by D5 from 2.4.2018 to 13.11.2018; there were 3 CO transactions under D5 on 25.6.2018 and 27.6.2018 for the export of Knitted Fabrics to Sozteks Kumas Dis. Tic. Ltd in Turkey in the sum of USD88,508.16, USD84,576.61 and USD7,461.16 respectively. I do not believe D1 that these 3 CO transactions “were parked under the name of D5 to sustain the livelihood of D5 at the material time” for between 13.11.2018 to 7.12.2018, there were also 17 other approvals granted by MITI for D5’s application for CA. These applications for CA and S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 40 CO using D5’s Manufacturing Licence prior to the disposal made plain that D5 was actively running business activities and had not ceased operations. [54] D1 himself admitted plainly in cross-examination that D5 carried on business activities of exporting after D5’s disposal: “AR : Right. So clearly, Mr Woo, that even after the disposal of D5, there were still, there were economic activities, business activities for the exporting, yes? DW2 : Yes. [55] Even after the disposal of D5, the same Manufacturing Licence was used to export knitted fabrics overseas is borne out by numerous CO transactions undertaken by D5 from 2019, 2020 up until 2021 as follows: 55.1 38 CO transactions from 13.2.2019 to 26.6.2019 @ CBD-14 (Ecl. 235) @ pgs. 5 – 399]; 55.2 37 CO transactions from 26.6.2019 to 16.7.2019 @ CBD-15 (Ecl. 236) @ pgs. 5 – 361]; 55.3 43 CO transactions from 16.7.2019 to 2.8.2019 @ CBD-16 (Ecl. 237) @ pgs. 5 – 404]; 55.4 44 CO transactions from 2.8.2019 to 3.9.2019 @ CBD-17 (Ecl. 238) @ pgs. 5 – 401]; 55.5 44 CO transactions from 3.9.2019 to 27.9.2019 @ CBD-18 (Ecl. 239) @ pgs. 5 – 387]; S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 41 55.6 50 CO transactions from 1.10.2019 to 19.12.2019 @ CBD- 19 (Ecl. 240) @ pgs. 5 – 444]; 55.7 44 CO transactions from 6.1.2020 to 17.12.2020 @ CBD-20 (Ecl. 241) @ pgs. 5 – 330]; and 55.8 6 CO transactions from 15.2.2021 to 8.9.2021 @ CBD-20 (Ecl. 241) @ pgs. 331 – 374]. [56] In my considered view, these active business transactions contained in contemporaneous documents belies D3’s contention that the Manufacturing Licence obtained for D5 is to clear out government documents or the ‘hanging’ application in MITI system for the purpose of striking off D5. [57] The active business activities of D5 also implodes D1 and D3’s ipse dixit assertion that D5 has ceased business. [58] In my respectful view, the fact that D5’s 2018 Audited Accounts shows that D5 has suffered accumulated losses of RM4,504,260.00 during financial year 2017 and RM4,442,174.00 during financial year 2018 and that D6 has suffered accumulated losses of RM27,317.00 during the financial year 2017 and RM13,869.00 during the financial year 2018 as recorded in D6’s 2018 Audited Accounts do not necessarily mean they have ceased operations. In my view, business is cyclical, there will be good and lean times. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 42 [59] Syukri Sulaiman (PW-7) in his Supplemental Witness statement Q&A 14 WS-PW7B testified that the total value of invoices that has been issued by D5 to the overseas buyers after the Disposal Of Shares is in the sum of RM99,698,551.53 represented as follows: DESCRIPTION USD MYR Revenue from CO during financial year ended 30.6.2019 3,358,998.90 13,548,575.92 Revenue from CO during financial year ended 30.6.2020 18,542,856.51 76,309,961.88 Revenue from CO during financial year ended 30.6.2021 2,178,014.92 8,935,952.94 Revenue from CO during financial year ended 30.6.2022 63,350.00 264,296.20 GRAND TOTAL 24,143,220.33 99,058,784.94 [60] D1 and D3’s evidence that D5 and D6 had ceased operations simply do not accord with contemporaneous documentary evidence before the court and such evidence ought to be viewed for its veracity rather than plausibility. In this regard, I refer to Tindok Besar Estates Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 where Chang Min Tat FJ said at p 234: “…For myself, I rely in the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from them than to believe their 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 perception of the S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 43 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.” (own emphasis) [61] I do not accept D1 and D3’s postulation that the 306 CO transactions conducted by D5 after the Disposal Of Shares related to businesses closed by D4, neither do I accept their argument that D5 was under the control of D4 after the disposal of D5 and that D4 is the only person who had the authority to make decisions for D5 and to execute documents for the obtainment of CAs and COs for D5 after the disposal of D5. This is because: 61.1 D1 continued to be the director of D5 and D6 after the disposal before he resigned on 12.2.2019. D3 resigned as Group Accountant of P1 and P2 on 15.2.2019; D1’s argument that D5 and D6 were under the full control of D4 after the Disposal Of Sharesa and that he and D2 were merely helping D4 with some administrative works during the transition period and that they have submitted their resignation letters except that D4 failed to do housekeeping ring hollow to me; 61.2 D4 as purported new owner of D5 and D6 is not even a signatory of D5 and D6’s bank accounts; 61.3 D1 and D3 continued to be the authorised signatories of D5’s RHB Account after the disposal of D5 on 17.12.2018: S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 44 61.3.1 Pursuant to D5’s Director Resolution (Change of Bank Signatories) dated 16.7.2019, D1 and D3 together with Chang Shaw Horng and Cheong Wai Loon continued to become the authorised signatories of D5’s RHB Account effective 16.7.2019; and 61.3.2 Pursuant to D5’s Director Resolution (Change of Bank Signatories) dated 19.2.2020, D3 together with the current director of D5, William Chan Siew Kei (DW-4) are the authorised signatories of D5’s RHB Account together since 19.2.2020 61.4 D3 remains as the person in charge of all D5’s submissions of D5’s CO to MITI. PW8 from MITI confirmed by reference to the documents that D3 is the person in charge of submissions and MITI does do not have any records that D3, Au Chan Chun is no longer the authorised person in respect of submissions of CO by D5; 61.5 D3 did not care to update MITI’s records that he was not the person in charge of all D5’s CO submissions to MITI; 61.6 D1 admitted under cross-examination that the MITI documents for the 84 transactions were submitted by D3; S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 45 61.7 William Chan testified during cross-examination that after D5 was disposed off to D4, D3 was still responsible for the accounts of D5 and D6 after December 2018. [62] I find D1 and D3’s testimony that the reason D4 appointed “his staff” i.e. Chang Shaw Horng and Cheong Wai Loon, as signatories for the bank accounts of D5 and D6, instead of himself, because D4 wanted to concentrate on sourcing business overseas to be a convenient afterthought for firstly, it overlooks that both of them D1 and D3 were cheque signatories of D5; second, D4 is dead, a case of 'dead men tell no tales'; at any rate, it does not beggar belief that a prudent business man (if D4 is assumed as such) will appoint new staff to be cheque signatories as those who control the bank accounts control the company based on D1’s own evidence: “AR : And if you control the bank account, then effectively, 1 you control the company, you agree? DW2 : Yes. “ [63] As can be seen, the narrative relied on by D1 and D3 were blown to smithereens when tested under cross-examination. The importance of oral evidence through cross-examination is underscored by the following authorities: 63.1 Carmarthenshire County Council v Y [2017] 4 WLR 136 at [7] to [9]: 7 ….Oral evidence-in-chief now requires the permission of the judge be given. FPR r 22.11 provides the right to cross-examine a witness S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 46 on his or her witness statement. Thus, the general rule is that facts in issue are to be proved by written evidence-in- chief and oral evidence given under cross-examination. Of course, facts may also be proved by hearsay evidence pursuant to the Civil Evidence Act 1998 and FPR rr 23.2–23.5, but the general rule is that oral evidence given under cross-examination is the gold standard. 8 Why is this? It is because it reflects the long-established common-law consensus that the best way of assessing the reliability of evidence is by confronting the witness. In Crawford v Washington (2004) 124 S Ct 1354, para 62 Scalia J, when discussing the explicit command to afford cross- examination of witnesses in criminal cases contained within the Sixth Amendment to the US Constitution, stated: “To be sure, the clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined. Cf 3 Blackstone, Commentaries, at 373 (‘This open examination of witnesses … is much more conducive to the clearing up of truth’); M Hale, History and Analysis of the Common Law of England 258 (1713) (adversarial testing ‘beats and bolts out the truth much better’).” 9 It should not be thought that this consensus or viewpoint is confined to criminal causes. Thus, in Goldberg v Kelly (1970) 397 US 254, a case about the entitlement to receive certain federal welfare benefits, Brennan J stated, at p 269: “In almost every setting where important S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 47 decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” 63.2 Berezovsky v Abramovich [2012] EWHC 2463 (Comm): 92. … However, it would not have been practical, given the length and complexity of the factual issues involved, for the court to have required evidence in chief to have been given orally. It was for that reason that cross-examination, in particular of Mr. Berezovsky and Mr. Abramovich, assumed such a critical importance. [64] Evaluating and weighing the evidence, in my view, besides the matters alluded to in the 3 preceding paragraphs, it is inherently improbable that D4 could have been the beneficial owner of D5 and D6 as none of the cheques issued from the bank accounts of P2, D5 or D6 were made payable to D4. Instead, only a paltry sum of RM12,000.00 was paid to the personal representative of D4, Tai Ken Sin after the disposal of D5 and D6 between January 2019 to August 2019. [65] For that matter, neither is William Chan’s bare assertion that he was invited by D4 to join D5 and made a director, with his background as a lorry driver. Of the sum of RM261,866.82 paid to him, he testified that ‘approximately half’ was paid to the late D4 but however was not able to show any documentary proof except for his bare assertion. In any case, if half the money was meant for the late D4, it simply does not make sense to me for D5 to pay William Chan and then, for William Chan to pay D4. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 48 [66] As a director of D5, William Chan was a totally dreadful witness; he had not the faintest idea of his duties and glaringly, he did not even know where D5’s factory is when questioned during cross-examination. It can only mean there is no factory. Clearly to me, William Chan was spinning a story, and his evidence appears to be calculated to support D1 and D3’s machinations which are self-serving and a disingenuous opportunistic posturing to explain away their actions to take over D5 and D6 for a paltry sum of RM10.00 for themselves, rather than provide this court with frank disclosure. It is demonstrably clear to me that the central figures of D5 are D1 and D3. I do not find D1 and D3’s testimony that D3, Willam Chan, Chang Shaw Horng, Cheong Wai Loon and Jainuri Bin Sarip, joined D5 and D6 at D4’s request to be convincing at all. D4 is now dead and not able to testify. There is simply no credible evidence adduced to substantiate D1, D3 and William Chan’s testimony that D4 is the owner of D5 and D6; nether is there evidence that D4 had received cash payments or direct payments in his offshore account or any account at all. D1, D3 and William Chan were clearly making up stories as the evidence unfolded in Court depending on which direction the wind was blowing. [67] I find the Plaintiffs’ assertion that the motive for D1 and D3 to dispose off D5 and D6 ostensibly to D4 is purely for financial gain is not without basis from the payments uncovered through the banking documents secured from the discovery applications filed by the Plaintiffs. The Plaintiffs have shown: 67.1 D1 has caused to be issued cheques from P1, P2, D5 and D6 made payable to himself before and even after the S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 49 disposal of D5 and D6. There are 51 cheques totalling RM1,321,158.40 whereby 33 cheques were issued before D1 resigned as director of P2, D5 and D6 and 18 cheques were issued after D1 resigned as director of P2, D5 and D6. Of these 51 cheques pleaded by the Plaintiffs, D1 has admitted in the Agreed Facts that a total of 44 cheques in the total sum of RM1,267,984.49 have been issued to him from the account of P1, P2, D5 and D6 between 16.10.2018 to 6.4.2020. Out of these admitted 44 cheques, 26 cheques were issued to D1 from P1’s UOB Account, P2’s UOB Account, D5’s RHB Account and D6’s Alliance Account between 16.10.2018 to 28.3.2019 in the total sum of RM559,360.78. The balance of 18 cheques were issued to D1 from D5’s RHB Account, D6’s Alliance Account and D6’s UOB Account between 5.4.2019 to 6.4.2020 in the total sum of RM708,623.71. No documentary evidence or directors’ resolutions adduced during the trial by D1 to justify the purpose of these 44 cheques issued by P1, P2, D5 and D6 that were made payable to him. The only justification given by D1 in D1’s Witness Statement was that these cheques which contained his signature were all issued according to the mandate given to him as the authorised signatory. A company’s bank account cannot by any means be treated as a private ATM machine by its directors or officers. The refusal to explain what the payments were for, can only lead to one irresistible conclusion that these orgy of cheque payments were wrongly and fraudulently issued by D1 to S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 50 himself for his own personal benefit: 67.2 D1 has also caused to be issued cheques from D5 and D6 to the company and individuals who are related to D1 before and after the disposal of D5 and D6: (i) A total of 5 cheques in the total sum of RM30,367.65 issued between March 2019 to May 2019 and February 2020 from D6’s Alliance Account made payable to Avest Asset, a company belonging to D1; (ii) A Cheque dated 25.7.2016 in the sum of RM46,000.00 issued from D6’s UOB Account to D1’s wife, Wong Yuet Wan, (iii) 8 cheques in the total sum of RM135,884.86 issued between August 2019 to February 2020 from D5’s RHB Account made payable to D3; (iv) A total of 23 cheques in the total sum of RM1,314,915.60 issued between May 2018 to February 2020 from D5’s RHB Account and D6’s UOB Account made payable to Chang Shaw Horng; (v) 15 cheques in the total sum of RM400,240.27 issued between March 2019 to January 2020 from D5’s RHB Account made payable to Cheong Wai Loon; (vi) 4 cheques in the total sum of RM12,000.00 issued between January 2019 to August 2019 from D5’s RHB Account and D6’s Alliance Account made payable to Tai Ken Sin (D4’s son); (vii) 16 cheques in the total sum of RM261,866.82 issued between March 2019 to June 2020 from D5’s RHB Account and D6’s Alliance Account made payable to William Chan Siew Kei; (viii) 16 cheques in the total sum of RM53,316.39 issued between S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 51 March 2019 to December 2020 from D5’s RHB Account and D6’s Alliance Account made payable to Jainuri Bin Sarip. [68] D2 testified that Danny Chang Shaw Horng is the right-hand man of D1 and he takes instructions from D1. D2 also testified that D1, D3, Cheong Wai Loon, Chang Shaw Horng and Jainuri Bin Sarip were working together before the disposal of D5 and after D5 and D6 were disposed they left. D1 has admitted in the Agreed Facts that the number of cheques and the total amount of the cheques issued from D5 and D6 to Avest Asset, Wong Yuet Wan, D3, Tai Ken Sin, William Chan Siew Kei and Jainuri Bin Sarip are consistent with the Plaintiffs’ pleaded case. [69] D1 has also admitted during his cross-examination by the Plaintiffs’ counsel that he has issued or caused to be issued cheques that were made payable to Avest Asset, D3, Tai Ken Sin, William Chan Siew Kei, Jainuri Bin Sarip, Chang Shaw Horng and Cheong Wai Loon. However, in respect of the cheques issued to Chang Shaw Horng and Cheong Wai Loon, out of 23 cheques in the total sum of RM1,314,915.60 made payable to Chang Shaw Horng, D1 has only admitted in the Agreed Facts that there were 20 cheques in the total sum of RM469,345.61 issued between May 2018 to February 2020 from D5’s RHB Account, D6’s UOB Account and D6’s Alliance Account made payable to Chang Shaw Horng. Further, out of 15 cheques in the total sum of RM400,240.27 made payable to Cheong Wai Loon, D1 only admitted that there were 14 cheques in the total sum of RM396,609.15 issued between March 2019 to January 2020 from D5’s RHB Account made payable to Cheong Wai Loon. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 52 [70] There was no evidence adduced by D1 to justify the purpose of these cheques issued or caused to be issued by him from D5 and D6 that were made payable to the company and individuals related to him. Again, the justification given by D1 in D1’s Witness Statement was that these cheques which contained his signature were all issued according to the mandate given to him as the authorised signatory. [71] D1 has also issued and caused to be issued a total of 28 cheques in the sum of RM413,810.97 from D5’s RHB Account between March 2019 to December 2020 after the disposal of D5 and D6. The details of these 28 Cash Cheques issued from D5’s RHB Account are summarized in Schedule A attached to the Plaintiffs’ Written Submissions. These 28 cash cheques were excluded from the Agreed Facts. However, during cross-examination by the Plaintiffs’ counsel, D1 admitted that these 28 cheques are cash cheques issued from D5’s RHB Account between March 2019 to December 2020. During re-examination, D1 testified that these cash cheques may have been payment to the late D4. Again, D4 is dead and can tell no tale. Without evidence from D1 as to what these cash cheques were for, the irresistible inference must be that they were issued for his own benefit. [72] D1 has issued and caused to be issued a total of 98 cheques in the sum of RM6,458,806.45 from D5’s RHB Account between February 2016 to July 2020. The details of these 98 Cash Cheques issued from D5’s RHB Account are set out in Schedule B attached to the Plaintiffs’ Written Submissions (Encl. 380). These 98 cash cheques were excluded from the Agreed Facts. However, during cross-examination by the Plaintiffs’ counsel, D1 had admitted that these 98 cheques are cheques issued from D5’s RHB S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 53 Account between February 2016 to July 2020. Again there is no evidence from D1 and there is no Board of Directors’ resolution from D5 to explain the reasons for these 98 cheques. The same irresistible inference must be that all these cheques were wrongly and fraudulently issued or caused to be issued by D1 for his own personal benefit. [73] D3 did not care to explain why he was paid RM135,884.86 between August 2019 to February 2020 from D5’s account. D1 and D3’s arguments that the Plaintiffs have failed to adduce any evidence to show that there is any misfeasance in the withdrawals, that there were overlaps and or inclusion of returned cheques are but bare assertions to me as the burden has shifted to D1 and D3 to explain what the orgy of payments were for. [74] D1 and D3’s conduct throughout the entire saga gave good clues as to whether they are acting honestly and transparently or in a dishonest fashion. Lord Blackburn in Brogden v Metropolitan Railway Company (1876– 77) LR 2 App Cas 666 HL(E) had occasion to say: “…is trite law that the thought of man is not triable, for even the devil does not know what the thought of man is... [75] The concatenation of circumstances and events, the acts and conduct of D1 and D3, the totality of their dealings and the oral evidence pieced together and weighed, I find that there is credible, cogent, convincing, and compelling tangible evidence before the court that the Plaintiffs have sufficiently proven on a balance of probability that P2’s disposal of D5 and D6 ostensibly to D4 was wrongful without first obtaining the approval from S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 54 P1 as the ultimate shareholder of D5 and D6. The disposal was to enrich D1 and D3 and their cohorts. D1’s actions are patently in breach of his following duties as a director of P2, D5 and D6: 75.1 To exercise powers in accordance with the CA, for a proper purpose and in good faith in the best interest of the company (section 213(1)). 75.2 To exercise reasonable care, skill and diligence (section 213(2)). 75.3 To make business judgments for a proper purpose and in good faith, not to have a material personal interest in the business judgment and to act in the reasonable belief that the business judgment is in the best interest of the company (section 214(1)). 75.4 Not to engage in business to gain a benefit for himself or any other person, without the consent or ratification of a general meeting (section 218(1)(a to e): “Section 218(1) CA 2016: Prohibit ion against improper use of property, posit ion, etc. A director or off icer of a company shall not, without the consent or rat if ication of a general meeting- (a) use the property of the company; (b) use any information acquired by virtue of his posit ion as a director or off icer of the company; S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 55 (c) use his posit ion as such director or officer; (d) use any opportunity of the company which he became aware of, in the performance of his functions as the director or off icer of the company; o r (e) engage in business which is in competit ion with the company, to gain directly or indirect ly, a benefit for himself or any other person, or cause detriment to the company.” [76] It is clear that D1 and D3 has obtained secret profit by the cheques paid out to them from D5’s accounts. The evidence is undeniable. Their conduct is also dishonest or fraudulent, whether equitable fraud or common law fraud. [77] As for what constitutes dishonesty, this is set out in the judgment of Lord Nicholls in the decision of the Privy Council in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378; [1995] 3 All ER 97; [1995] 3 WLR 64 where he said: “…Honesty, indeed, does have a strong subjective element in that it is a description of a type of conduct assessed in the light of what a person actually knew at the time, as distinct from what a reasonable person would have known or appreciated. Further, honesty and its counterpart dishonesty are mostly concerned with advertent conduct, not inadvertent conduct. Carelessness is not dishonesty. Thus for the most part dishonesty is to be equated with conscious impropriety. However, these subjective characteristics of honesty do not mean that individuals are free to set their own standards of honesty in particular S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 56 circumstances. The standard of what constitutes honest conduct is not subjective. Honesty is not an optional scale, with higher or lower values according to the moral standards of each individual. … “All investment involves risk. Imprudence is not dishonesty, although imprudence may be carried recklessly to lengths which call into question the honesty of the person making the decision. This is especially so if the transaction serves another purpose in which that person has an interest of his own.” “…Ultimately, in most cases, an honest person should have little difficulty in knowing whether a proposed transaction, or his participation in it, would offend the normally accepted standards of honest conduct.” [78] To prove equitable fraud, the Plaintiffs do not need to demonstrate that D1 and D3 have an intention to deceive, the Plaintiffs only need to show that there was a relationship of trust and confidence between the parties, and that there has been unconscionable conduct by D1 and D3 - see Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751 FC: “[23] The 'fraud' of which Lord Halsbury spoke in Salomon v A Salomon & Co Ltd includes equitable fraud. In the recent Australian case ofThe Bell Group Ltd (In liquidation) v Westpac Banking Corporation (No 9) [2008] WASC 239; 70 ACSR 1, Owen J discussed the distinction between equitable fraud and fraud at common law. His Honour said: 4849One of the leading Australian texts on equitable principles is R Meagher, D Heydon and M Leeming, Meagher, Gummow and Lehane's Equity Doctrines and Remedies (4th Ed, 2002). When I refer to this text from time to time in these reasons I will do so by the shortened phrase 'Meagher, Gummow and Lehane'. At [12-050] the authors set out S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 57 a non-exhaustive list of factual and legal situations that have traditionally been treated as species of equitable fraud. They include: (a) misrepresentation by persons under an obligation to exercise skill and discharge reliance and trust (for example in fiduciary relationships), and inducements to contract or otherwise for the representee to act to his detriment in reliance on the representation; (b) the use of power to procure a bargain or gift, resulting in disadvantage to the other party; (c) conflict of interest against a duty arising from a fiduciary relationship; and (d) agreements which are bona fide between the parties but in fraudof third persons. ……….. 4853This, then, marks out a significant difference between common law fraud and equitable fraud. The latter does not require proof of an actual intention to deceive. To summarise, a plea of fraud at common law will not succeed absent proof of an intention to deceive. Such an intention is not an ingredient of equitable fraud which is, essentially speaking, unconscionable conduct in circumstances where there exists or is implied or imposed a relationship of trust or confidence.” See also Ktl Sdn Bhd Ktl Sdn Bhd v Leong Oow Lai [2014] MLJU 1405 at [93]. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 58 [79] That there is a relationship of trust or confidence between D1, D3 and the Plaintiffs cannot be disputed. Their disposing off D5 and D6 as shell companies and then take over its business, and make money to pay themselves at the Plaintiffs’ expense is unconscionable to come within equitable fraud. The Privy Council in Hart v O’Connor [1985] 1 AC 1000 at p 1024C described unconscionable conduct as follows: … "Fraud" in its equitable context does not mean, or is not confined to, deceit; "it means an unconscientious use of the power arising out of these circumstances and conditions" of the contracting parties; Earl of Aylesford v. Morris (1873) L.R. 8 Ch. App. 484, 491. It is victimisation, which can consist either of the active extortion of a benefit or the passive acceptance of a benefit in unconscionable circumstances. [80] The Plaintiff will have to show intention for common law fraud - Takako Sakao (supra): [23] …. The term common law fraud is often used to describe the tort of deceit, or the making of fraudulent misrepresentations. The tort of deceit is said to encompass cases where the defendant knowingly or recklessly makes a false statement, with the intention that another will rely on it to his or her detriment…….. In Armitage v Nurse [1997] EWCA Civ 1279; [1998] Ch 241; [1997] 3 WLR 1046, Millett LJ discussed the meaning of 'actual fraud' in the context of an exemption clause. At p 1053, His Lordship described actual fraud as connoting, at least, 'an intention on the part of the trustee to pursue a particular course of action, either knowing that it is contrary to the interests of the beneficiaries or being recklessly indifferent whether it is contrary to their interests or not'….. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 59 [81] Once fraud is proved, it vitiates all transactions whatsoever. Fraud unravels all. As cited by the Federal Court in Lai Fee v Wong Yu Vee [2023] 3 MLJ 503 at [63]: [63] In CIMB Bank Bhd v Maybank Trustees Bhd and other appeals, the Federal Court ruled that a party which had committed fraudulent misappropriation of trust monies could not benefit from its own fraud and that that party cannot rely on the exemption clause under the contract as a defence. Ariffin Zakaria CJ writing for the Federal Court referred to the following remarks of Lord Bingham in HIH Casualty and General Insurance Ltd, at para [15]: … fraud is a thing apart. This is not a mere slogan. It reflects an old legal rule that fraud unravels all: fraus omnia corrumpit. It also reflects the practical basis of commercial intercourse. Once fraud is proved, ‘it vitiates judgments, contracts and all transactions whatsoever’: Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at p 712, per Lord Justice Denning: ‘Parties entering into a commercial contract will no doubt recognise and accept the risk of errors and omissions in the preceding negotiations, even negligent errors and omissions. But each party will assume the honesty and good faith of the other; absent such an assumption they would not deal’. [82] In my view, there is sufficient direct as well as circumstantial evidence to prove the allegation of fraud whether equitable fraud or common law fraud. In Ng Pak Cheong v Global Insurance Co Sdn Bhd [1995] 1 CLJ 223; [1995] 1 MLJ 60; [1994] 3 AMR 2663 (HC), Mohamed Dzaiddin J (as he then was) dealt with the reception of circumstantial evidence in proving fraud. The learned judge said, “...it is not the law of evidence that every step in the allegation of fraud had to be proved by calling live and admissible evidence nor is it the law that fraud cannot be inferred in the appropriate S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 60 case. The inference, however, should not be made lightly; the circumstantial evidence must be so compelling and convincing that bearing in mind the high standard of proof the inference is nevertheless justified...”. [83] In CGU Insurance Berhad v Asean Security Paper Mills Sdn Bhd [2006] 3 MLJ 1; [2006] 2 CLJ 409 (CA) Gopal Sri Ram JCA said: “…While mere suspicion is insufficient, it is not the law that a litigant who alleges fraud must unravel each and every act of the person accused of fraud. Like any other fact, fraud may be inferred from circumstantial evidence with the added proviso that there must be a foundation of evidence and not mere suspicion.” (Emphasis added) [84] It is also useful to refer to s. 17 of the Contracts Act 1950 (“the Act”) where it defines ‘fraud’ as follows: “Fraud’ includes any of the following acts committed by a party to a contract or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contracts: (a) the suggestion, as to a fact, of that which is not true by one who does not believe it to be true; (b) the active concealment of a fact by one having knowledge or belief of the fact; (c) a promise made without any intention of performing it; (d) any other act fitted to deceive; and (e) any such act or omission as the law specially declares to be fraudulent.” S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 61 [85] The overarching question is how can it not be said in the given circumstances of this case that there was no fraud committed against the Plaintiffs when there is compelling evidence discussed earlier that D5 was actively trading? [86] Not withstanding D3 is never a director, however as the Group Accountant of P1, P2, D5 and D6, he is bound as an officer or employee to act in the best interest, to act in good faith and to exercise reasonable care, skill and diligence in performing his duties. Instead, in breach of his duties, he rendered dishonest assistance to D1 in the disposal of D5 and D6. [87] As a general rule for dishonest assistance, there must be a breach or trust or fiduciary by someone other than the defendant, the defendant must have helped that person in the breach, and the defendant must have a dishonest state of mind. [88] Dishonest assistance was defined by Lord Selbourne LC in Barnes v Addy (1874) L.R 9 Ch App 244 (Ch App), at pages 251 to 252 which states as follows: “…but on the other hand, strangers are not to be made constructive trustees merely because they act as agents of trustees in transactions within their legal powers …unless those agents receive and become chargeable with some part of the trust property, or unless they assist with knowledge in dishonest and fraudulent design on the part of the trustees.” [89] To establish dishonest assistance, the following elements must be established through an objective test: S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 62 89.1 there has been a disposal of the Plaintiff’s assets in breach of trust or fiduciary duty by someone other than the Defendant; 89.2 the Defendant had assisted or had procured the breach; 89.3 the Defendant had acted dishonestly or had a dishonest state of mind; and 89.4 this resulted in losses suffered by the Plaintiff. [90] The House of Lords in Twinsectra v Yardley [2002] 2 AC 164 (HL), adopted an objective-subjective test. In short, this test comprises of two key elements: 90.1 the Defendant’s behaviour was dishonest by the standards of honest people; and 90.2 the Defendants must be shown to have appreciated that their behaviour contravened ordinary standards of conduct. [91] The Twinsectra tests were upheld in 3 Federal Court t cases: 91.1 CIMB Bank Bhd v Maybank Trustees Bhd & Ors [2014] 3 MLJ 169 (FC) 91.2 CIMB Bank Bhd (formerly known as Bumiputera Commerce Bank Bhd) v Sebang Gemilang Sdn Bhd & Anor [2018] 3 MLJ 689 (FC), and S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 63 91.3 Malaysian International Trading Sdn Bhd v RHB Bank Bhd [2016] MLJU 13 [92] As alluded earlier, D1 is in breach of his fiduciary duties to P2, D5 and D6. To successfully demonstrate dishonest assistance, D3 must have assisted in the breach. D3 must have acted dishonestly, resulting in losses suffered by the Plaintiff. The Federal Court in CIMB Bank [2014] supra stated that: [146] ……those principles require more than knowledge of the facts which make the conduct wrongful. They require a dishonest state of mind, that is to say, consciousness that one is transgressing ordinary standards of honest behaviour…” [93] As accountant for D5 and D6 even after disposal of these companies going by William Chan’s testimony, D3 was clearly aware that the disposal of P2’s shares in D5 and D6 for a nominal value of RM10.00 each is not in the best interest of P2, D5 and D6; he was fully aware that the D5 and D6 have not ceased operations and he was aware of the active business that D5 at least was carrying on judging by the numerous CA and CO applied to MITI and he clearly knew that there was no intention to dispose off D5 and D6 at their true value and the disposal at a nominal value was to cheat and defraud the Plaintiffs. He assisted D1 to turn D5 and D6 to be shell companies, he assisted D1 to prepare the Percentage Ratios to justify the valuation of D5 and D6 at the nominal value of RM10.00, and he assisted to procure D2’s signature to the D5 and D6 agreements and the Director’s circular resolution of P2, D5 and D6 authorizing the disposal of the D5 and D6 shares and the Plaintiffs have suffered a loss. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 64 Unlawful/wrongful use of P2’s Manufacturing Licence dated 16.10.2017 to export materials worth RM24,347,200.66 to Turkey and Pakistan from 2017 – 2019? [94] The Plaintiffs’ witness, Syukri Sulaiman (PW-7) testified that: 94.1 from June 2017 to January 2019, 84 transactions were allegedly undertaken for or on behalf of P2 using P2’s Manufacturing Licence and CO to enjoy preferential duties; 94.2 Through these 84 transactions, materials worth USD6,077,683.64 (equivalent to RM24,347,200.66 as at 20.7.2020) were exported to Turkey and Pakistan; 94.3 these materials worth USD6,077,683.64 or RM24,347,200.66 as at 20.7.2020 exported to Turkey and Pakistan were not disclosed in P2’s audited accounts for year 2017 or 2018 or 2019. None of the proceeds from the materials exported to Turkey and Pakistan had been declared as revenue or sales proceeds to P2 and no dividend has been declared to P2; 94.4 from the list of the 84 transactions, the sales of goods for the financial year ended 30.6.2017 were recorded at USD8,637.25 (RM35,914.72). The sales of goods for the financial year ended 30.6.2018 were recorded at USD2,814,519.22 (RM9,984,079.63). The sales of goods for the financial year ended 30.6.2019 were recorded at USD3,254,527.17 (RM13,162,858.98); S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 65 [95] D1 admitted during cross-examination that he is not disputing the 84 transactions and he has directed D3 to undertake the 84 transactions: “AR : Right, ok. Ok. And, you are not disputing these 84 transactions, yes, Mr Woo? DW2 : No. AR : Correct. So, your, because you are aware of this, because you directed Mr Au to, you and Mr Au did this, right? You are aware that Mr Au did it, right, these 84 transactions? DW2 : Yes.” [96] When questioned by the Plaintiffs’ counsel, D1 alleged that 2 transactions No. 30 and No. 84 are from raw material to finished good namely transaction while the balance of 82 transactions are value added transaction whereby customer will have a preferred supplier. To support its case, the Plaintiff adduced contemporaneous evidence in the form of the CO, documents relating to the 84 transactions as well as P2’s audited reports for financial year ended 30.6.2017, 30.6.2018 and 30.6.2019. [97] Of these 84 unaccounted for transactions in P2’s books, Syukri Sulaiman (PW-7) testified as follows: 97.1 From the documents provided by RHB Bank pursuant to the Discovery Order, the Plaintiffs have discovered that part of the proceeds from the sale worth USD6,077,683.64 (equivalent to RM24,347,200.66 as at 20.7.2020) using P2’s S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 66 Manufacturing Licence amounting RM3,360,019.64 from “Sozteks Kumas Dis”, “Sertan Gokpinar”, “R.S. Traders” and “Navan Tekstil Dis Ticaret Ltd” were deposited into D5’s RHB Account as appearing in the bank statements of D5’s RHB Account for July 2018, February 2019, March 2019, April 2019, May 2019, September 2019, October 2019 and November 2019;“Sozteks Kumas Dis”, “Sertan Gokpinar”, “R.S. Traders” and “Navan Tekstil Dis Ticaret Ltd” are listed as the buyers in the 84 transactions which were allegedly undertaken for or on behalf of P2 using P2’s Manufacturing Licence 97.2 Plaintiffs have also discovered that part of the proceeds from the sale worth RM24,347,200.66 using P2’s Manufacturing Licence amounting to RM354,854.00 been deposited into D6’s Alliance as appeared in the bank statements of D6’s Bank Account for February and March 2019; “Ali Aslan” was also listed as one of the buyers in the 84 transactions; 97.3 From the sum of RM3,360,019.64 that went into D5’s RHB Account as pleaded by the Plaintiffs, D1 and D3 have admitted in the Agreed Facts that the total amount of payment from overseas buyers that went into D5’s RHB Account is in the sum of RM3,279,726.89; 97.4 D1 and D3 have also admitted in the Agreed Facts (Deposit of Payments by Overseas Payors) that the total amount of S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 67 payment from overseas buyers that goes into D6’s Alliance Account is in the sum of RM354,854.00; [98] D1 and D3 produced no evidence that the 84 transactions have been accounted for in the books of the P2. D1 and D3 instead argued that (i) the Plaintiffs have not produced their bank statements to substantiate their allegations that none of the proceeds from the 84 Transactions were paid to P2 or P1; (ii) P2’s 2020 Audited Accounts, P2’s 2021 Audited Accounts and P2’s 2022 Audited Accounts are unqualified audited accounts filed AFTER the commencement of this Suit on 28.7.2020 and these accounts made no mention of any missing proceeds, (iii) the payments made to D5 and the payments made to D6 does not match the amounts in the 84 Transactions as such, the Plaintiffs have failed to discharge their burden in proving that the payments made to D5 and the payments made to D6 were payments made pursuant to the 84 Transactions. [99] With respect to D1 and D3’s contention of that P2’s audited reports of 2020, 2021 and 2022 are unqualified in my view does not bar the Plaintiffs from raising the complaints that the 84 transactions were not reflected in P2’s audited reports for financial year ended 30.6.2017, 30.6.2018 and 30.6.2019. In this regard, the description of the role of an auditor as exposited by the English Court of Appeal in the case of Re City Equitable Fire Assurance Co Ltd [1924] All ER Rep 485 at page 492 is instructive: “But it has been well said that an auditor is not bound to be a detective or to approach his work with suspicion or with a foregone conclusion that there is something wrong. “He is a watchdog, but not a bloodhound.” That metaphor was used by LOPES, LJ, in Re Kingston Cotton Mill Co (No 2) (8). Perhaps, S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 68 casting metaphor aside, the position is more happily expressed in the phrase used by SARGANT, LJ, who said that the duty of an auditor is verification and not detection.” [100] In addition, given that the role of an auditor in performing a statutory audit is merely to express an opinion on the financial statements of a company, it must follow that any audited financial statement ought not to be automatically regarded as conclusive evidence that the accounts of the company itself is free from inaccuracies or errors. Our own Court of Appeal in the case of Soo Boon Siong v Saw Fatt Seong & Ors [2008] 1 MLJ 27 also inter alia held as follows: - "the fact that the director had signed documents concerning the audited accounts including the directors' reports is not conclusive of the validity or truthfulness of the accounts. Thus, a director who has approved the company's audited accounts is still entitled to challenge the correctness of such audited accounts". [Own Emphasis] [101] In short, the role of an auditor is essentially confirmatory rather than investigatory. Thus, any audited accounts are not and would not act as conclusive evidence of the accuracy or truthfulness of the accounts. As such, the fact the auditor did not raise any issue in the audited financial statement is by no means a declaration of truth by the auditor that all the accounts and financial records of P2 are in order. [102] D1 and D3 did not produce an iota of evidence to rebut P2’s evidence on the 84 transactions. Again, the Tindok Besar principle of S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 69 contemporaneous documents must weigh heavily against the D1 and D3 particularly when the 84 transactions were not disputed by D1 as alluded to earlier. D2 is not liable [103] Ps allege that the 2nd Defendant has purportedly breached his fiduciary duties as a director of 2nd Plaintiff, 5th and 6th Defendants pursuant to sections 211, 213(2), 214 and 215 of the Companies Act, 2016 and/or under his contractual obligations as an employee of the 2nd Plaintiff, 5th and 6th Defendants. (See page 269.1 at p. 203 of the Plaintiffs’ Written Submissions [Encl. 380]) [104] I have considered that D2 ‘s level of education is only up to Form 5 and after he was appointed as the director of the 2nd Plaintiff, 5th and 6th Defendants, his duties and involvement were limited to the production aspect of the 2nd Plaintiff’s Factory in Bentong; he had no expertise in the accounting and corporate matters of the 2nd Plaintiff, 5th and 6th Defendants and was never been invited or included in any board of directors meeting or in any management meeting of the 2nd Plaintiff, 5th and 6th Defendants. [105] In Q&A-2 of Supplementary Witness Statements (WSDW-3B) (Encl. 350)]: “I relied heavily on the representations made by the 1st and 3rd Defendants when signing the companies’ documents given to me. To be frank, I had difficulties understanding the contents and significance of the companies’ documents as that were outside of my area of expertise. Further, as the 1st Defendant was my superior, I believed that I should have obeyed him.” S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 70 [106] D2 also testified that D1 is a domineering person; that nobody dares to say no to D1 and that he has signed numerous documents based on D3’s assurance that D1 would bear the responsibilities if anything happened. [107] D1and D3 dispute D2’s testimony in the preceding paragraph on the grounds that there is no evidence to substantiate the same but in my respectful view, evidence includes oral evidence – see section 3 Evidence Act 1950: "evidence" includes— all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry: such statements are called oral evidence; and “fact” means and includes— (a) anything, state of things or relation of things capable of being perceived by the senses; (b) any mental condition of which any person is conscious; [108] D2 also stated that he has signed the D5 Agreement and the D6 Agreement in the best interest of P2. [109] In applying the ‘Charterbridge Principle’ and weighing the evidence by reference to ascertaining the state of mind of D2 on whether as an intelligent and honest man, he was honestly acting in the discharge of his powers in the interests of P2, D5 and D6 when approving the divestment of D5and D6 and paying due regard to the circumstances surrounding the decision, I accept D2’s evidence and find: S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 71 109.1 an honest and intelligent man in the position of D2 acted reasonably when he relied on the representations of D1 and D3 at all times; there was no reason no basis for D2 not to trust D1 and D3 and 109.2 D2 had signed various documents including the D5 Agreement and the D6 Agreement, on the instructions of D1 and D3. [110] D2 was not an executive director of P2, D5 and D6 – he was entitled to rely on what D1 and D3 told him. In AWA Ltd v Daniels Trading As Deloitte Haskins & Sells And Others (1992) 7 ACSR 759, the Supreme Court of New South Wales held at pg. 867 – 868 and 878 – Pg 867 “Another division of function is between the non- executive directors and the chief executive officer or managing director. Generally, a chief executive is a director to whom the board of directors had delegated its powers of management of the corporation’s business. Usually, the chief executive is employed under a contract of service which will either include an express term or, in the absence of an express term, an implied term, that the chief executive will exercise the care and skill to be expected of a person in that position. The degree of skill required of an executive director is measured objectively. In contrast to the managing director, non-executive directors are not bound to give continuous attention to the affairs of the corporation. Their duties are of an intermittent nature to be performed at periodic board meetings, and at meetings of any committee of the board upon which the director happens to be placed. Notwithstanding a small number of professional company directors there is no objective st andard of the reasonably competent S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 72 company director to which they may aspire. The very diversity of companies and the variety of business endeavours do not allow of a uniform standard. … Pg 868 A director is justified in trusting officers of the corporation to perform all duties that, having regard to the exigencies of business, the intelligent devolution of labour and the articles of association, may properly be left to such officers: Dovey v Cory, supra, 485 –6, 492 –3; Re Brazilian Rubber Plantations & Estates Ltd, supra, 438; Huckerby v Elliot [ 1970] 1 All ER 189 at 193, 195. A director is entitled to rely without verification on the judgment, information, and advice of the officers so entrusted. A director is also entitled to rely on management to go carefully through relevant financial and other information of the corporation and draw to the board’s attention any matter requiring the board's consideration. The business of a corporation could not go on if directors could not trust those who are put into a position of trust for the express purpose of attending to details of management: American Law Institute “Principles of Corporate Governments, Analysis and Recommendations” pp 75, 176. Reliance would only be unreasonable where the director was aware of circumstances of such a character, so plain, so manifest and so simple of appreciation that no person, with any degree of prudence, acting on his behalf, would have relied on the particular judgment information and advice of the officers: Re City Equitable Fire Insurance Co, supra, 428. A non- executive director does not have to turn him or herself into an auditor, managing director, chairman or other officer to find out whether management are deceiving him or her: Graham v Allis-Chalmers Manufacturing Co 188 A 2nd 125 at 130. …… Pg 878 “… the commercial reality of the matter is that, in these days of conglomerates and perhaps transnational conglomerates at that, the opportunity for non- S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 73 executive directors to exercise meaningful control over management is as slight as the ability of ministers to control a vast bureaucracy. [111] AWA Ltd v Daniels Trading As Deloitte Haskins & Sells And Others’s principles that the non-executive directors' duties cannot be as co- extensive as that of executive directors was accepted and followed in Sime Darby Bhd & Ors v Dato' Seri Ahmad Zubair @ Ahmad Zubir bin Hj Murshid & Ors (Tun Musa Hitam & Ors, third parties) [2012] 9 MLJ 464. [112] I find on the whole, that D2 was a credible witness. If at all, there were discrepancies in his evidence, they were minor or not relevant and does not change the fact that his evidence when analysed, pointed to a reliance on D1 and D3’s representations. He signed what he did bona fide and in the best interests of P2, D5 and D6 and not exercised for an improper purpose in breach of his statutory, fiduciary and common law duties as director. In this regard, it has not escaped my attention that Ps acknowledge that: (i) D2 was deceived by the 1st and 3rd Defendants in the disposal of the 5th and 6th Defendants; (ii) D2 is an honest witness; and (iii) the Plaintiffs are not pursuing other claims or cause of actions against the 2nd Defendant as pleaded in the Plaintiffs’ Amended Statement of Claim dated 11.11.2021 except for the alleged breach of fiduciary and/or contractual duties to the 2nd Plaintiff, 5th and 6th Defendants. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 74 [113] Even if I am wrong that notwithstanding D2’s honesty and the reasonableness of his action in making the D5D6 divestment, that there is nevertheless a breach of duties, given the factual matrix of this case and considering all the circumstances, it is certainly arguable and persuasively so that D2 ought fairly to be excused for his default or breach of duty (if any). I thus exercise my discretion to exculpate and relieve D2 wholly for default or breach of duties (if any) under s. 581, CA 2016. Claim by D1 against 2nd TP [114] The issue is whether PP2 ought to be made liable to D1 for the entirety of the Plaintiffs’ claim against the 1st Defendant. [115] The whole basis of D1’ claim is that: 115.1 D2, TP2 and Fong Wai had taken over the management of P2 from D1 when D1 resigned on 12.2.2019; 115.2 D2, TP2 and Fong Wai did not raise any complaint of defective or incomplete handover against D1 at the material time; by dint of fact that D2, TP2 and Fong Wai had taken over the management of P2 after D1 resigned on 12.2.2019 without raising any complaints is sufficient to show that the handover is in order; 115.3 Thereafter, P2’s New Board Of Directors (Syukri and Amirul Afif Bin Abd Aziz) who were appointed on 19.7.2019 took S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 75 over the management of P2 from D2, TP2 and Fong Wai around July 2019 when D2, TP2 and Fong Wai resigned from P2 on 22.7.2019; 115.4 P2’s New Board Of Directors did not take over P2 from D1 was admitted by Kok Pauline and TP2 during cross- examination; 115.5 As such, if there is any failure in properly keeping all of the documents related to the business dealings of D5 and D6 belonging to P2, the Disposal Of Shares and the 84 Transactions as alleged by P2’s New Board Of Directors, it is the responsibility of D2, TP2 and Fong 111.6 Thus , in the event that this Court allows any of the Plaintiffs' claims against D1 based on the loss of P2’s documents, all reliefs, damages, benefits and/or costs allowed by this Honourable Court against D1 shall jointly or severally be borne by D2 and TP2. [116] It cannot be disputed that P1 had lodged a police report against D1 on 25.4.2019 regarding the Disposal Of Shares and another police report against D1 on 30.4.2019 regarding missing documents belonging to P1. These police reports were suggested by D1 to be afterthoughts as they were made after D1 brought Suit 176 against P2 on 22.3.2019 and after D1 brought Suit 588 against P1 on 4.4.2019. S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 76 [117] TP2 in summary submitted that: 117.1 TP2 was not empowered with any authority by the Plaintiffs’ board of directors to take any action against D1 in respect of the handover of the management of P2 by D1 and before a complaint could be made, proper investigation need to be carried out; 117.2 The acts upon which the Plaintiffs have predicated this action against the Defendants occurred prior to TP2’s appointment as a director of P2; and 117.3 D3 has confirmed during cross-examination that TP2 should not be liable for the Disposal Of Shares, the Obtainment Of COs and the 84 Transactions. [118] I find there is merit in TP2’s postulation that before a complaint can be made, proper investigation must first be carried out; that to this court is common sense. [119] In analysing this TP claim, it is to be noted that D1’s SOC does not plead material facts as to whether he is seeking a contribution or an indemnity from TP2 except that in para 15(a) relief that if D1 is found liable to the Ps, TP2 and D2 are to be jointly and severally liable to pay the entire claim. [120] This prayer in my view is somewhat contradicted by para 123 of the D1’s submissions in enc 375 and para 43 and 46 of submissions in reply enc S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 77 389 where he now seeks “in the event that this Honourable Court allows any of the Plaintiffs' claims against D1 based on the loss of P2’s documents, all reliefs, damages, benefits and/or costs allowed by this Honourable Court against D1 shall jointly or severally be borne by D2 and TP2.” Yet again in the same para 123 of enc 375 and para 46 of enc 389, D1 again asks for prayer 15 (a) to be allowed! [121] Even after a striking out application was made against D1 in enc 199, D1 did not see it fit to amend his SOC against the TPs. [122] Whether for contribution or indemnity, the material facts must be pleaded for the purpose of formulating a claim for contribution or indemnity. I find in any case there is in law no basis for a claim whether for contribution or indemnity. No Common Liability which Gave Rise to Right to Contribution [123] A right to contribution only arises in situations where a common liability exists between parties. Such a common liability usually exists between inter alia joint debtors, joint trustees, joint sureties or joint tortfeasors. In Halsbury’s Laws of England, Volume 9(1) (4th Edition), paragraphs 1116-1117, it is stated as follows: “A right to contribution arises whenever a person, who owes with another a duty to a third party and is liable with that other to a common demand, discharges more than his proportionate share of that duty. The essence of the right to a contribution lies in the liability to a common demand; and where there is such liability, the court will, subject to any S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 78 contractual provision modifying or limiting any claim to a contribution, make an assessment of contribution. A common liability being the essence of the right of contribution, no such right against one tenant in common existed in favour of the other tenant in common of a house, who had spent money on proper and reasonable repairs…” [124] What is a common liability can be found in Lee Swee Seng J’s decision in Sime Darby Bhd & Ors v Dato’ Seri Ahmad Zubair @ Ahmad Zubir bin Hj Murshid & Ors (Tun Musa Hitam & Ors, third parties) [2012] 9 MLJ 464, in which he held at paragraphs [84] to [87] that: “[84] The third parties also pointed out that a claim for contribution is in effect a claim to a partial indemnity and it usually arises between joint debtors, joint tortfeasors and the like. I agree that the right to contribution depends on whether liability was co-ordinate, in the sense that liability is of the same nature and to the same extent. Parties must be in pari delicto and a party who is guilty of fraud, illegality, wilful misconduct or gross negligence is not entitled to contribution from his fellow directors when it has not been pleaded how they have been a participating party to the fraud, illegality, wilful misconduct or gross negligence. [85] In Burke & Anor v LFOT Pty Ltd (2002) 1 CLR 282 the first appellant, B, was a director of the second appellant, Hanave Pty Ltd (Hanave). Hanave purchased a commercial property from the first respondent, LFOT. During the course of the sale of the property LFOT engaged in misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) (the Act). LFOT's conduct induced Hanave to purchase the property at an inflated price. B was Hanave's solicitor and he acted for Hanave in its purchase of the S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 79 property. In doing so he breached his duty of care to Hanave by failing to check the accuracy of the representations made by LFOT. [86] The Federal Court assessed Hanave's loss under s 82 of the Act as $750,000, and it ordered LFOT to pay that sum to Hanave. The Federal Court also found that LFOT was entitled to a 50% contribution from B because B was also liable to Hanave. [87] B appealed to the High Court and in allowing the appeal the High Court held, inter alia, at pp 292–293 that: [15] The doctrine of equitable contribution applies both at common law and in equity. It is usually expressed in terms requiring contribution between parties who share 'co-ordinate liabilities' or a 'common obligation' to 'make good the one loss'. More recently, in BP Petroleum Development Ltd v Esso Petroleum Co Ltd the right to contribution was said to depend on whether the liability was 'of the same nature and to the same extent’. The notion of 'co-ordinate liability' is one that depends on common interest and common burden. Perhaps because, at common law, there was no general right of contribution between tortfeasors, the notion of 'co-ordinate liability' has not traditionally been expressed in terms requiring equal or comparable culpability or a requirement that the acts or omissions of the persons in question be of is equal or comparable causal significance to the loss in respect of which contribution is sought. However, the requirement that liability be 'of the same nature and to the same extent', as stated in BP Petroleum, is apt to include notions of equal or comparable culpability and equal or comparable causal significance. [17] Culpability, as a facto bearing on the right to equitable contribution, clearly explains the requirement that for there to be a S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 80 contribution between co-trustees, the co-trustees must be in pari delicto. So, too, it explains the rule that a person who has been guilty of fraud, illegality, willful misconduct or gross negligence is not entitled to contribution from his partners. “(Emphasis added.) [125] A common liability is liability that is of the same nature and of the same extent. In the instant case, Plaintiffs’ claim is for breaches of statutory and fiduciary duties and a restoration of the benefit that the Defendants had received. D1’s liability, if so found, will be damages and to restore the benefit he and his cohorts received. These liabilities are not shared by TP2: 125.1 The Plaintiffs are not claiming relief for which D1 and TP2 are commonly liable for.; 125.2 Significantly, a right to contribution only arises if D1 discharge more than his proportionate share of that liability in response to a common demand on a common liability. There is therefore no right to contribution in the instant case. No Obligation to Indemnify [126] Three (3) situations may give rise to a right to indemnity. They are from contract, whether express or implied, from an obligation resulting from the relation of the parties, or by statute. In Halsbury’s Laws of England, Volume 49 (5th Edition), paragraph 1257: “Rights of indemnity may arise from contract, express or implied, from an obligation resulting from the relation of the parties, or by statute. Whether in any particular case any right of indemnity arises, and the extent of any such S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 81 indemnity, will depend upon the terms of the contract or statute in question, or the nature of the relationship.” [127] None of these grounds are pleaded as a basis for D1’s claim of indemnity. I examine the relationship between D1 and TP2, to determine if such rights to indemnity arises in favour of D1. [128] The categories of relationships which are recognised by law or in equity to give rise to a right to an indemnity are succinctly set out by Lee Swee Seng JC’s (now JCA) in Sime Darby (supra) as follows: “[42] There are certain recognised relationships that by law or in equity, may give rise to a right to an indemnity. [43] As illustrated in Pinsler on Civil Practice in Singapore and Malaysia, Vol 2, Chapter XIII at para 43, an obligation to indemnify in law or equity may arise in the following circumstances: An agent may have the right of an indemnity against his principal in respect of his actions within the scope of his authority. A trustee may be entitled to an indemnity in respect of a breach of trust. A co- guarantor might be entitled to be indemnified by another co- guarantor. [44] Halsbury's Laws of England, (5th Ed), Vol 49, para 1260 at p 595 lists the following in regard to indemnities as incidents of legal relationships: A right of indemnity is an incident of certain legal relationships, for example those of agency or employer and employee, where an agent or employee is liable to be indemnified by his principal or employer against liabilities incurred in the reasonable performance of his agency or employment. Rights of indemnity may also arise under S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 82 principles of equity. In case of breach of trust a trustee may be indemnified out of the interest of a beneficiary who has instigated the breach or be entitled to contribution or indemnity from a co-trustee. A personal representative is entitled to be indemnified out of the estate for his proper expenses. A receiver is ordinarily entitled to be indemnified out of the assets against liabilities properly incurred by him. A director of a company regulated by the Companies Act 1985 is entitled to be indemnified by the company for all debts, expenses and liabilities incurred in the ordinary course of business, and for money borrowed and applied for those purposes. The trustees or committee of a club are not in general entitled to be indemnified by the members against liabilities incurred on behalf of the club.” [129] It was further expounded in the Privy Council decision of Eastern Shopping Company Limited v Quah Beng Kee [1924] AC 177 that a right to indemnity usually exists between parties where there is an obligation or duty upon one party to indemnify the other. Lord Wrenbury held, at pp.182-183: “A right to indemnity exists where the relation between the parties is such that either in law or in equity there is an obligation upon the one party to indemnify the other. There are, for instance, cases in which the state of circumstances is such that the law attaches a legal or equitable duty to indemnify arising from an assumed promise by a person to do that which, under the circumstances, he ought to do. The right to indemnity need not arise by contract; it may (to give other instances) arise by statute; it may arise upon the notion of a request made under circumstances from which the law implies that the common intention is that the party requested shall be indemnified by the party requesting him; it may arise (to use Lord Eldon's words in Waring v. Ward(1); a case of vendor and purchaser) in cases in which the Court will "independent of contract raise upon his (the purchaser's) conscience an obligation to indemnify the vendor against the personal obligation" of the S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 83 vendor. These considerations were all dealt with by the Lords Justices in Birmingham and District Land Co. v. London and North Western Ry. Co. (2)” [130] D1 has not pleaded any relationship which the law has recognised to have given rise to a right of indemnity in favour of D1’s against TP2. The Court of Appeal case of BPI International Finance Ltd (formerly known as Ayala Finance (HK) Ltd) v Tengku Abdullah Ibni Sultan Abu Bakar [2009] 4 MLJ 821 speaking through Sulaiman Daud JCA stated: “[23] From the authorities aforesaid, it can be seen that there are many ways in which a right of indemnity may arise. As such, in our view, in order to maintain a claim for indemnity as in the present case, the respondent not only has to plead that the appellant was in breach of its contractual duty or its duty of care to him but also the cause or causes of action for such an indemnity, ie whether founded on an express or implied contract, or on an implied indemnity arising from the relationship between the parties.” [131] As a director at the material time, TP2 also owe no duty to D1. As Abdul Malik Ishak JCA held in Dato' Abul Hasan bin Mohamed Rashid v Multi-Code Electronics Industries & Anor [2012] 5 MLJ 176, at [29]: “Directors owe their duties to the company and not to individual shareholders. In Percival v Wright [1902] 2 Ch 421, a case in point, concerned the directors who purchased shares from existing shareholders without disclosing that they were in the process of negotiating a takeover bid at a higher price. It was held that since the directors owed no fiduciary duties to the shareholders, they could not be liable for the non-disclosure. It must be emphasised that textbook writers have criticised the decision of this case. But the principle still stands: directors owe their duties to the company and not to individual shareholders.” S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 84 [132] It is therefore clear there is no nexus between D1 and TP2 which would bring them within the ambit of a legal relationships giving rise to a right to indemnity. [133] TP2’s submission that the third party claim is one of indemnity is as such, off the mark. As I see it, the third party claim is made O16 r 1 (b) and (c) ROC 2012. On the evidence adduced, the TP claim whether under 016 r 1 (b) or (c) is misconceived as TP2 was not privy to the wrong doings, it bears repetition that TP2 was not a director of the 2nd Plaintiff when the disposal of the 5th and 6th Defendants were carried out; TP2 could not have made any decision or sign any documents in respect of D5’s obtainment of the certificate of origin by D5; and TP2 was not a director of P2 when the 84 transactions were carried out. In short, TP2 was not privy to any of the wrongdoings alleged against D1. Fact that TP2 with others took over management of P2 for a 6 month’s period does not negate the wrong doings of D1. [134] The Ps did appoint 3 individuals to act on the Plaintiffs’ behalf as regards the Defendants’ wrongdoings and TP2 was not one of these individuals. Given P1 which is the holding company of P2, had lodged a report with the police and the Companies Commission of Malaysia of the wrongdoings around April 2019, there is no need for the Third Parties to make further complaints regarding the handover of P2’s management which was defective or incomplete. [135] As such, in para 15 (a) of D1’s SOC, to claim that if this court allows the Plaintiffs’ claim against D1, then TP2 and D2 ought to JOINTLY OR S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 85 SEVERALLY bear the same on the sole ground that TP2 did not raise any complaint in respect of the handover of the Plaintiffs’ management and documents by D1 and/or D3 is hopelessly misconceived. There is also no notice issued to co-defendant D2. As such, D1’s TP claim is dismissed with costs. Others [136] The Plaintiffs contended that D1, D3 and D4 have taken away the documents in respect of the business dealings of P1, P2, D5 and D6. Missing documents is not pleaded nor is a claim for the tort of conversion of the documents pleaded. No specific relief is sought for these missing documents. That ends the claim. Evaluation and assessment of the credibility of the witnesses [137] As “evidence” is not confined to documents and the Court is enjoined by s. 3 of the Evidence Act to consider oral statements by witnesses, the evaluation and assessment of the credibility (or otherwise), of the witnesses were crucial to the present case. In assessing credibility of the witnesses, I have taken note that credibility of a witness embraces not only the concept of his truthfulness i.e. whether the evidence of the witness is to be believed but also the objective reliability of the witness i.e. his ability to observe or remember facts and events about which the witness is giving evidence and this court must pay attention to a number of factors which, inter alia, include the following as exposited by Gillen J in Sean Thornton (a minor by his mother and next friend) v Northern Ireland Housing Executive [2010] NIQB 4: S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 86 (i) The inherent probability or improbability of representations of fact; (ii) The presence of independent evidence tending to corroborate or undermine any given statement of fact; (iii) The presence of contemporaneous records; (iv) The demeanour of witnesses e.g., does he equivocate in cross examination; (v) The frailty of the population at large in accurately recollecting and describing events in the distant past; (vi) Does the witness take refuge in wild speculation or uncorroborated allegations of fabrication; (vii) Does the witness have a motive for misleading the court; and (viii) Weigh up one witness against another [138] Sir George Farwell in the Privy Council case of Bombay Cotton Manufacturing Company v Motilal Shivlal ILR 1915 39 Bom 386, PC, in addressing the credit of a witness upon cross-examination, said that ‘it is most relevant in a case where everything depends on the judge’s belief or disbelief in the witness’ story.’ [139] In deciding the matter, I have preferred the evidence of the Plaintiffs’ witnesses whom I viewed as ‘more credible’ in support of the Plaintiffs’ contentions, as compared to the Defendants’ witnesses (except for S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 87 D2) whom I found ‘evasive’ when troubling questions were put to them, and were not credible at all. The Defendants’ witnesses’ evidence (except for D2) were riddled with contradictions and simply do not add up. Even if there were discrepancies in the Plaintiffs’ witnesses' evidence, if at all, were minor and not relevant, and on the whole, their evidence was comprehensive, compelling, convincing and consistent with the documents and the overall probabilities. In the context of the entirety of the evidence before the court, any lingering doubts that I have, I would resolve in favour of the Plaintiffs. [140] For the 1st question, my answer is in the affirmative, that the Plaintiffs have proven their case on a balance of probabilities as concerns D1. D2 is not liable whilst D3 had breached his contractual duties, breached the trust reposed in him as group accountant and committed fraud. [141] As for the 2nd question, the answer is in the affirmative. The Plaintiffs have suffered losses as a consequence of the D1’s breaches and dishonest assistance was rendered by D3 and D4. [142] As for the 3rd Question whether D1, D2 and D3 are liable to account and pay for the 84 transactions worth USD6,077,683.64 (equivalent to RM24,347,200.66 as at 20.7.2020), the answer is in the affirmative against D1 and D3. Exemplary/aggravated damages [143] In Khaw Cheng Poon & Ors v Khaw Cheng Bok & Ors and another appeal [2005] 6 MLJ 540; [2005] 3 CLJ 753, Gopal Sri Ram JCA (as he then was) delivering the judgment of the Court of Appeal said: S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 88 … Exemplary damages are only awarded in special circumstances. These circumstances are contained in the speech of Lord Devlin to which we have already referred, that no new categories are admissible to the Devlin list has now been settled in the decision of the House of Lords in Cassell & Co Ltd v Broome [1972] AC 1027. (Emphasis added.) [144] In Rookes v Barnard and others [1964] AC 1129, Lord Devlin stated unlike ordinary damages whose purpose is to compensate, that of exemplary damages is to punish and deter, and there are two categories of cases when it should be awarded, viz: (a) oppressive, arbitrary or unconstitutional action by the servants of Government; (b) the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff. [145] In Big Junkyard Sdn Bhd & Anor v Chan Kah Wai [2023] 1 CLJ 564 the court held: "[41] Thus, aggravated damages are given as additional compensation where there is injury to the feelings of the plaintiff that is caused by or exacerbated as a result of exceptional conduct of the defendant. The conduct must be high- handed or malicious act or an act done in an oppressive manner. Mere wrongful conduct is not sufficient. There must be something exceptional in the act that was done. The matter was lucidly stated by Lord Devlin in Rookes v Barnard [1964] AC 1129 at page 1232 as follows: S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 89 I doubt whether the facts disclosed in the summing up shows even a case for aggravated damages … present there seems to be no evidence that the Respondents were motivated by malevolence or spite against the appellant ... Again in so far as disclosed in the summing up there was no evidence of offensive conduct or of arrogance or insolence. (Emphasis added.) [42] ………there are two elements relevant to the availability of an award for aggravated damages: firstly, exceptional or contumelious conduct or motive on the part of the defendant in committing the wrong; secondly, intangible loss suffered as a result by the plaintiff, that is injury to feelings or personality. Based on the above principles, the facts of the case at hand does not make out a case for aggravated damages. There is nothing exceptional about the action of the second defendant. There is no evidence of offensive conduct or arrogance or insolence of motive or that the second defendant was motivated by malevolence or spite….." [146] Having regard to the facts and circumstances of the matter before me, it is my considered view that the conduct of the D1 and D3 here does not justify the award of exemplary damages against them. In my view their breach of fiduciary duties, indifference and acting in conflict of interest with their position as director and employee of the Plaintiffs were not so wanton and in contumelious disregard of the Plaintiffs’ rights. In the instant case, there is also no evidence that the D1 and D3 were motivated by malevolence or spite. For the aforesaid reasons, the Plaintiffs’ claim for exemplary and aggravated damages is disallowed. [147] For reasons given, the claim against the 2nd Defendant and D1’s claim against the 2nd Third party are dismissed, there will be judgment for the Plaintiffs together with interest at the rate of 5% per annum on all S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 90 monetary sums awarded from the date of the Judgment i.e., 14.11.2023 until full and final settlement; costs of this action in the sum of RM300,000 to be paid by the 1st Defendant and/or 3rd Defendant and/or the 4th Defendant or his legal representative jointly and/or severally to the Plaintiffs; the 1st Defendant shall pay the 2nd Third Party the sum of RM85,000.00 as costs of this action; the Plaintiffs shall jointly and/or severally pay the 2nd Defendant the sum of RM85,000.00 as costs of this action; all costs subject to allocator. Dated: 20th November 2023 - sgd - ………………………. Liza Chan Sow Keng Judge High Court of Malaya at Kuala Lumpur COUNSEL: For the Plaintiffs : Abdul Rashid Ismail (together with him, Nadia Jaidi) Messrs Rashid Zulkifli For the 1st & 3rd Defendants : Alfred Lai Choong Wui (together with him, Toh Mei Swan) Messrs Alfred Lai & Partners CASES CITED: Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697; [2017] 5 CLJ 418 Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61 S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 91 Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1 Board of Trustees of the Sabah Foundation & Ors v Datuk Syed Kechik bin Syed Mohamed & Anor [2008] 5 MLJ 469 Avel Consultants Sdn Bhd & Anor v Mohamed Zain Yusof & Ors [1985] 2 MLJ 209 Pioneer Haven Sdn Bhd v Ho Hup Construction Co Bhd & Anor and other appeals [2012] 3 MLJ 616 Taz Logistics Sdn Bhd v Taz Metals Sdn Bhd & Ors [2019] 3 MLJ 510; [2019] 2 CLJ 48 Petra Perdana Berhad v. Tengku Dato’ Ibrahim Petra Tengku Indra Petra & Ors [2014] 11 MLJ 1 Tengku Dato’ Ibrahim Petra Tengku Indra Petra v. Petra Perdana Berhad & Another Case [2018] 2 MLJ 177 Tindok Besar Estates Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 Carmarthenshire County Council v Y [2017] 4 WLR 136 Royal Brunei Airlines Sdn Bhd v Tan Kok Ming Philip [1995] 2 AC 378; [1995] 3 All ER 97; [1995] 3 WLR 64 Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751 Ktl Sdn Bhd Ktl Sdn Bhd v Leong Oow Lai [2014] MLJU 1405 Ng Pak Cheong v Global Insurance Co Sdn Bhd [1995] 1 CLJ 223; [1995] 1 MLJ 60; [1994] 3 AMR 2663 CGU Insurance Berhad v Asean Security Paper Mills Sdn Bhd [2006] 3 MLJ 1; [2006] 2 CLJ 409 Barnes v Addy (1874) L.R 9 Ch App 244 (Ch App) Twinsectra v Yardley [2002] 2 AC 164 S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 92 CIMB Bank Bhd v Maybank Trustees Bhd & Ors [2014] 3 MLJ 169 CIMB Bank Bhd (formerly known as Bumiputera Commerce Bank Bhd) v Sebang Gemilang Sdn Bhd & Anor [2018] 3 MLJ 689 Malaysian International Trading Sdn Bhd v RHB Bank Bhd [2016] MLJU 13 Re City Equitable Fire Assurance Co Ltd [1924] All ER Rep 485 AWA Ltd v Daniels Trading As Deloitte Haskins & Sells And Others (1992) 7 ACSR 759 Sime Darby Bhd & Ors v Dato' Seri Ahmad Zubair @ Ahmad Zubir bin Hj Murshid & Ors (Tun Musa Hitam & Ors, third parties) [2012] 9 MLJ 464 Eastern Shopping Company Limited v Quah Beng Kee [1924] AC 177 BPI International Finance Ltd (formerly known as Ayala Finance (HK) Ltd) v Tengku Abdullah Ibni Sultan Abu Bakar [2009] 4 MLJ 821 Dato' Abul Hasan bin Mohamed Rashid v Multi-Code Electronics Industries & Anor [2012] 5 MLJ 176 Khaw Cheng Poon & Ors v Khaw Cheng Bok & Ors and another appeal [2005] 6 MLJ 540; [2005] 3 CLJ 753 Rookes v Barnard and others [1964] AC 1129 Big Junkyard Sdn Bhd & Anor v Chan Kah Wai [2023] 1 CLJ 564 STATUTE/LEGISLATION REFERRED: Section 213, 214, 221, 218, 581 of the Companies Act 2016 Section 17 of the Contracts Act 1950 Section 3 Evidence Act 1950 Order 16 rule 1 (b) and (c) Rules of the Court 2012 S/N DXIFUnXocEq5Ilp3WUpjRQ **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

WA-22NCC-112-03/2022

PLAINTIF 1. ) LOOH KEO @ LOOH LIM TENG 2. ) LOOH CHAI BOON (Mendakwa sebagai wakil Plaintif Pertama) DEFENDAN 1. ) LOOH CHEE PENG 2. ) Loo Chee Peng 3. ) Looh Chee Wee 4. ) Looh Pik Loo 5. ) Looh Kit Siang 6. ) Looh Loo Yeok 7. ) PROSPELL ENTERPRISE SDN BHD 8. ) YOKE HOH SDN BHD 9. ) LOOH OIL REFINERY SDN BHD 10. ) MESTIKA CEMERLANG SDN BHD11. ) SIM LIM PLANTATIONS SDN BHD 1 2. ) PRIVILEGE VINTAGE SDN BHD1 3. ) GEORGETOWN SPECIALIST CENTRE SDN BHD1 4. ) GALAXY ATTRACTION SDN BHD

Companies and Corporations — Shares — Ownership of shares — Transfer of shares to 5 individual Defendants by illiterate Plaintiff father — Pre- existing relationship of trust and confidence — Whether Plaintiff had beneficial ownership of shares in companies — Trusts and Trustees — Characteristics of trust — Resulting Trust — Constructive trust — Importance of cross-examination — Case for award of exemplary damages made out

25/11/2023

YA Puan Liza Chan Sow Keng

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=0646c527-75bb-47dc-972c-4c1f383ccd55&Inline=true

1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) SUIT NO: WA-22NCC-112-03/2022 BETWEEN 1. LOOH KEO @ LOOH LIM TENG (NRIC No.: 420405-04-5225) 2. LOOH CHAI BOON (NRIC No.: 651019-05-5335) (Suing as P1’s attorney) … PLAINTIFFS AND 1. LOOH CHEE PENG (NRIC No.: 830122-10-5381) 2. LOOH CHEE WEE (NRIC No.: 810914-14-5885) 3. LOOH PIK LOO (NRIC No.: 820908-05-5364) 4. LOOH KIT SIANG (NRIC No.: 910426-14-5307) 5. LOOH LOO YEOK (NRIC No.: 850301-10-5668) 6. PROSPELL ENTERPRISE SDN BHD (Company No.: 199001010304 / 201874-U) 7. YOKE HOH SDN BHD (Company No.: 198201002536 / 82282-T) 8. LOOH OIL REFINERY SDN BHD (Company No.: 201301008946 / 1038788-M) 25/11/2023 19:36:23 WA-22NCC-112-03/2022 Kand. 382 S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 9. SIM LIM PLANTATONS SDN BHD (Company No.: 200701035071 / 793100-K) 10. MESTIKA CEMERLANG SDN BHD (Company No.: 199801006931 / 463058-P) 11. GALAXY ATTRACTION SDN BHD (Company No.: 200101001101 / 536857-K) 12. PRIVILEGE VINTAGE SDN BHD (Company No.: 201501043228 / 1168549-A) 13. GEORGETOWN SPECIALIST CENTRE SDN BHD (Company No.: 201601022775 / 1193714-M) 14. SEATEX PLANTATIONS SDN BHD (Company No.: 197901008221 / 52507-X) … DEFENDANTS GROUNDS OF JUDGMENT INTRODUCTION [1] This action is a family dispute where the octogenarian Plaintiff seeks the return of the shares in Companies presently registered in the names of his 5 youngest children, the 1st to 5th Defendants (“Individual Defendants”), which the Plaintiff claims are held on trust for him. Background [2] The backdrop of this case tells of a most remarkable feat of a self- made man, with only a standard one education by reason of poverty and circumstances, illiterate and unable to read in English and Malay, who S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 started working at 8 years old to help support his family, went on to build a substantial business empire and provided for his family. [3] The Plaintiff has 9 children by 3 wives. He is a traditional Hakka Chinese patriarch, an authoritative man who headed and directed both his immediate and extended family. In running the Plaintiff’s business, he was a man who expected obedience and he received it. He took responsibility for the entire family and was in turn respected by them. Dr Liong (PW8), the Plaintiff's youngest brother, explained it this way: “PW8: Let me be very clear again. Looh Lim Teng, my brother, told me "I am the owner of all these shares. When I ask you to assign to whichever nephew or make them the director, you please follow my instruction". So, I say "yes, brother, that is your share and you are my eldest brother. I follow instruction". That is the usual practice over the years. Can I add a bit? My family is a typical Hakka conventional family. We work on a very important concept called family governance. That means, we don't need contract. But by virtue of the fact he is my eldest brother and we respect him a lot, you can see over the years, all the brothers, sisters, we work tirelessly together with him. So we do not need contract. But we saw a man of honouring. That's why, when my brother asked me to do it, I will do it faithfully.” [4] 6 other family members of the Plaintiff testified to like effect comprising: Liong Kiu (PW5), the Plaintiff’s younger brother, Admund Looh (PW7), the Plaintiff’s eldest son), Desmond Looh (PW6), the Plaintiff’s 4th child; Lim Meow Fook (PW2,) Plaintiff’s brother-in-law; Lang Tuang Mauh (PW3), another of the Plaintiff’s brothers-in-law, Chan Chung Yen (PW4), the Plaintiff’s daughter-in-law (Michael Leong’s wife). S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 [5] The Individual Defendants are 5 out of 9 children of the Plaintiff. D3 is from the Plaintiff’s 2nd wife whilst D1, D2, D4 and D5 are from the Plaintiff’s 3rd wife. They were involved and had employment in the Plaintiff's business in its later years effective as follows: D1/Sampson Looh : 2008 D2/Bill Looh : 2004 D3/Carmen Looh : 2012 D4/Nathan Looh : 2011 D5/Shandy Looh : 2013 [6] At time of filing of action, the Plaintiff was 80 years of age and has had open-heart surgery in September 2020. He had to and still is undergoing dialysis on a weekly basis in Penang. [7] This action was filed as a result of the Individual Defendants’ refusal to cooperate when the Plaintiff sought to put his affairs and assets in order after his open heart surgery in September 2020. Assets built through the years of Plaintiff’s toil and efforts [8] By Bill Looh’s (DW2) own estimation, the assets of at least approximately 8700 acres of oil palm plantation land alone has a conservative value ranging between approximately RM261 million and RM348 million. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 Changes in share ownership and directorship after the individual defendants joined the Plaintiff’s business [9] The Individual Defendants presently in various combinations, control the 6th to 14th (except the 10th to 12th) Defendants at the Board and/or shareholder levels. [10] The changes in shareholding after the individual defendants joined at various times the Plaintiff’s business are: Date Company No. of Shares Percentage Sampson Looh (D1) 26.10.2007 Sim Lim Plantations Sdn Bhd 75,000 3.75% 14.04.2008 Mestika Cemerlang Sdn Bhd 1 50% 08.02.2013 Prospell Enterprise Sdn Bhd 1,000,000 50% 14.03.2013 Looh Oil Refinery Sdn Bhd 5,000 50% 08.07.2014 Prospell Enterprise Sdn Bhd 1,500,000 50% 16.02.2015 Looh Oil Refinery Sdn Bhd 50,000 1% 27.12.2016 Yoke Hoh Sdn Bhd 860,000 10% 17.01.2019 Georgetown Specialist Centre Sdn Bhd 510 51% Bill Looh (D2) 03.03.2008 Galaxy Attraction Sdn Bhd 500,000 50% 05.05.2008 Galaxy Attraction Sdn Bhd 1,900,000 50% 14.03.2013 Looh Oil Refinery Sdn Bhd 5,000 50% 02.09.2016 Privilege Vintage Sdn Bhd 10,000 1% S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 15.12.2016 Prospell Enterprise Sdn Bhd 25,000 0.5% 27.12.2016 Yoke Hoh Sdn Bhd 1,634,000 19% 23.01.2017 Prospell Enterprise Sdn Bhd 25,000 0.5% 17.01.2019 Georgetown Specialist Centre Sdn Bhd 200 20% 04.04.2019 Prospell Enterprise Sdn Bhd 450,000 9% 25.04.2019 Privilege Vintage Sdn Bhd 90,000 1% Carmen Looh (D3) 16.02.2015 Looh Oil Refinery Sdn Bhd 50,000 1% 02.09.2016 Privilege Vintage Sdn Bhd 10,000 1% 27.12.2016 Yoke Hoh Sdn Bhd 688,000 8% 19.12.2018 Georgetown Specialist Centre Sdn Bhd 490 49% 04.04.2019 Prospell Enterprise Sdn Bhd 500,000 10% 23.04.2019 Georgetown Specialist Centre Sdn Bhd 290 29% 25.04.2019 Privilege Vintage Sdn Bhd 90,000 1% Nathan Looh (D4) 02.09.2016 Privilege Vintage Sdn Bhd 10,000 1% 25.04.2019 Privilege Vintage Sdn Bhd 90,000 1% 27.12.2016 Yoke Hoh Sdn Bhd 688,000 8% Shandy Looh (D5) 02.09.2016 Privilege Vintage Sdn Bhd 10,000 1% 25.04.2019 Privilege Vintage Sdn Bhd 90,000 1% S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 27.12.2016 Yoke Hoh Sdn Bhd 430,001 5% [11] After the individual defendants joined the Plaintiff’s business, except for Shandy, the rest were appointed directors at various times as follows: Director Company Date of Appointment Sampson (D1) Prospell Enterprise Sdn Bhd 1.6.2012 Yoke Hoh Sdn Bhd 27.12.2016 Looh Oil Refinery Sdn Bhd 18.3.2013 Sim Lim Plantations Sdn Bhd 26.10.2007 Mestika Cemerlang Sdn Bhd - Galaxy Attraction Sdn Bhd - Privilege Vintage Sdn Bhd 19.11.2018 Georgetown Specialist Centre Sdn Bhd 22.1.2019 Seatex Plantations Sdn Bhd - Bill (D2) Prospell Enterprise Sdn Bhd 23.1.2017 Yoke Hoh Sdn Bhd 10.10.2006 Looh Oil Refinery Sdn Bhd 9.3.2020 Sim Lim Plantations Sdn Bhd - Mestika Cemerlang Sdn Bhd - Galaxy Attraction Sdn Bhd 24.12.2007 Privilege Vintage Sdn Bhd - Georgetown Specialist Centre Sdn Bhd 28.2.2019 Seatex Plantations Sdn Bhd 10.10.2006 Carmen (D3) Prospell Enterprise Sdn Bhd 11.4.2017 Yoke Hoh Sdn Bhd 27.12.2016 Looh Oil Refinery Sdn Bhd 18.7.2014 Sim Lim Plantations Sdn Bhd - Mestika Cemerlang Sdn Bhd - S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 Galaxy Attraction Sdn Bhd - Privilege Vintage Sdn Bhd - Georgetown Specialist Centre Sdn Bhd 17.4.2019 Seatex Plantations Sdn Bhd - Nathan (D4) Prospell Enterprise Sdn Bhd - Yoke Hoh Sdn Bhd - Looh Oil Refinery Sdn Bhd 9.3.2020 Sim Lim Plantations Sdn Bhd - Mestika Cemerlang Sdn Bhd - Galaxy Attraction Sdn Bhd - Privilege Vintage Sdn Bhd - Georgetown Specialist Centre Sdn Bhd - Seatex Plantations Sdn Bhd 4.7.2011 [12] The Individual Defendants, in various combinations, presently control the 6th to 14th (except the 10th to 12th) Defendants at the Board and/or shareholder levels. [13] It is not in dispute that the Plaintiff had a relationship of trust and confidence with the Individual Defendants, being his children and close kin. [14] In this case, the octogenarian Plaintiff claims that all the shares in the name of the Individual Defendants are held on trust. He never intended to give the shares to them. The Individual Defendants on the other hand claims that the Plaintiff has given away 70% of his wealth to them. [15] The amended defence in essence states that: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 15.1 the Plaintiff has never alleged that shares held in the Individual Defendants' names were beneficially owned by him or held on trust for him, 15.2 for the 7th Defendant (Yoke Hoh) only, the shares were transferred to the relevant Individual Defendants for their "contributions"; 15.3 a presumption of advancement / gift arises in relation to all the shares transferred to the Individual Defendants by or at the behest of the Plaintiff. [16] The parties’ respective claims were for the full beneficial interest of 70 % of his wealth, and nothing in between. Burden of proof [17] It is trite law that the Plaintiffs, have both the “burden of proof” to make out a prima facie case as well as the initial onus of proof to adduce evidence to prove their claim. The onus of proof would only shift to the Defendants if the Plaintiffs have made out a prima facie case. See for e.g., the Federal Court decision in Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697; [2017] 5 CLJ 418 where Jeffrey Tan FCJ held that: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 “[56] Thus a plaintiff has both the burden of proof as well as the initial onus of proof. In Britestone Pte Ltd v Smith & Associates Far East, Ltd [2007] 4 SLR 855, the Singapore Court of Appeal per VK Rajah JCA, delivering the judgment of the court, explained that at the start of the plaintiff’s case the burden of proof and the onus of proof coincide: … at the start of the plaintiff’s case, the legal burden of proving the existence of any relevant fact that the plaintiff must prove and the evidential burden of some (not inherently incredible) evidence of the existence of such fact coincide. Upon adduction of that evidence, the evidential burden shifts to the defendant, as the case may be, to adduce some evidence in rebuttal. If no evidence in rebuttal is adduced, the court may conclude from the evidence of the defendant. If, on the other hand, evidence in rebuttal is adduced, the evidential burden shifts back to the plaintiff. If, ultimately, the evidential burden comes to rest on the defendant, the legal burden of proof of the relevant fact would have been discharged by the plaintiff. The legal burden of proof — a permanent and enduring burden — does not shift. A party who has the legal burden of proof on any issue must discharge it throughout. Sometimes, the legal burden is spoken of, inaccurately, as ‘shifting’; but what is truly meant is that another issue has been engaged, on which the opposite party hears the legal burden of proof. [57] The rule is that ‘the onus of proof of any particular fact lies on the party who alleges it, not on him who denies it; et incumbit probation qui decit, non qui negat, Actori incibit probation … The plaintiff is bound in the first instance, to show a prima facie case, and if he leaves it imperfect, the court will not assist him. Hence the maxim Potior est condition defendantis. A plaintiff cannot obviously advantage himself by the weakness of the defence. A plaintiff’s case must stand or fall upon the evidence adduced by him. When, however, the defendant, or either litigant party, instead of denying what is alleged against S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 him, relies on some new matter which, if true, is an answer to it, the burden of proof changes sides; and he, in his turn, is bound to show a prima facie case at least and, if he leaves it imperfect, the court will not assist him. Reus excipendo fit actor’ (Woodroffe and Amir Ali, Vol 3 at pp 3190- 3191)..” [18] In the case of Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61, the Federal Court held: “Sections 101, 102, 103 and 106 of the Evidence Act 1950 deal with the burden of proof. Under s 101, it is provided that whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. Under s 102 the burden of proof lies on that person who would fail if no evidence at all were given on either side. Under s 103, the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Under s 106, when any fact is especially within the knowledge of any person the burden of proving that fact is upon him.” [19] In Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1, the Federal Court has pronounced the position of the law on the standard of proof on fraud in civil cases is that on balance of probabilities at para 49 of the judgment: “… that at law there are only two standards of proof. namely, beyond reasonable doubt for criminal cases “while it is on the balance of probabilities for civil cases. As such even if fraud is the subject in a civil claim the standard of proof is on the balance of probabilities. There is no third standard. ….” S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 The Principal Issue [20] In the tussle over the shares, the Plaintiff says that all the shares in the name of the Individual Defendants are held on trust and he never intended to give it to them but the Individual Defendants posit 70% of the Plaintiff’s wealth was given to them. This action thus raised squarely the question of whether as a matter of fact and law, there exists an express trust or a resulting trust. This pivots on the Plaintiff as transferor’s actual intention which is very fact sensitive. This intention can be direct evidence or inferred from all available evidence, including that of the Plaintiff’s conduct. [21] The Court of Appeal in ESPL (M) Sdn Bhd v Radio & General Engineering Sdn Bhd [2005] 2 MLJ 422 at [19], [24]; Ikumi Terada v Jemix Co Ltd & Ors And Another Appeal [2019] 1 LNS 881 at [38]; Pembinaan Lagenda Unggul Sdn Bhd v Geohan Sdn Bhd [2018] MLJU 196 at [96] & [97] pronounced to the effect that whether there is intention to create a trust can be determined from all the evidence before the Court. [22] If the merits are with the Plaintiff, then he will succeed otherwise his claim will be dismissed. The law on resulting and constructive trusts [23] As the subject matter involves a trust, it will thus be convenient to say a few words about the subject. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 [24] The Federal Court explained how trusts are created in Geh Cheng Hooi & Ors v Equipment Dynamics Sdn Bhd and other appeals [1991] 1 MLJ 293: "Trusts are either (i) express trusts, which are created expressly or impliedly by the actual terms of some instrument or declaration, or which by some enactment are expressly imposed on persons in relation to some property vested in them, whether or not they are already trustees of that property; or (ii) trusts arising by operation of law (other than express trust imposed by enactments) (see para 523 of 48 Halsbury's Laws of England (4th Ed)). Trusts arising by operation of law could be constructive and resulting trusts. Although we would agree with the view that a trust should not normally be imported into a commercial relationship, yet we would hold that in cases such as those involved in these appeals the court could and should consider the facts to determine whether a fiduciary relationship existed. We therefore agreed with Mr Wong that in the present cases we must consider the circumstances concerning the relationship between the parties. We were satisfied and agreed with the learned judge that in the circumstances agreements themselves do not contain an express clause that the proceeds of sale would be held on trust, as it is clearly manifested in the agreements and the correspondence concerned that it was the intention of the parties that the Emporium or its outlets as licensors should, after deduction of the fees and commissions agreed to be paid to them, make over to the concessionaires or consignors all payments by third customers. We also agreed with the learned judge and Mr Wong that the principle in Re Hallet's Estate should be applied to these cases and that the cash found in the tills of the various outlets and in the bank accounts as at 10 March 1987, are the subject matter of a trust or several trusts in favour of the concessionaires and consignors who can therefore trace the money there as well as to the proceeds of the sale to Inview Sdn Bhd.” S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 [25] Geh Cheng Hooi made clear that: 25.1 trusts can arise by operation of law, that is, either a resulting trust or constructive trust; 25.2 the court needs to consider the relationship between the parties to determine whether there is a trust; 25.3 it is not necessary to have an express clause with the word trust in it as long as the correspondence or agreement concerned manifest an intention to create a trust. [26] The Supreme Court in Yeong Ah Chee @ Yan Hon Wah v Lee Chong Hai & Anor & 13 Other Appeals [1994] 2 MLJ 614 at pg 624; [1994] 3 CLJ 20 at p 26, explained the 3 essential elements before a valid trust is said to exist: “The 3 essentials of a valid trust are (a), certainty of words (b), certainty of subject and (c) certainty of object.” [27] These 3 certainties were also discussed in Fawziah Holdings Sdn Bhd v Metramac Corporation Sdn Bhd & another Appeal [2006] 1 CLJ 996 where the Court of Appeal said: “[59] The law governing the certainty of a trust is that laid down by Lord Langdale MR in the seminal case of Knight v. Knight [1840] 49 ER 68. There it was held that for a trust to be certain three requirements must be fulfilled. First, there must be certainty of intention. Second there must be certainty of subject matter: both in terms of the corpus and the beneficial interest. Third, S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 there must be certainty of the objects of the trust. A trust is void if there is uncertainty in any of these three elements”. [28] A resulting trust gives effect to the parties implied or presumed intention. The Federal Court explained what is a resulting trust in Takako Sakao (P) v Ng Pek Yuen (P) & Anor [2009] 6 MLJ 751; [2010] 2 AMR 609 when referring to Westdeutsche Landesbank Girozentrale v Islington LBC [1996] AC 669 in the following words: "The device of a resulting trust was invented by the Court of Chancery to give effect to the implied intention of parties in relation to the acquisition and disposal of moveable or immovable property. Both types of resulting trust are traditionally regarded as examples of trusts giving effect to the common intention of the parties. A resulting trust is not imposed by law against the intentions of the trustee (as is a constructive trust) but gives effect to his presumed intention." [29] The oft-cited quote of Lord Browne-Wilkinson case of Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669, 708, explained the circumstances in which a resulting trust may arise as follows: “Under existing law a resulting trust arises in two sets of circumstances: (A) where A makes a voluntary payment to B or pays (wholly or in part) for the purchase of property which is vested either in B alone or in the joint names of A and B, there is a presumption that A did not intend to make a gift to B: the money or property is held on trust for A (if he is the sole provider of the money) or in the case of a joint purchase by A and B in shares proportionate to their contributions. It is important to stress that this is only a S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 presumption, which presumption is easily rebutted either by the counter- presumption of advancement or by direct evidence of A’s intention to make an outright transfer: see Underhill and Hayton pp. 317ff, Vandervell v. IRC [1967] 1 All ER 1 at 8,; [1967] 2 AC 291 at 312ff and Re Vandervell’s Trusts (No 2), White v. Vandervell Trustees Ltd [1974] 1 All ER 47 at 63ff,; [1974] Ch 269 at 288ff. … Both types of resulting trust are traditionally regarded as examples of trusts giving effect to the common intention of the parties. A resulting trust is not imposed by law against the intentions of the trustee (as is a constructive trust) but gives effect to his presumed intention…” (emphasis added) [30] The Court of Appeal case of in Goh Jui Leang v Tay Sing Hwa [2018] 1 LNS 828 cited with approval Lord Browne-Wilkinson’s dicta: “[38] A resulting trust is an implied trust by operation of law and is meant to restore or to jump back the equitable interest in property to its original beneficial owner. The nature is not based on the actual intention of the parties. However, it comes from the rising of presumed intention. Reference can be made in the case of Westdeutche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 where House of Lords sets out two situations: (i) Situation in which a person makes a contribution to the purchase price of property (ii) Situation in which the settlor has failed to explain the allocation of equitable interest in the property. [39] The case of Megarry J in Re Vandervell’s Trust [1974] Ch 269 suggested that there are two type of resulting trust: (i) Presumed resulting trust (ii) Automatic resulting trust S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 [40] A presumed resulting trust is made in or a transfer is made into the name of another person without any express trust being constituted. There is a presumption that the other holds property in question on resulting trust for the real purchaser or the transferor. In other words, it is created by implication as the result of a purchase in or transfer into the name of another.” (emphasis added) [31] In the case of Lin Ah Moy v Lee Cheng Hor & Anor [1970] 2 MLJ 99, the Federal Court held that inadequacy of consideration is evidence of the transferee holding the shares on resulting trust to the transferor: “…There was ample evidence for the learned trial judge to come to the conclusion that the transfers were made in trust. As regards the transfers of the 300 shares, which are the subject matter of this dispute, the learned trial judge, having seen and heard the witnesses, made a finding that there was no consideration for this transfer. Moreover, even assuming that there was consideration given by the appellant, surely inadequacy of the consideration, which was abundantly clear on the evidence, would be some evidence of a resulting trust. There can certainly be no question of a presumption of advancement in the case of a transfer from a brother to a brother or from a brother to his brother's wife. That, in our judgment, was a sufficient answer to the fifth ground of appeal that a transfer without consideration is incapable of establishing the existence of a resulting trust. It is exactly in those circumstances that the court must find a resulting trust in favour of the original transferor. It is true that a transfer without consideration creates a rebuttable presumption of a resulting trust. Was this presumption rebutted on the evidence? In our judgment, it was not. That disposed of the sixth ground of appeal.” S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 Constructive trust [32] In Takako Sakao supra, Gopal Sri Ram FCJ, one of Malaysia’s eminent jurists explained the concept and application of a constructive trust thus: [13] … Traditionally, courts have declined to provide a definition of a constructive trust. As Edmund Davies LJ said in Carl Zeiss Stiftung v Herbert Smith & Co [1969] 2 Ch 276 at p 300: English law provides no clear and all-embracing definition of a constructive trust. Its boundaries have been left perhaps deliberately vague, so as not to restrict the court by technicalities in deciding what the justice of a particular case may demand. But it appears that in this country unjust enrichment or other personal advantage is not a sine qua non. Thus in Nelson v Larholt [1948] 1 KB 339, it was not suggested that the defendant was himself one penny better off by changing an executor's cheques; yet, as he ought to have known of the executor's want of authority to draw them, he was held liable to refund the estate, both on the basis that he was a constructive trustee for the beneficiaries and on a claim for money had and received to their use. Nevertheless, the concept of unjust enrichment has its value as providing one example among many of what, for lack of a better phrase, I would call 'want of probity', a feature which recurs through and seems to connect all those cases drawn to the court's attention where a constructive trust has been held to exist. [14] In Paragon Finance plc v DB Thakerar & Co [1999] 1 All ER 400, Millett LJ (later Lord Millett) explained the concept of a constructive trust in terms that is difficult to improve: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 A constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of property (usually but not necessarily the legal estate) to assert his own beneficial interest in the property and deny the beneficial interest of another … [33] The Takako Sakao principle that that the constructive trusts arise by operation of law when unconscionable or wrongful conduct is demonstrated was cited with approval by subsequent cases of the Federal court such as: 33.1 Perbadanan Kemajuan Pertanian Selangor v JW Properties Sdn bhd [2017] 8 CLJ 392 at [58] and [59]: "[58] From decided case authorities it has been established as a principle of law that constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of the property (usually but not necessarily the legal owner) to assert his own beneficial interest in the property and deny the beneficial interest of another. (See the cases of (1) Takako Sakao v. Ng Pek Yuen & Anor. [2010] 1 CLJ 381; [2009] 6 MLJ 751 (FC) and (2) Vellasamy Pennusamy & Ors. v. Gurbachan Singh Bagawan Singh & Ors. [2012] 2 CLJ 712; [2010] 5 MLJ 437 (CA)). [59] It has also been held that a 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. (See the case of Hassan Kadir & Ors. v. Mohamed Moidu Mohamed & Anor. [2011] 5 CLJ 136 (FC)). A constructive trust is a remedial device that is employed to prevent S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 unjust enrichment. It has the effect of taking the title to the property from one person whose title unjustly enriches him, and transferring it to another who has been unjustly deprived of it. (See the case of Tay Choo Foo v. Tengku Mohd Saad Tengku Mansur & Ors. And Another Appeal [2009] 2 CLJ 363; [2009] 1 MLJ 289 CA)." 33.2 In Datuk M Kayveas v See Hong Chen & Sons Sdn Bhd & Ors [2014] 4 MLJ 64, the Federal Court elucidated: “[32] A trust is an obligation enforceable in equity, which rests on a person as owner of some property, for the benefit of another or for the advancement of certain purposes (Principles of the Law of Trusts by HAJ Ford and WA Lee). As distinct to a trust for a purpose, a beneficial owner may enforce it by a suit as in the current case. Equity, which was historically dispensed by the Chancery Court, and against his person (i.e. in personam) now compels the trustee to administer the trust in accordance with his conscience, with even a possible sanction of imprisonment until he has made good the loss caused to the trust property. On the issue of restitution, Lord Denning MR in Hussey v Palmer [1972] 3 All ER 744 had occasion to say at p 747: Although the plaintiff alleged that there was a resulting trust, I should have thought that the trust in this case, if there was one, was more in the nature of a constructive trust … By whatever name it is described, it is a trust imposed by law whenever justice and good conscience require it. It is a liberal process, founded on large principles of equity, to be applied in cases where the defendant cannot conscientiously keep the property for himself alone, but ought to allow another to have the property or a share in it. The trust may arise at the outset when the property is acquired, or later on, as the circumstances may require. It is an equitable remedy by which the court can enable an aggrieved party to obtain restitution. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 [38] From the various opinions above it may be construed that a constructive trust arises by operation of law irrespective of the intention of the parties, in circumstances where the trustee acquires property for the benefit of the beneficiary, and making it unconscionable for him to assert his own beneficial interest in the property and deny the beneficial interest of another. Being bereft of any beneficial interest, and with equity fastened upon his conscience, he cannot transfer any interest to himself let alone a third party. If he does, then a constructive trust comes into existence. An aggrieved party, by equitable remedy, may demand restitution of the property if he has been deprived of his beneficial interest.” (emphasis added) 33.3 Recently in Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67: [111] It is trite law that the intention to create a trust is applicable in situation of express trusts and not in constructive trusts. A constructive trust are trusts that may be implied in the absence of any declaration/intention of a trust, where the trustee has induced another to act to their detriment they would acquire a beneficial interest in the land/property. A characteristic feature of this trust does not owe its existence to the parties’ intention, but by operation of law. In Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751, it was held that: A constructive trust is imposed by law irrespective of the intention of the parties. And it is imposed only in certain circumstances, e.g. where there is dishonest, unconscionable or fraudulent conduct in the acquisition of property. What equity S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 does in those circumstances is to fasten upon the conscience of the holder of the property a trust in favour of another in respect of the whole or part thereof. [112] Constructive trust is viewed as a device under which equity will intervene so as to create a trust relationship between the parties in order to make a person accountable for the trust to prevent any unfairness or injustice. Equity will impose obligation on the defendant to hold the property for the benefit of another. [34] Bogert on Trusts 6th Edition, page 287, Sec. 77 states: “Constructive trusts do not arise because of the expressed intent of a settlor. They are not “intent-enforcing” trusts, but in a general way may be called “fraud-rectifying” trusts, if the word “fraud” is used in the sense of any kind of wrongdoing and not confined to an intentional false representation. It would seem preferable to treat these trusts as created by courts of equity, rather than to regard them as being brought into being as a result of acts of the parties. Whenever equity finds that one has title to property, real or personal, originally acquired by any kind of wrongdoing or, although innocently obtained, now held under such circumstances that retention of the title will result in unjust enrichment, equity may declare such title-holder to be the trustee of a trust constructed by it for the purpose of working out justice, which is merely a convenient means of remedying a wrong. It is not a trust in which the trustee is to have duties of administration lasting for an appreciable period of time, but rather a passive, temporary trust, in which the trustee’s sole duty is to transfer the title and possession to the beneficiary. The decree establishing the constructive trust amounts to a holding that the defendant ought to be treated as if he had been a trustee for the plaintiff from the time the defendant began to hold the property unconscionably. The S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 constructive trust does not exist merely because of the wrongful holding, but requires a court decree for its origin and this decree is retroactive in effect to the date when the unlawful holding began.” [35] The following excerpt from Halsbury's cited in Tay Choo Foo v Tengku Mohd Saad Tengku Mansur & Ors And Another Appeal 2009] 1 MLJ 289; [2009] 2 CLJ 363 sums up the concept and application of constructive trusts: [93] On constructive trusts, Halsbury’s Laws of England (4th Ed - Reissue) Vol 48 at pp 301–306 reads as follows: Nature of constructive trust. A constructive trust attaches by law to specific property which is neither expressly subject to any trusts nor subject to a resulting trust but which is held by a person in circumstances where it would be inequitable to allow him to assert full beneficial ownership of the property. Such a person will often hold other property in a fiduciary capacity and it will be by virtue of his ownership of or dealings with that fiduciary property that he acquired the specific property subject to the constructive trust. A stranger who receives property in circumstances where he has actual or constructive notice that it is trust property being transferred to him in breach of trust will, however, also be a constructive trustee of that property. A person who holds property on a constructive trust is a constructive trustee in respect of it. He cannot claim for himself any increase in value of the property or any profits earned by it. If he becomes bankrupt, the property is not available for his general creditors but for the beneficiaries in whose favour the constructive trust subsists." S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 Analysis and findings [36] I now turn to the evidence. I should at the outset state that the Individual Defendants’ assertion at paragraph 3.105 of their post trial submissions that prior to CS Hee & Co’s letter dated 1.3.2022, the Plaintiff never claimed the shares were held on trust for him is not true. Firstly, it is clear from the transcript of the Hospital recording on 10.12.2020 read as a whole for context, that the Plaintiff has asserted the shares are held on trust. The Plaintiff had also asserted that the 70% shares in Prospell in the names of Sampson Looh, Bill Looh and Carmen Looh were meant for the “11 people”. Secondly, the Individual Defendant’s said assertion is also contradicted by Q& A 52 – Nathan’s Main Witness Statement; Q& A 99 – Carmen’s Main Witness Statement; Q& A 92 – Bill’ s Main Witness Statement that on 25.12.2021, during the family Memorial Day (interchangeably “Bahau Meeting”), the Plaintiff had demanded that Carmen, Bill and Nathan return their shares and acknowledge in writing they are his trustees of his shares. [37] To establish a resulting trust, the Plaintiff will need to show that the Individual Defendants did not pay for the shares transferred or allotted to them, and that he had no intention of gifting the shares to the Individual Defendants which the Individual Defendants rely on as proof that the Plaintiff had no such intention. [38] In Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751, where Gopal Sri Ram FCJ held: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 [17] When A purchases Blackacre in B's name, providing, let us say, the whole of the purchase price, equity presumes that the common intention of the parties is for B to hold Blackacre on a trust that results to A. This is referred to as a presumed resulting trust. That a trust should result to A is fair and just because A provided all the money and B provided nothing. But if A is B's husband, parent or guardian or otherwise stands in loco parentis to B, then equity presumes that the common intention of the parties is to make a gift of Blackacre to B. This is referred to as the presumption of advancement. However, as the Court of Appeal pointed out in Heng Gek Kiau v Goh Koon Suan [2007] 6 CLJ 626 the correct approach to cases where a gift is asserted is: … for a court first to determine the true intention of the purchaser. The question whether the purchaser in a particular case had a donative intention is to be determined objectively through a meticulous examination of the facts and evidence of the surrounding circumstances. If after such an examination the court concludes that there was a donative intention on the part of the purchaser that is the end of the matter and there is no room for the operation of the presumption of resulting trust or advancement as the case may be. It is only where there are no or insufficient facts or evidence from which a fair inference of intention may be drawn that a court should turn to presumptions as a last resort to resolve the dispute. In arriving at this conclusion the Court of Appeal in that case applied with approval the following passage in the judgment of Gabriel Moss QC (sitting as a Deputy High Court judge) in Kyriakides v Pippas [2004] EWHC 646 (Ch) which we also regard as being good law: Where there is no declaration (of intention), the court puts itself in the position of a jury and considers all the circumstances of the case, so as to arrive at the purchaser's real intention: Snell paras 9–15. It is only where there is no evidence to contradict the S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 presumption that it will prevail: ibid. The case law has developed in such a way that even 'comparatively slight evidence' will rebut the presumption and a 'less rigid approach should also be adopted to the admissibility of evidence to rebut the presumption of advancement': Lavelle v Lavelle [2004] EWCA Civ 223 (CA) per Lord Phillips MR at para 17. I suspect the position we have now reached is that the courts will always strive to work out the real intention of the purchaser and will only give effect to the presumptions of resulting trust and advancement where the intention cannot be fathomed and a 'long-stop' or 'default' solution is needed. [39] I take note that the Individual Defendants have relied on the presumption of advancement arising out of the close relationship of father and children. The presumption of advancement no doubt gave the Individual Defendants as recipient of the shares an advantage which, if not negated, will operate to form the basis of proof. However, this was not a case where the parties were not present to give evidence of their intentions. In this significant aspect, I agree that the presumption of advancement only comes into play if the Plaintiff’s intention cannot be discerned from the evidence and the authorities cited by the parties are to be distinguished in this respect. The Plaintiff here although elderly, sickly and testified from hospital numerous days and in the course of trial, had his legs amputated, has the mental faculties or clarity of mind to provide the court with useful evidence of his intentions and personal knowledge. He had defended the presumption of advancement on the basis that he was still competent to testify as to his intentions regarding the transfer which was to create a trust or to retain the S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 beneficial interest in the shares of his companies. Unless supported by objective evidence, the presumption of advancement will not be given greater weight. [40] In assessing the Plaintiff’s evidence, I will at the outset declare that I agree with the Plaintiff’s counsel that more latitude should be given to vulnerable witnesses with medical conditions such as the Plaintiff, especially when evidence was being given through a translator - see Zung Zang Wood Products Sdn Bhd & Ors v Kwan Chee Hang Sdn Bhd & Ors [2012] 5 MLJ 319, where the Court of Appeal made the following observation about a similarly elderly and infirm witness: [59] We note, as the JC has noted, that the father was 81 years old at the time of the trial. He was frail looking and sickly. He attended each and every sitting of the trial to complete his evidence. Being the founder of the family business, he brought Mathew into the family business. He gave Mathew an overseas education and credited him with a Master's degree in Business Administration, besides substantial shares in the family business. He appointed Mathew to manage all the family companies. The JC also observed the father's demeanour, anger, disappointment and bitterness at being cheated by Mathew. He found the father to be honest and straightforward witness, albeit a bit inconsistent due to his memory lapse, confusion, old age and ill health. There was no reason for the father to lie at all, especially at his advanced age and poor health. Plaintiff’s evidence [41] The Plaintiff, as a traditional Hakka man, is a firm believer in certain core values which he tried to impart to his children. These values included S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 unity within the family, fairness, equality, and the preservation of wealth. All the Individual Defendants agreed that they too believed in these values. The Plaintiff's vision and fervent wish was for his assets, which he accumulated over 50 years, to be passed down through the generations for at least 50 years. The thought of breaking up his assets for distribution was odious to him. Witness statement PW1A 70. Q: Could you please tell this Honourable Court your family values? A: 70.1 First and foremost, I value unity within my family. I do not like my family to be divisive. 70.3 Due to my values and belief in family unity, I never intended to divide my assets. I am mindful that for a family with multiple wives and children, a division of assets is akin to a division of the family. This happens to a lot of the tycoons. I do not want that to happen to my family. Also, it is “pantang” (against my superstitious belief) to talk about division of my assets during my lifetime. 70.4 I am also mindful that having 3 wives and our respective children, I in fact have 3 families. I have strived and endeavoured to treat all my children in my 3 families equally and fairly to promote unity amongst them all. For instance, I took all of my children into my companies. I believe that by treating everyone equally, there will be less chance for disputes. They will be able to stay united and preserve the family wealth. 70.5 I have also imparted the values of fairness and equality in my children. In this regard, I often reminded Ah Wen, as my eldest son, to set an example by practising fairness and equality in his dealings with his siblings. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 70.6 I have a vision of having my wealth preserved and lasting for generations of my family, that is for 50 years with an option to extend for another 50 years. It is my wish that the welfare and interest of generations of my family (including education) will continue to be provided for and supported even after I am gone, just like how I have continuously provided for and supported my parents, my siblings, my wives and my children. I also believe in giving back to society, hence I wish to also contribute to charity using my assets. 70.7 I know this is a challenge given the Chinese saying that the wealth and/or legacy built by the 1st generation does not last past the 3rd generation. As such, I have sought and strived to ensure that my wealth and legacy would sustain and endure within the Looh family by a fair distribution of my wealth amongst my family members. I believe that fair treatment will promote unity and harmony amongst my family members, which can in turn can promote enduring prosperity. [42] These values of fairness, equality, unity, preservation of wealth imparted by their father the Plaintiff was candidly admitted by Sampson and Carmen Looh during cross-examintaion and both further testified they each believe in those values. [43] The Plaintiff testified that he personally acquired and funded the acquisition of all the substantial assets associated with his empire, which began in around the 1970’s. This was not challenged during cross- examination of the Plaintiff. Sampson Looh (DW1), Bill Looh (DW2) and Nathan Looh (DW4) confirmed that no substantial assets have been added to the Plaintiff’s empire by the Individual Defendants. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 [44] P also testified that he was the boss in the family business, he was the primary decision maker; he made all of the major decisions, including the acquisition of lands and properties and the price thereof, the acceptance of any financing, the charging of his assets or his companies’ assets to the financiers, fixing of salaries of the management personnel, and more. Particularly when it comes to any financial matters, he is the one calling the shots. He brought his family members into his companies, including his younger brothers, brother in laws and children because he trusted them to build his business empire with him. He testified that he brought his children into the family business to train them and provide them a living whilst they gained experience and contacts. He did this for each of his children, and if they left the family business to start their own ventures, he was happy for them and wished them well. Shares that were in their names were transferred back to the Plaintiff or his nominated transferee whenever required by the Plaintiff. [45] He adduced evidence to show due to his illiteracy and lack of formal education, he was required to rely on and trust, those who assisted him in his work and business dealings and was, in this sense, vulnerable. These trusted persons were mainly the Plaintiff's family members, although there were also several individuals, not of the family, who he relied on to get work done. These included, the late Tun Ninam Shah, a friend of the Plaintiff’s; Noorazman, his employee; and Wong Nam, his estate manager.: 21. Q: That brings us to the 1990s. Could you tell this Honourable Court more about your other business ventures in the 1990s? S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 A: 21.3 I recall having placed some of my trusted employees and friends in Prospell since the beginning of Prospell to either hold shares or directorships or both on my behalf. Such persons include, for instance:- i. the late Tun Ninam Shah, who was my friend; ii. Noorazman, who helped me to liaise with the Selangor State Government at that time; and iii. Wong Nam, who was my estate manager based in Bahau at that time and had been working for me since my 30s. He is my 1 st ever estate manager. [46] It is not in dispute that the Individual Defendants were involved and had employment in the Plaintiff's business in its later years, beginning with Bill Looh (DW2) in 2004. It is also not in dispute that the Plaintiff had a relationship of trust and confidence with the Individual Defendants, being his children and thus, close kin: 46.1 Under cross-examination: LR Can I refer you to ID85, Dato’, page 8? This is a members’ written resolution of Yoke Hoh dated 23.6.2017. Can we go to the body of the resolution, Dato’? Can I put it to you this resolution shows Ah Peng, Ah Wei, Pik Loo, Jit Siang and Loo Yi, as shareholders of Yoke Hoh, approved, amongst others, the execution of a 3 rd Party charge by Yoke Hoh in favour of Bank Pertanian Malaysia Berhad for banking facilities granted to Prospell. PW1 If the signing is for the use of the estate, then the signing and all, it was only me, Ah Hoi and Ah Peng only. If there is S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 going to be any signing, I should be the one who signing as a chairman. How to believe them? They only taking salaries from me, you think lah. Because last time, they said they can do it online, can go online. And then I said can do online. TRANSL Then witness said – PW1 Last time asked me to come and sign – TRANSL And then witness said – PW1 I also don’t know. I wouldn’t be giving to them. Because now for signing, now you ask me to come and sign, so the best, my lawyer has to be in there, then only I know what is he telling me to sign. Last time was different, I trusted my son and daughter. Now, everything must let the lawyer see first. Then only I can understand and then lawyer ask me to sign, then I sign. 46.2 In his witness statement WSPW1A: 57. Q: What were the considerations which you took into account in deciding who to name as the registered directors and shareholders in your companies? A: 57.1 The primary consideration is trust and loyalty. I would only name myself or persons whom I trusted at that time as the registered directors and shareholders in my companies. For instance, my wives, my siblings and in laws, my children and some of my loyal employees. 59. Q: Why does it not matter to you who are the named directors and shareholders of your companies? S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 A: 59.1 This is because it is known that the shares in the companies are mine. The named directors and shareholders of my companies were or are nominal only. They were or are merely there to represent me and they hold shares for my benefit. 59.2 Further, these persons would be persons whom I trusted at that time and would do what I instruct them to do. 60. Q: How would such named directors and shareholders of your companies know that they were or are nominal only? A: 60.1 I would have told them personally or through whoever that was handling the paperwork in respect of naming of registered directors and shareholders that these companies are mine. The fact that the companies are mine is obvious because:- i. I paid for everything in my companies; ii. I was the ultimate decision maker; and iii. such named shareholders did not pay for any shares registered in their names. 60.3 Further, I never told any of such named directors and shareholders that I gave them the shares in my companies as gifts. Everyone in my family knows that I am against the idea of dividing my assets, and I have previously mentioned that there will not be division or gifting of assets unless I expressly say so. As such, such named directors and shareholders would know that they were and are merely nominal. 60.4 In addition, if I truly intended to give the shares to such named shareholders as a gift instead of on a nominal basis, I would have mentioned it to my family. For example, I gifted 8 S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 shop lots in Taman Pelating, Bahau to some of my family members, including my wives, my siblings and my children. I mentioned this openly to my family members and many are aware of this. 62. Q: Why do you not deemed such documents in writing to be necessary for your family members? A: 62.1 All this while until the filing of this suit, all the named directors and shareholders of my companies who are my family members recognised that the companies are mine, and that they were or are merely representing me and holding shares for my benefit. They have been carrying out my instructions for decades without any issue. Essentially, I operated based on trust and belief. This is known to all. After all, they are my family members. Hence, I did not see any need to draw up any documents in writing before this. 46.3 Witness statement PW1B: 14. Q: Please refer to answer 56.1 of your Earlier Witness Statement where you mentioned that you decided and have control over who to name as the registered shareholders in your companies. Who decided on the shareholding of the registered shareholders? A: 14.1 I also decided and controlled the percentage of shares to put in the name of the registered shareholders. This has been my practice until sometime after Ah Peng started working in my companies, where I left it to Ah Peng to decide the percentage of shares to put in the names of the registered shareholders and to S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 report to me after he decided on the shareholding, because I trusted Ah Peng at that time. 14.2 2 I also trusted that Ah Peng would report to me of the decision he made on the percentage of shares as I have told him to so report. Further, Ah Peng knew full well of my practice in having nominees to hold shares on my behalf so I trusted that he would decide the shareholding of the nominees properly. In fact, Ah Peng once told me that he would act in the best interests of me and my family as he knew that the shares in his name was for the benefit of me as his beloved father and the family as a whole 46.4 In cross-examination, Sampson Looh (DW1) admitted: GS Right. Now, taking all of that into consideration, up until you have fallen out with your father, would it be fair to say that you trusted him? DW1 Yes. GS Yes, and would you say that he also trusted you? DW1 Yes. 46.5 His older brother, Bill Looh (DW2) also accepted: RL And would it be a fair statement to say that at least before this dispute started, your father trusted you? DW2 Yes. 46.6 Their half-sister, Carmen Looh (DW6) agreed: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 36 GS And would you say, and would you accept that he had trust in you? DW6 Yes. 46.7 Their sister, Shandy Looh (DW3) agreed: RL I’m going to suggest to you, as father and daughter, you have a special relationship with your father. Therefore, you owe him a duty to explain things to him properly. DW3 Yes, I do owe him explanation 46.8 Their youngest brother, Nathan Looh (DW4) recognised the special relationship although he disagreed as to the duty that came with it: RL It’s one question. Never mind, you say two. So, you agree that you have a special relationship with your father, being father and son? DW4 Yes. RL Because of that special relationship, I’m going to suggest to you that you owe him a duty to explain things to him properly. DW4 Duty to explain things? I don’t think so. RL And also because of that special relationship, you owe your father a duty to also explain to him properly all documents which he signs. DW4 I disagree. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 37 [47] That the Plaintiff was in control and the decision maker in the companies was unshaken during cross-examination and 7 of his family members PW2 to pW8, who at various times were either employed by the Plaintiff or held shares and directorships at the Plaintiff’s behest, gave consistent evidence that that the shares they had in the Plaintiff's companies were at all times held on trust for him. he is the boss and they follow his instructions. and each of them who had been a shareholder returned the shares when asked to by the Plaintiff; if they had been directors, they resigned at his request. The family members other than the 5 individual Defs who had been shareholders and directors in the P’s companies included: 47.1 Liong Kiu and Dr Liong, the Plaintiff’s brothers; 47.2 Lang Tuang Mauh and Lim Meow Fook, the Plaintiff’s brothers-in-law; 47.3 Admund Looh (PW7, Michael Leong, Jenny Looh, and Desmond Looh, the Plaintiff’s children from the 1st and 2nd families; and 47.4 Chan Chung Yen, the Plaintiff’s daughter-in-law. [48] Notably, some of these family members individuals including Admund Looh (PW7), Michael Leong, Dr Liong (PW8), Desmond Looh (PW6), Chin Yew Lian (the Plaintiff's second wife and Carmen Looh's mother and some who were not including the late Tan Peck Soo, who was the General Manager of the Plaintiff's group of companies also became S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 38 guarantors for loans that the companies took, yet none of them asserted ownership or management rights. Chan Chung Yen (PW4), Liong Kiu (PW5) and Desmond Looh (PW6) for instance in evidence, testified when asked to do so by the Plaintiff, the transfers they effected for shares held in their names was because the Plaintiff was the true and beneficial owner of the shares. Dr Liong, Tan Peck Soo and Admund Looh also became guarantors for loans taken by the companies without becoming shareholders in their own right in those companies. None of these family members paid for the shares nor received any consideration when they returned or transferred the shares to another at the Plaintiff's behest. [49] It is common ground that the 5 Individual Defendants and the Corporate Defendants also paid nothing for the transfers and allotments of shares to their names. Their evidence when analysed made it manifestly clear that they too took instructions from the Plaintiff, although when it suited them, they would say that matters were discussed with their father before decisions were made. [50] As to why there is no evidence of a written trust deed with any of his family members, the Plaintiff testified: 62. Q: Why do you not deemed such documents in writing to be necessary for your family members? A: 62.1 All this while until the filing of this suit, all the named directors and shareholders of my companies who are my family members recognised that the companies are mine, and that they were or are merely representing me and holding shares for my benefit. They have been S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 39 carrying out my instructions for decades without any issue. Essentially, I operated based on trust and belief. This is known to all. After all, they are my family members. Hence, I did not see any need to draw up any documents in writing before this. 62.2 To elaborate, I had always conducted my business and affairs in a very traditional manner, whereby everyone would have to obey my instructions. In fact, no one has ever questioned or disobeyed my instructions. A lot of times, all I had to do was just give instructions, be it in person or via phone calls, and matters will be sorted out per my instructions. To illustrate, I used to ask my brothers in law to sign documents in Kuala Lumpur. They complied and immediately travelled from Bahau to Kuala Lumpur to sign per my instructions and without any question. [51] Having looked at the matter entirely, considered the copious documents and the totality of the evidence, and having carefully considered the submissions of the parties, and giving due regard to P’s explanation I find the P’s evidence on why it was not necessary to record the nominee arrangement with the Individual Defendants , was not credibly challenged in cross-examination. Thus, P’s evidence ought to be accepted — see Soon Peng Yam & Anor v Bank of Tokyo-Mitsubishi (Malaysia) Bhd [2004] 2 MLJ 31; [2004] 1 CLJ 532 and Ayoromi Helen v Public Prosecutor [2005] 1 MLJ 699; [2005] 1 CLJ 1, where in the later case, the Court of Appeal held that: Failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness’s testimony. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 40 [52] In any event, the Plaintiff’s evidence as to why no nominee arrangement with the Individual Defendants were recorded is not inherently improbable, and I accept his evidence. I feel confident to found my conclusion on his evidence because they are his children; there was no basis not to trust them before the shares were transferred to them. There is also consistency as with other family members before these Individual Defendants joined the business and were registered as shareholders. In this regard, in assessing the facts in issue on the basis of their ‘inherent probability or improbability’ I have taken heed of amongst others, the elucidations in: 52.1 Md Zainudin bin Raujan v Public Prosecutor [2013] 3 MLJ 773 FC: [33] It is trite that the inherent probability or improbability of a fact in issue must be the prime consideration in deciding whether a witness is credible or not. It is the duty of the court to sieve the evidence and to ascertain what are the parts of the evidence tending to incriminate the accused which he accepted. In Public Prosecutor v Dato’ Seri Anwar bin Ibrahim (No 3) [1999] 2 MLJ 1 at p 79 Augustine Paul J (as he then was) summed up the tests for determining the credibility of a witness as follows: The Privy Council has stated that the real tests for either accepting or rejecting the evidence of a witness are how consistent the story is with itself, how it stands the test of cross-examination, and how far it fits in with the rest of the evidence and the circumstances of the case (see Bhojraj v Sitaram 1936 AIR PC 60). … It must, however, be observed that being unshaken in cross-examination is S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 41 not per se an all — sufficient acid test of credibility. The inherent probability or improbability of a fact in issue must be the prime consideration (see Muniandy & Ors v Public Prosecutor [1966] 1 MLJ 257). It has been held that if a witness demonstrably tells lies, his evidence must be looked upon with suspicion and treated with caution, but to say that it should be entirely rejected would be to go too far (see Khoon Chye Hin v Public Prosecutor [1961] 1 MLJ 105). It has also been held that discrepancies and contradictions there will always be in a case. In considering them, what the cour t has to decide is whether they are of such a nature as to discredit the witness entirely and render the whole of his evidence wor thless and untrustworthy (see De Silva v Public Prosecutor [1964] 1 MLJ 81). The Indian Supreme Court has pointed out that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments (see Ugar v State of Bihar 1965 AIR SC 277). It is useful to refer to Public Prosecutor v Datuk Haji H arun bin Haji Idris (No 2) [1977] 1 MLJ 15 where Raja Azlan Shah FJ (as His Highness then was) said at p 19: In my opinion, discrepancies there will always be, because in the circumstances in which the events happened, every witness does not remember the same thing and he does not remember accurately every single thing that happened... The question is whether the existence of certain discrepancies is sufficient to destroy their credibility. There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A court is fully competent, for good and cogent reasons, to accept one part of the testimony of a witness and to reject the other. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 42 In the absence of any contradiction, however, and in the absence of any element of inherent improbability, the evidence of any witness, whether a police witness or not, who gives evidence on affirmation, should normally be accepted (see Public Prosecutor v Mohamed Ali [1962] 1 MLJ 257). (Emphasis added) 52.2 CGU Insurance Bhd v Asean Security Paper Mills Sdn Bhd [2006] 3 MLJ 1; [2006] 2 CLJ 409 (CA) per Gopal Sri Ram JCA (as His Lordship then was): “[53] In our judgment, the correct approach to the judicial assessment of evidence in a case where a witness has been contradicted by his or her previous inconsistent statement is to treat the whole of the evidence of that witness with caution. But the judge must consider and accept or reject, for good reasons, the explanation given by the witness for the inconsistency. He may accept the whole or parts of the witness' evidence as inspires confidence in him as having a ring of truth for one or more reasons. For example, the evidence in question or parts of it may be consistent with the probabilities of the case or with other irrefragable evidence. Or the judge may, after paying careful attention to the demeanour of the witness, feel assured that his evidence in court is consistent with the probabilities of the case and is the truth.” [53] From documentary evidence before the Court, including direct evidence of the Plaintiff and his family members, it is manifestly plain that the Plaintiff had no intention of gifting shares in his companies to anyone, S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 43 including the Individual Defendants, but had instead always intended to retain beneficial interest in the shares of his companies. [54] Even if I am wrong, nevertheless there is a consistent course of conduct by the Plaintiff to enable Court to find a presumption of intention in favour of the Plaintiff pursuant to s.114(d) of the Evidence Act 1950, which provides: “Court may presume existence of certain fact 114. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. … (d) that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist is still in existence.” [55] With the presumption of intention, it falls on the Individual Defendants to rebut the presumption. [56] The Individual Defendants proffer of (i) a bare denial of the Plaintiff’s long-standing practice of putting shares in the names of family members and trusted third parties and the Plaintiff’s intention; (ii) feigning no knowledge of the Plaintiff’s arrangements with these family members and trusted third parties; and denial that the same arrangement applied to them and the shares they hold in the Companies do not add to their case. Bare denials do not go towards discharging the onus or evidential burden of proof S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 44 shifted to them given the weighty evidence adduced by the Plaintiff - Letchumanan Chettiar [57] Fact that the Individual Defendants are in possession of share certs of the various shareholding which they now hold do not add to their case one whit. This is because the Court will not overlook that the Plaintiff is illiterate and dependent on others to manage and handle documents. His evidence is that the share certificates were kept in a safe in Bahau. He had never relinquished possession of them. Until this dispute began, he had no cause to doubt that the share certificates would still be in the Bahau safe. It is also the Plaintiff’s evidence that Carmen Looh (DW6) and Madam Yun, the secretary, had access to the safe, and if the Individual Defendants now had possession of the share certificates, it is because Carmen Looh would have taken them out without his knowledge. This evidence is telling: GS I'm also going to suggest to you that if you took these share certificates, you took them without telling your father. DW6 I – GS In other words, your father never knew that you were holding these certificates. DW6 I didn't tell my father about taking this. GS Yes. You didn't tell your father that you had possession and were holding the share certificates. DW6 I didn't tell him. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 45 GS Good. And I have to… I'm going to say to you that your father never said to you, “Please keep these certificates”, as well. DW6 He didn't say that. [58] There you have it. Added to that, none of the other 4 Individual Defendants, have claimed that the Plaintiff had allowed them to take the share certificates, or even that he was aware they had the share certificates in their possession. I thus agree with Plaintiff’s counsel that this, puts paid to their reliance on the share certificates and it is entirely plausible that the evidence about the Individual Defendants’ possession of share certificates is more likely than not to have been as a result of legal advice rather than a natural occurrence arising from the agreement of the Plaintiff. [59] On a consideration of the entire evidence and not bits here and there, no doubt is left in my mind that the Plaintiff never intended to give the 5 children his shares; they were his children and there was no basis at that time they could not be trusted for mere e.g., this passage when he was under cross-examination: LR Can I put it to you, Dato’, you know perfectly well all these claims are not true, insofar as your five youngest children are concerned? PW1 Disagree, what you say. LR Can I also put it to you, Dato', that since Ah Peng, Ah Wei and Pik Loo acquired their shares in Prospell, they have exercised their rights as shareholders in their own right and not as a nominee? PW1 I disagree. I already said I 100% I control, I haven’t divided the family yet. Haven’t divided yet. If I am going to divide it, I am going to divide S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 46 it in an equal shares. I got nine children, three wives. I cannot be giving them to divide to only few of them specifically. What is the reason, what is the grounds? Yes, it is different if he is helping the company. Because these shares, these keys, Pik Loo has been taken it, so Pik Loo has taken it, she can actually burn it with fire or anything. Because everything I trusted my daughter, because one is a son, one is a daughter. Then, that was why I sign all to them. On the balance of probabilities, the Plaintiff has made out prima facie case that it was his consistent practice and intention that members of his family and third parties, including the Individual Defendants, always held shares in his companies as trustees and if they were directors, as his nominees. [60] Naturally, I have considered the Plaintiff’s character - as the patriarch of a large and traditional Hakka Chinese family, of a generation where the eldest son would assume responsibility for looking after his immediate and extended family. His family circumstances combined to leave him with little formal education and no literacy in English and Malay; he was working by the age of 8 as a rubber tapper. In the autumn of life, the Plaintiff has built a business empire consisting of at least 8700 acres of palm oil plantation land which generated, over the last 20 years, an average of RM25.4 million in revenue through his leadership, vision and funding. I readily agree with the Plaintiff’ counsel that “this is, by any measure, a success story, hard-earned and hard-won.” S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 47 [61] He rules the roost as the head of the family and the business he was in charge. I accept that “He was “Da Ge”, big brother, to his siblings, and was respected as the boss and the head. Many of his family members worked in the Plaintiff’s companies, including his older children. Some of them were there for decades, some for shorter periods. They were there and they helped, assisted and yes, contributed to the Plaintiff’s business.” [62] As mere example (and there are many examples) to debunk the Indvidual Defendants’ tale of “sacrifice” and contributions”, Admund Looh (PW7) being the eldest of the Plaintiff’s son and in what is the equivalent of a “Prince Charles” now “Prince Harry” in a traditional Hakka family, too had shares in the Companies that were registered in his name. Admund Looh’s unchallenged evidence was that he chose to stop his tertiary education in the UK because he did not want to financially burden the Plaintiff. Admund Looh then returned to Malaysia to assist the Plaintiff in the family business and stayed with the Plaintiff for at least 10 years. By Sampson Looh’s standards, this must surely constitute a “sacrifice”. Even so, Admund Looh did not claim that the shares belonged to him because the Plaintiff would never have given away his hard earned assets. Another example is Liong Kiu (PW5), the Plaintiff’s younger brother, also known as Uncle Hoi. Liong Kiu’s unchallenged evidence was that he had been working with his brother, the Plaintiff, for about 50 years. The Plaintiff called Liong Kiu his right-hand man. It cannot be disputed that 50 years’ service must surely count as a contribution. Sampson Looh and Liong Kiu were both registered as 50% shareholders in Mestika Cemerlang on the same day, yet only Sampson claims that the share belongs to him absolutely. Liong Kiu was steadfast that S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 48 the 50% he held was held on trust for the Plaintiff as were shares in his name in a timber company. He also corroborated the Plaintiff’s evidence that share certificates are kept in the safe in the Bahau office. [63] I reject Sampson Looh’s version of events as being inherently improbable when one takes into account the value of the shares he held in Mestika Cemerlang and Sim Lim. Mestika Cemerlang was the owner of approximately 39 acres of land in Buloh Kasap, Segamat, which Sampson accepted had a purchase price of RM8 million. This meant that his 50% shareholding, allegedly given to him in 2008 for nothing more than joining his father’s business, was worth at least RM4 million. As for Sim Lim, it was a company newly incorporated for the purpose of entering into a very valuable joint venture agreement with Yayasan Negeri Sembilan for the development of a new oil palm estate. It was most curious that Sampson Looh told no one about his father’s munificence which turned him at 25- years-old into a multi-millionaire. His reason for this silence – a fascinating but nevertheless and unbelievable “I just didn’t tell”. With respect, it was not a plausible explanation for one receiving a gift of such magnitude. I find it more probable that he did not tell because it never happened. In any case, Sampson Looh’s claim that Mestika Cemerlang and Sim Lim shares were given for his contribution was not pleaded in the Re-Amended Defence and cannot be entertained. Counsel for the Plaintiff had recorded a general reservation to object, in submissions, to any evidence that had not been pleaded. See: Instantcolor System Sdn Bhd v Inkmaker Asia Pacific Sdn Bhd [2017] 2 MLJ 697, FC at [60], Iftikar Ahmed Khan (as the executor of the estate for Sardar Mohd Roshan Khan, deceased) v Perwira Affin Bank Bhd (previously known as Perwira Habib Bank Malaysia Bhd) [2018] 2 MLJ 292, FC at [27]. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 49 [64] Neither do I find convincing the tale by the Individual Defendants have whipped up before this Court of “sacrifice” and “contributions”, of “rescuing” their father and his companies. According to them, the family business was in dire straits because of the poor management by the Plaintiff and the elder sons from the first and second family. After they joined the family business, they successfully rehabilitated the business of the plantation Companies and, these efforts so impressed or moved their father that he gave them 70% of his wealth and control over his companies and assets. Fact of the matter is, despite there were some problems with the banks on loans, the objective documentary evidence shows that at all times, the Companies had a substantial land bank which provided a surplus of assets over liabilities. The Companies’ assets could and were used to satisfy their debts. Indeed, despite the sale of assets to satisfy these loans, the Plaintiff still preserved at least approximately 8700 acres of plantation land. There is no evidence at all that any of the Individual Defendants had advanced any money at all not even one cent in personal funds to settle the company loans. Thus in alleging the companies had gone to rack and ruin at the hands of the Plaintiff and other family members and in the process exaggerating their “contributions” besides sounding hollow, particularly when as alluded earlier, added nothing to the Individual Defendants’ tale. It seems to me an ill conceived machination, and not to be countenanced by the court. As part of the restructuring which Sampson carried out, Yoke Hoh was placed under Prospell which gave him 50% indirect control of Yoke Hoh. Prior to Yoke Hoh being “moved” to becoming a subsidiary of Prospell, it together with Seatex was a subsidiary of LLT Holdings. LLT Holdings as a holding company was completely clean. It is also the Individual Defendants’ case S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 50 that part of the restructuring was a transfer of shares in Yoke Hoh from Prospell to the other 4 Individual Defendants. This too made little sense other than enriching themselves as these transfers could have occurred while Yoke Hoh was still a subsidiary of LLT Holdings except that other members of the family may have come to know of it. When the lack of logic in this was put to Sampson Looh, it was telling that he had no answer. [65] Sampson also credited himself with the ‘turning around’of the companies on the basis of the audited financial statements of Prospell for the year 2020 and 2021. However, when this evidence was tested in cross- examination, what became apparent was that any improvement in the companies’ fortunes could be directly attributed to these factors: 65.1 The injection of Sim Lim into the Plaintiff’s business. It will be recalled that the Sim Lim deal was included by the Plaintiff. 65.2 A substantial increase in the price of palm oil in 2020. In fact, Carmen Looh, Sampson Looh and Bill Looh accepted this fact during Prospell’s board of directors meeting on 25.5.2022. 65.3 By the Individual Defendants’ own evidence, the efforts of the operations staff on the plantations. [66] The other 4 Individual Defendants evidence on their contributions are not spectacular, far from it and appears to be calculated to support S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 51 Sampson’s machinations that are patently an exercise in self- aggrandisement, and a disingenuous opportunistic posturing to explain away their actions to take over 70% of the Plaintiff’s assets for themselves. The Plaintiff’s counsel aptly described their contribution as “When held up to the light however, they were nothing more than a marketing exercise or the proverbial chicken which “bertelur sebiji, riuh sekampung”. Their contributions in my view, when analysed, certainly do not outweigh that of other family members who had also contributed to the business. All things considered, there is simply no good reason for the Individual Defendants to justify their entitlement to 70% of his assets and for Samsoon Looh, if one accepts that he did make some “contributions”, it cannot reasonably or with any degree of proportion entitle him to half of the Plaintiff’s business empire and wealth in the hundreds of millions of ringgit. I do not find him to be a credible witness. [67] Notably, the Share transfer forms here to the Individual Defendants do not reflect “alleged contributions “or for love and affection; it stated money’s worth instead which Individual Defendant did not pay. [68] At any rate, it is significant that the Individual Defendants’ plea on “contributions” at Paragraph 117(c) of the Re-Amended Defence is only in respect of Yoke Hoh. There is also no plea that the sahres were given for their “continuing contribution’. The Individual Defendants are bound by their pleadings - see Instantcolor System (supra) at [60] and Iftikar Ahmed Khan (supra) at [27]. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 52 Not Gifts [69] The Plaintiff had vehemently disavowed any gift to the Individual Defendants of his shares. The evidence when analysed as a whole simply do not support the Individual Defendants posit that the Plaintiff had intended to give them such a big bounty. I accept the Plaintiff’s evidence summarized in these words that “if I truly intended to give the shares to such named shareholders as a gift instead of on a nominal basis, I would have mentioned it to my family. For example, I gifted 8 shop lots in Taman Pelating, Bahau to some of my family members, including my wives, my siblings and my children. I mentioned this openly to my family members and many are aware of this.” And he has told the Individual Defendants that they were holding his shares on trust for him. The conduct and surrounding circumstances are equally pointed, in that the Plaintiff's intention was and has always been plain. In his own words numerous times, the shares "100% are mine" and were "put name only". Counsel for the Plaintiff pointed out in fact that the Plaintiff in cross-examination said no less than 50 occasions that “he put name only”. He never once said otherwise. He also said in no less than 27 occasions to the effect that the companies / assets / shares are “100% all mine”. [70] Already in 2016, the Plaintiff was diagnosed with kidney failure. It is common ground that until this time he was vital and fully occupied in his business both on an operational and management level. After his diagnosis S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 53 in 2016 and his attempts at treatment in Switzerland it became obvious that he would need permanent dialysis. In early 2018 he moved to Ipoh and in early 2019 he moved to Penang so that his brother Dr Liong could supervise his medical treatment. [71] The evidence both direct and indirect, the facts and circumstances of the case demonstrated a deliberate plan conceived by the Individual Defendants to strip their father of his assets. It was unconscionable. [72] The indubitable evidence is the Plaintiff cannot read and write in BM or English, it was not the character of the man to be totally partial to these 5 sons and daughters as he was reasonably even handed with all his family. [73] Evidently, he the Plaintiff, had riches and wealth. Beyond any question, he was worth many millions, and many times over. [74] Such improvident gift was unusual but he was also prudent and restrained in his ways. Indeed, like most businesses, there will sometimes be cash flow problems and lean times. With such a large family and extended family to care for to boot, the Plaintiff had no choice but to be prudent and restrained, even though it was never a case of penny pinching in his spending as the children did have private schooling and overseas tertiary education, at least for those who applied/were qualified to do so. He provided for them. He had too, a good a head on his shoulders in the way he acquired and managed his assets and loans. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 54 [75] To the Plaintiff, it could be reasonably said even tapping rubber at a mere age of 8 years to help support his family, that taking care of his family and extended family was his mission in life and to build a hospital for the public to fulfil his late grandmother’s wishes. That intention withstood the passage of time from the 1970s to this day – 50 years. As Da Ge, he looks and takes care of all; That was the measure of the Plaintiff. [76] The Plaintiff's vision and fervent wish was for his assets, which he accumulated over 50 years, to be passed down through the generations for at least 50 years. The thought of breaking up his assets for distribution was anathema to him. In the draft will / trust deed – prepared by Tan Sri Rais Yatim, the Plaintiff was still seeking to distribute his assets fairly amongst his nine children; it in fact reflected equality and preservation of wealth. More on this Trust Deed later. [77] Is it then to be believed that the Plaintiff with his principle of unity, fairness, equality and preservation of wealth had love and affection only for these Individual Defendants to the extent that he divested his bulk of his assets to them, and even worse still put himself in a highly disadvantageous position of losing control of his business and be a minority shareholder and Board member? He, who was always in 100% control? [78] Rather, is there a systematic exploitation of an old and sickly man? Were those around him lining their pockets? S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 55 [79] Whether a transaction is or is not unconscionable: this is a question which depends on the particular facts of the case. [80] The facts are not edifying. Instead they were shocking… the evidence shows greed and avarice after the Individual Defendants took control of the Plaintiff’s business. I agree with the Plaintiff’s counsel that even if they made some contribution, and they ought to, considering they were paid a salary, “There is no proportionality in their assertion when taken against what they said they contributed. It was greed pure and simple”. This greed for example, is manifested in Sampson treating the company as his own private ATM machine, helping himself to millions of ringgit without any responsibility for having to put it back. What stupendously raised the eyebrows is that, Bill Looh, a director in Prospell, was not aware of this and hence could not have approved it. Apart from treating it as his private ATM machine, Sampson Looh also used the company to treat himself to lavish tastes including liposuction, haircuts and luxury cars. [81] The gifts of 70% of his wealth were so large and so improvident as not to be reasonably accounted for on the ground of the relationship of father and son or daughter. [82] In the circumstances of this case, the extraordinary bounty of 70% of his wealth equivalent to hundreds of millions handed out in the manner of say so by the Individual Defendants should excite grave and unremitting suspicion. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 56 [83] There is nothing to show that the Plaintiff was unhappy with his other children, wives and extended family in the form of his siblings and their families. They all held his affection. [84] What plausible reason then was there to explain the far reaching radical departure from his life long mission of providing fairly for all his family and extended family members and to preserve wealth? [85] It is not the character of the man to be totally partial to these Individual Defendants as he was reasonably even handed with all family members. Really, he looked after all of them. [86] Is it to be believed that the Plaintiff suddenly abandoned his life long commitment to his other family and extended family members? [87] How could it not be said that the proved or admitted facts showed a relationship of confidence and an abuse of that confidence? [88] Indeed, there is a very high degree of probability that those orgy of transfers could not have been unless he had taken leave of his senses OR if Sampson and the other 4 Individual Defendants had not used their position to obtain an advantage. This is because the transfers equivalent of 70% of wealth solely favoured them, the children of the 3rd wife and a daughter of the 2nd wife, was not satisfactorily explained. The strong suspicion that the radical change of a value and belief held for half a century were not the result of the free volition of the Plaintiff was not removed. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 57 [89] They, who took the extraordinary bounty and assumed majority power in the Plaintiff’s business have the burden of proof of that the transfers were fair and reasonable; that no advantage had been taken of the Plaintiff’s position and that no information which should have been communicated had been withheld. They failed to dispel bad faith, failed to substantiate the honesty and righteousness of the transfers. [90] In the instant case, the Individual Defendants have not adduced evidence to show that all care had been taken by them that the Plaintiff was put in possession of all material facts and information so as to enable him to decide fairly, fully and freely what he wanted to do with his property. [91] In the circumstances of this case, the Individual Defendants placed in the position they were in relation to the Plaintiff, must be in full view and complete appreciation of what he was doing. [92] In my respectful view, the Individual Defendants should, not only have drawn the Plaintiff's attention to the effects upon the execution of the transfer, but to also its consequential effect including all resolutions causing him to lose control of his business. [93] By keeping silent, they had actively concealed the material facts and thus committed dishonesty against the Plaintiff and their family members. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 58 [94] The definition of dishonesty, is set out in the judgment of Lord Nicholls in the decision of the Privy Council in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378; [1995] 3 All ER 97; [1995] 3 WLR 64 where he said: “…Honesty, indeed, does have a strong subjective element in that it is a description of a type of conduct assessed in the light of what a person actually knew at the time, as distinct from what a reasonable person would have known or appreciated. Further, honesty and its counterpart dishonesty are mostly concerned with advertent conduct, not inadvertent conduct. Carelessness is not dishonesty. Thus for the most part dishonesty is to be equated with conscious impropriety. However, these subjective characteristics of honesty do not mean that individuals are free to set their own standards of honesty in particular circumstances. The standard of what constitutes honest conduct is not subjective. Honesty is not an optional scale, with higher or lower values according to the moral standards of each individual. … “All investment involves risk. Imprudence is not dishonesty, although imprudence may be carried recklessly to lengths which call into question the honesty of the person making the decision. This is especially so if the transaction serves another purpose in which that person has an interest of his own.” “…Ultimately, in most cases, an honest person should have little difficulty in knowing whether a proposed transaction, or his participation in it, would offend the normally accepted standards of honest conduct.” [95] It is also useful to refer to s. 17 of the Contracts Act 1950 where it defines ‘fraud’ as follows: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 59 “Fraud’ includes any of the following acts committed by a party to a contract or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contracts: (a) the suggestion, as to a fact, of that which is not true by one who does not believe it to be true; (b) the active concealment of a fact by one having knowledge or belief of the fact; (c) a promise made without any intention of performing it; (d) any other act fitted to deceive; and (e) any such act or omission as the law specially declares to be fraudulent.” [96] Case laws suggest that the evidence required to prove an allegation of dishonesty, stands on the same footing as an allegation of fraud, which in most cases, would depend on circumstantial evidence to prove the allegation. In Ng Pak Cheong v Global Insurance Co Sdn Bhd [1995] 1 CLJ 223; [1995] 1 MLJ 60; [1994] 3 AMR 2663 (HC), Mohamed Dzaiddin J (as he then was) dealt with the reception of circumstantial evidence in proving fraud. The learned judge said, “...it is not the law of evidence that every step in the allegation of fraud had to be proved by calling live and admissible evidence nor is it the law that fraud cannot be inferred in the appropriate case. The inference, however, should not be made lightly; the circumstantial evidence must be so compelling and convincing that bearing in mind the high standard of proof the inference is nevertheless justified...”. [97] In CGU Insurance Berhad v Asean Security Paper Mills Sdn Bhd supra Gopal Sri Ram JCA (later FCJ) said, S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 60 “…While mere suspicion is insufficient, it is not the law that a litigant who alleges fraud must unravel each and every act of the person accused of fraud. Like any other fact, fraud may be inferred from circumstantial evidence with the added proviso that there must be a foundation of evidence and not mere suspicion.” (Emphasis added) [98] The evidence is undeniable. The individual Defendants conduct is besides being dishonest is also fraudulent, whether equitable fraud or common law fraud. To prove equitable fraud, the Plaintiff need not demonstrate that the Individual Defendants have an intention to deceive; the Plaintiff only need to show that there was a relationship of trust and confidence between the parties, and that there has been unconscionable conduct by the Individual Defendants - see Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751 FC: “[23] The 'fraud' of which Lord Halsbury spoke in Salomon v A Salomon & Co Ltd includes equitable fraud. In the recent Australian case ofThe Bell Group Ltd (In liquidation) v Westpac Banking Corporation (No 9) [2008] WASC 239; 70 ACSR 1, Owen J discussed the distinction between equitable fraud and fraud at common law. His Honour said: 4849One of the leading Australian texts on equitable principles is R Meagher, D Heydon and M Leeming, Meagher, Gummow and Lehane's Equity Doctrines and Remedies (4th Ed, 2002). When I refer to this text from time to time in these reasons I will do so by the shortened phrase 'Meagher, Gummow and Lehane'. At [12-050] the authors set out a non-exhaustive list of factual and legal situations that have traditionally been treated as species of equitable fraud. They include: (a) misrepresentation by persons under an obligation to exercise skill and discharge reliance and trust (for S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 61 example in fiduciary relationships), and inducements to contract or otherwise for the representee to act to his detriment in reliance on the representation; (b) the use of power to procure a bargain or gift, resulting in disadvantage to the other party; (c) conflict of interest against a duty arising from a fiduciary relationship; and (d) agreements which are bona fide between the parties but in fraudof third persons. ……….. 4853This, then, marks out a significant difference between common law fraud and equitable fraud. The latter does not require proof of an actual intention to deceive. To summarise, a plea of fraud at common law will not succeed absent proof of an intention to deceive. Such an intention is not an ingredient of equitable fraud which is, essentially speaking, unconscionable conduct in circumstances where there exists or is implied or imposed a relationship of trust or confidence.” See also Ktl Sdn Bhd Ktl Sdn Bhd v Leong Oow Lai [2014] MLJU 1405 at [93]. [99] As alluded earlier, that there is a relationship of trust or confidence between the Individual Defendants and the Plaintiff cannot be disputed. Their clinging on to the 70% wealth of the Plaintiff, taking over his business, and to enrich themselves at the Plaintiff’s expense is unconscionable to come S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 62 within equitable fraud. The Privy Council in Hart v O’Connor [1985] 1 AC 1000 at p 1024C described unconscionable conduct as follows: … "Fraud" in its equitable context does not mean, or is not confined to, deceit; "it means an unconscientious use of the power arising out of these circumstances and conditions" of the contracting parties; Earl of Aylesford v. Morris (1873) L.R. 8 Ch. App. 484, 491. It is victimisation, which can consist either of the active extortion of a benefit or the passive acceptance of a benefit in unconscionable circumstances. [100] The Plaintiff will have to show intention for common law fraud - Takako Sakao (supra): [23]…. The term common law fraud is often used to describe the tort of deceit, or the making of fraudulent misrepresentations. The tort of deceit is said to encompass cases where the defendant knowingly or recklessly makes a false statement, with the intention that another will rely on it to his or her detriment…….. In Armitage v Nurse [1997] EWCA Civ 1279; [1998] Ch 241; [1997] 3 WLR 1046, Millett LJ discussed the meaning of 'actual fraud' in the context of an exemption clause. At p 1053, His Lordship described actual fraud as connoting, at least, 'an intention on the part of the trustee to pursue a particular course of action, either knowing that it is contrary to the interests of the beneficiaries or being recklessly indifferent whether it is contrary to their interests or not'….. [101] Once fraud is proven, it vitiates all transactions whatsoever. Fraud unravels all. As cited by the Federal Court in Lai Fee v Wong Yu Vee [2023] 3 MLJ 503 at [63]: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 63 [63] In CIMB Bank Bhd v Maybank Trustees Bhd and other appeals, the Federal Court ruled that a party which had committed fraudulent misappropriation of trust monies could not benefit from its own fraud and that that party cannot rely on the exemption clause under the contract as a defence. Ariffin Zakaria CJ writing for the Federal Court referred to the following remarks of Lord Bingham in HIH Casualty and General Insurance Ltd, at para [15]: … fraud is a thing apart. This is not a mere slogan. It reflects an old legal rule that fraud unravels all: fraus omnia corrumpit. It also reflects the practical basis of commercial intercourse. Once fraud is proved, ‘it vitiates judgments, contracts and all transactions whatsoever’: Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at p 712, per Lord Justice Denning: ‘Parties entering into a commercial contract will no doubt recognise and accept the risk of errors and omissions in the preceding negotiations, even negligent errors and omissions. But each party will assume the honesty and good faith of the other; absent such an assumption they would not deal’. [102] I note the deafening silence too even at the three meetings/discussions prior to Plaintiff’s open-heart surgery on 29.9.2020 (“Pre-surgery Meetings”), post surgery 10 December hospital meeting, the Phone Call of 17.5.2021 and the meeting at Bahau during the ancestral memorial day on 25.12.2021 (“Bahau Meeting”) where the Plaintiff and all his children attended (except Sampson and Shandy). If the 70% of the Plaintiff’s wealth were given to them, there was not a whisper of protest nor reminder registered with the Plaintiff that these shares were no longer his. And they know conflict was brewing because one of them went and saw lawyers after the Bahau meeting. In this regard, the consistency of the S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 64 Plaintiff’s intention and wishes of a fair and equitable distribution is fortified the following: 102.1 the Individual Defendants asserted that the dinner at CRC Restaurant three days before open heart surgery was a celebration dinner and that there were no discussions of the Plaintiff’s intention of a fair and equitable distribution amongst his nine children, and the preservation of his assets and business empire. I accept the Plaintiff’s version as being inherently probable that he would have expressed his wishes and objectives, whether at the dinner at CRC restaurant or the night before surgery as the Plaintiff, facing such a major surgery and at that senior age would be fully aware of his mortality. It would not be repugnant with common sense and logic for him to wish to put his affairs in order. There is no lack of authorities on our shores including the Privy Council case of Keng Soon Finance v MK Retnam Holdings Sdn Bhd & Anor [1989] 1 MLJ 457 that the common sense approach can be applied to achieve a just result in arriving at a decision. 102.2 Carmen Looh acknowledged in the Hospital recording on 10.12.2020 secretly made by her that by the “11 people” in the recording, the Plaintiff meant all 9 children and the 2 surviving wives of the Plaintiff; she acknowledged that the shares were held on trust or as nominees as made clear from the spoken Cantonese words of “doi ling”. Her now S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 65 opportunistic explanation that she meant to say “to lead” (as opposed to “to represent”) is rejected. Significantly, she did not did not assert ownership when it was her own evidence under cross-examination that she could “stand up to the Plaintiff” in instances when the Plaintiff is wrong. In the face of multi millions weighing in the bargain for her, I reject her feeble explanation that she kept silent because “because it is already common understanding between [the Plaintiff and her]”. 102.3 The trust deed, which the Plaintiff described as his “will”, prepared by his solicitor, Tan Sri Rais Yatim, on 1. 2. 2020 and Draft Will both made provisions for the non-breakup of his assets and empire and fair distribution of the trust fund (comprising the Plaintiff’s assets) to all 9 children and spouses and supports his case of fair and equitable distribution. Notwithstanding the Individual Defendants’ contention that the Trust Deed or Will contained a list of asserts and made no mention whatsoever of the trust set up for generations, I accept the evidence of the Plaintiff and his witnesses that it does not capture all of his assets at the material time and that he only found out subsequently and that this explains the Plaintiff’s reference to and reliance on the Trust Deed during the Dec 10 Meeting. He could not have known the Trust Deed did not provide for his entire assets of 100% as he does not write and read English and S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 66 Malay and have to depend on others. If the Individual Defendants’ case is to be believed, it means the Plaintiff having already given away 70% of his assets, he will still be giving more assets to the Individual Defendants from the Plaintiff’s balance 30%. It is improbable, simply do not make sense and completely goes against the grain of his value of fair and equitable distribution if in fact he was aware the Trust Deed covers only 30% of his 100%. But he was not aware and having been made aware, he has terminated the Trust Deed. 102.4 There is then the Phone Call of 17.5.2021 between Carmen Looh and the Plaintiff again which Carmen Looh secretly recorded. Once more, she made no express assertion of ownership. It begs the burning question yet again WHY, if the shares were truly hers. And it must be borne in mind that the Plaintiff was unguarded in both the 10 December hospital meeting and the Phone Call of as he did not know his trusted daughter Carmen was secretly audio-recording both events. 102.5 At the Bahau Meeting which was expressly requested by the Plaintiff to be recorded, as opposed to Nathan’s privately and separately audio- recording of the same, Bill, Carmen and Nathan did not openly and expressly assert that the shares registered in their names or in the names of S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 67 Sampson and Shandy were given to them in consideration of their respective contribution or per the premise of their pleaded Defence. In the face of the Plaintiff’s challenge to their continued ownership of the shares, their non -assertion of ownership at the meeting is mind blowing. Why did they not confront or remind their father that the shares were given to them, if indeed it was so? The irresistible conclusion can only be they knew that the shares do not belong to them. They had ample time to prepare for the Bahau meeting as shown by the evidence. Bill, Carmen and Nathan knew 5 days beforehand of the Bahau Meeting that the Plaintiff would seek a return of the shares registered in their names. Bill and Nathan travelled together to the Bahau Meeting, these two brothers discussed the matter and according to Bill, Nathan and him would be telling the Plaintiff that the shares in their names belong to them. But they did not. At the Bahau meeting, the only meaningful words Bill said was to the effect of “wait for Sampson’s return”, Nathan defied the Plaintiff’s instructions to return the shares, spoke of unrelated and incoherent events, whilst Carmen focused on her guarantorship only arising from her directorship in the companies (as opposed to shareholding). To this, the Plaintiff asserted that he would discharge Carmen’s guarantees. They knew conflict was brewing so WHY DID THEY NOT SAY IT STRAIGHT THAT THE SHARES IN S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 68 THEIR NAME BELONG TO THEM? Obviously, it must be that the shares are their father’s and not theirs. [103] Why did it not strike the Individual Defendants at all that their father would find issue with the transfers? [104] This court as a court of conscience will not just blindly accept the 5 indiv D’s ipse dixit assertion that the transfer of shares to them is a gift but will instead protect the aged and infirm from being tricked or misled in any way by others, and yes, including his own children in whom he reposed trust and confidence into parting with his property. [105] An alleged gift must be proved, and only if a gift is proved will the law not question the rationale no matter how improvident the gift and inconsistent with hitherto values and belief. [106] Despite the purported love for their father, and each of them testified, professing that they share his values of unity, fairness, equality and preservation of family wealth, yet they cling on to the 70% and even fought their octagenarian father’s bid for an early trial. Why? Because a dead man tells no tales! And they will then have in aid of their tale, the presumption of advancement! [107] Providence made it possible for the Plaintiff to testify despite his legs being amputated in the course of trial, and the Plaintiff has given his version - that the transfers are not gifts. I believe him. Indeed, I have no S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 69 reason not to arising from corroborated and credible evidence of his witnesses. [108] It was very clear, to me that the Individual Defendants, by their stratagem of the so-called gifts were salting away and securing their own nest. [109] In the ultimate analysis, the evidence in support of the Individual Defendants that the transfers or allotment of shares are gifts to them was weak, both inherently unbelievable and inherently improbable given the circumstances of this case. I find the respective Individual Defendants’ account that the Plaintiff intended a gift to them of the shares is not credible. Considering the totality of the evidence before me, there is sufficient evidence leaning in favour of the Plaintiff’s case. [110] This means the presumption of advancement is rebutted and must be found against the Individual Defendants. The Plaintiff is entitled to all the shares registered in the Individual Defendants’ name on the basis of the pleaded trust. I make the findings that the Plaintiff contributed personally the entire acquisition of all the substantial assets associated with his empire, which began in around the 1970’s. He did not intend to give full beneficial ownership of his shares to the Individual Defendants. Despite intensive cross-examination for 19 days from his hospital bed by the individual Defendants’ counsel, the Plaintiff remained consistent throughout in his wishes and objectives, including a fair and equitable distribution of his assets to his nine children after his demise, non-division of his assets, preservation S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 70 of generational wealth and looking after the larger and extended Looh family including the Plaintiff’s siblings. [111] The entirety of the evidence in chief, the cross-examination and the re-examination, the transcripts of audio recordings of the 10 the December meeting, Phone Call and Bahau Meeting, the documentary evidence before the court, the conduct of the parties, assessed, weighed as a whole show to this court the Plaintiff’s consistent intention was always that family or third parties would hold shares for him on trust; and there is simply no good reason for the Individual Defendants to justify their entitlement to 70% of his assets. [112] The beneficial interest thus “resulted” back to the Plaintiff. The elements of imposing a constructive trust are also present such that to allow the Individual Defendants to retain the shares will be unconscionable. Whether on a resulting trust or constructive trust, the Plaintiff gets back his shares. Fraud whether equitable or common law fraud has also been proven. [113] In my considered view, on the material before the court, the Plaintiff’s counsel in their industry, had set out the facts and the relevant authorities in lucid details. I find myself to be in complete agreement with Plaintiff’s counsel’s analysis of the evidence and authorities, and am persuaded by the force of their arguments that on the facts, there was the Plaintiff’s intention to create a trust or to retain the beneficial interest in the shares of his companies. I have adopted parts of their submissions in this S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 71 judgment but find it unnecessary to deal with each and every point raised in all the submissions. Corporate Defendants [114] As for the Corporate Defendants, given the way the companies were restructured as manifested by evidence before the court, I agree with the Plaintiff’s counsel that the Corporate Defendants’ shareholdings are the result of the Individual Defendants’ “restructuring” of the Plaintiff’s assets and companies. The fate of the Corporate Defendants is inextricably linked to that of the Individual Defendants who are presently in control of the Corporate Defendants. The evidence show Sampson Looh to be clearly in the saddle, took responsibility for designing and executing the entire exercise to strip their father’s assets. Articles do not recognize Trust [115] The Individual Defendants and the Corporate Defendants also argue that the Articles of Association of the companies do not recognize a trust. I find this argument to be futile. The Articles do not vaporize the trust in favour of the Plaintiff. The Articles do not in any manner in my view affect the validity of the trust arrangement between the Plaintiff and the Individual Defendants which is of no concern to the Corporate Defendants. As between the Plaintiff and Individual Defendants, the trust can be enforced . Evaluation and assessment of the credibility of the witnesses S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 72 [116] As “evidence” is not confined to documents and the Court is enjoined by s. 3 of the Evidence Act to consider oral statements by witnesses, the evaluation and assessment of the credibility (or otherwise), of the witnesses were crucial to the present case. In assessing credibility of the witnesses, I have taken note that credibility of a witness embraces not only the concept of his truthfulness i.e. whether the evidence of the witness is to be believed but also the objective reliability of the witness i.e. his ability to observe or remember facts and events about which the witness is giving evidence and this court must pay attention to a number of factors which, inter alia, include the following as exposited by Gillen J in Sean Thornton (a minor by his mother and next friend) v Northern Ireland Housing Executive [2010] NIQB 4: (i) The inherent probability or improbability of representations of fact; (ii) The presence of independent evidence tending to corroborate or undermine any given statement of fact; (iii) The presence of contemporaneous records; (iv) The demeanour of witnesses e.g., does he equivocate in cross examination; (v) The frailty of the population at large in accurately recollecting and describing events in the distant past; (vi) Does the witness take refuge in wild speculation or uncorroborated allegations of fabrication; S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 73 (vii) Does the witness have a motive for misleading the court; and (viii) Weigh up one witness against another [117] Sir George Farwell in the Privy Council case of Bombay Cotton Manufacturing Company v Motilal Shivlal ILR 1915 39 Bom 386, PC, in addressing the credit of a witness upon cross-examination, said that ‘it is most relevant in a case where everything depends on the judge’s belief or disbelief in the witness’ story.’ [118] The tale spun by the Individual Defendants that they were given 70% of their father’s wealth is not believable to this Court and was blown to smithereens when tested under incisive cross-examination by both the Plaintiff’s counsel, Mr Gopal Sreenevasan and Mr. Robert Low. The importance of oral evidence through cross-examination is underscored by the following authorities: 118.1 Carmarthenshire County Council v Y [2017] 4 WLR 136 at [7] to [9]: 7 ….Oral evidence-in-chief now requires the permission of the judge be given. FPR r 22.11 provides the right to cross-examine a witness on his or her witness statement. Thus, the general rule is that facts in issue are to be proved by written evidence-in- chief and oral evidence given under cross-examination. Of course, facts may also be proved by hearsay evidence pursuant to the Civil Evidence Act 1998 and FPR rr 23.2–23.5, but the general rule is that oral evidence given under cross-examination is the gold standard. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 74 8 Why is this? It is because it reflects the long-established common-law consensus that the best way of assessing the reliability of evidence is by confronting the witness. In Crawford v Washington (2004) 124 S Ct 1354, para 62 Scalia J, when discussing the explicit command to afford cross- examination of witnesses in criminal cases contained within the Sixth Amendment to the US Constitution, stated: “To be sure, the clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined. Cf 3 Blackstone, Commentaries, at 373 (‘This open examination of witnesses … is much more conducive to the clearing up of truth’); M Hale, History and Analysis of the Common Law of England 258 (1713) (adversarial testing ‘beats and bolts out the truth much better’).” 9 It should not be thought that this consensus or viewpoint is confined to criminal causes. Thus, in Goldberg v Kelly (1970) 397 US 254, a case about the entitlement to receive certain federal welfare benefits, Brennan J stated, at p 269: “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” 118.2 Berezovsky v Abramovich [2012] EWHC 2463 (Comm): S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 75 92. … However, it would not have been practical, given the length and complexity of the factual issues involved, for the court to have required evidence in chief to have been given orally. It was for that reason that cross-examination, in particular of Mr. Berezovsky and Mr. Abramovich, assumed such a critical importance. [119] In deciding the matter, I will make clear that I have preferred the evidence of the Plaintiff’s witnesses whom I viewed as ‘more credible’ in support of the Plaintiff’s contentions, as compared to the Defendants’ witnesses whom I found ‘evasive’ when troubling questions were put to them, and were not credible. The Defendants’ witnesses’ evidence simply do not add up. Even if there were discrepancies in the Plaintiff’s witnesses' evidence, if at all, were minor and not relevant, and on the whole, the Plaintiff’s witnesses were forthright, their evidence was comprehensive, compelling, convincing and consistent with the documents and the overall probabilities. As alluded earlier, some latitude is accorded the Plaintiff due to his advanced years, testifying from hospital, medical conditions and owing to having to cope with a translator. In the context of the entirety of the evidence before the court, any lingering doubts that I have, I would resolve in favour of the Plaintiff. Exemplary/aggravated damages [120] In Khaw Cheng Poon & Ors v Khaw Cheng Bok & Ors and another appeal [2005] 6 MLJ 540; [2005] 3 CLJ 753, Gopal Sri Ram JCA (as he then was) delivering the judgment of the Court of Appeal said: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 76 … Exemplary damages are only awarded in special circumstances. These circumstances are contained in the speech of Lord Devlin to which we have already referred, that no new categories are admissible to the Devlin list has now been settled in the decision of the House of Lords in Cassell & Co Ltd v Broome [1972] AC 1027. (Emphasis added.) [121] In Rookes v Barnard and others [1964] AC 1129, Lord Devlin stated unlike ordinary damages whose purpose is to compensate, that of exemplary damages is to punish and deter, and there are two categories of cases when it should be awarded, viz: (a) oppressive, arbitrary or unconstitutional action by the servants of Government; (b) the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff. [122] In Big Junkyard Sdn Bhd & Anor v Chan Kah Wai [2023] 1 CLJ 564 the court held: "[41] Thus, aggravated damages are given as additional compensation where there is injury to the feelings of the plaintiff that is caused by or exacerbated as a result of exceptional conduct of the defendant. The conduct must be high- handed or malicious act or an act done in an oppressive manner. Mere wrongful conduct is not sufficient. There must be something exceptional in the act that was done. The matter was lucidly stated by Lord Devlin in Rookes v Barnard [1964] AC 1129 at page 1232 as follows: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 77 I doubt whether the facts disclosed in the summing up shows even a case for aggravated damages … present there seems to be no evidence that the Respondents were motivated by malevolence or spite against the appellant ... Again in so far as disclosed in the summing up there was no evidence of offensive conduct or of arrogance or insolence. (Emphasis added.) [42] ………there are two elements relevant to the availability of an award for aggravated damages: firstly, exceptional or contumelious conduct or motive on the part of the defendant in committing the wrong; secondly, intangible loss suffered as a result by the plaintiff, that is injury to feelings or personality. Based on the above principles, the facts of the case at hand does not make out a case for aggravated damages. There is nothing exceptional about the action of the second defendant. There is no evidence of offensive conduct or arrogance or insolence of motive or that the second defendant was motivated by malevolence or spite….." [123] In Rookes v Barnard supra, Lord Devlin also expressed the view that awards of exemplary damages should be moderate and that the resources of the parties was a relevant consideration. It follows from this that an award of RM10 million sought by the Plaintiff would wreak hardship on the Individual Defendants considering their means. I find that too modest a sum would make no impact on the Individual Defendants. I have taken into consideration also the conduct of the Individual Defendants right down to the time of judgment in opposing early trial as well as denying the Plaintiff who established the family business a right of inspection of companies records until the judicial hand of intervention was sought by the Plaintiff. As children and trustee, it is the Individual Defendants bounden duty to protect the interests of their aged and illiterate father and not let their own interests and self-vested agendas conflict with their duties to their father. They took advantage of their father’s trust in S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 78 them, of his ill- health, illiteracy and old age. In Plaintiff’s counsel’s words, “They must know that the Plaintiff would agree to put shares in their names when they asked, because to him the shares were all his. They knew that the Plaintiff would not trouble with a written trust deed, because this had been his practice, for decades, with his family members. They knew, and deliberately, with intent, abused their positions of trust.” There are exceptional circumstances here. The cumulative conduct of the Individual Defendants here justify the award of exemplary damages against them but not aggravated damages. The Plaintiff is a victim of the Individual Defendants’ greed and avarice. Shakespeare’s Act 4, Scene 3 in Hamlet aptly reflects the greed here: “With this, there grows In my most ill-composed affection such A stanchless avarice that, were I king, I should cut off the nobles for their lands, Desire his jewels and this other's house; And my more-having would be as a sauce To make me hunger more, that I should forge Quarrels unjust against the good and loyal, Destroying them for wealth.” [124] For the aforesaid reasons, I order that each Individual Defendant pay a sum of RM500,000 as exemplary damages to the Plaintiff. [125] Having heard the parties on the orders to be made and clarified on 22.11.2023, there will be judgment for the Plaintiff for the orders sought in the reamended SOC as clarified on 22.11.23; consequential orders, costs of RM1,100,000.00 (subject to allocator) to be paid jointly and/or severally by S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 79 the Individual Defendants in favour of the Plaintiff, Looh Keo @ Looh Lim Teng; Costs of RM75,000.00 (subject to allocatur) to be paid jointly and/or severally by the Individual Defendants in favour of the 12th Defendant, Privilege Vintage Sdn Bhd; Interest at 5% per annum on all monetary sums (including such sum as shall be found to be due upon the taking of accounts) and costs awarded from the date of the Judgment herein until the date of full realization. The costs ordered was justifiable on account of the criterias in Order 59 r 16 ROC 2012 - interalia, this is not a run of the mill case, the trial took 49 days. [126] It has been an enjoyable trial by all accounts. I am grateful to counsel for the respective parties and thank them profusely for the very substantial efforts expended in research and their written submissions which have greatly assisted the court in arriving at a decision. Dated: 22nd November 2023 - sgd - ………………………. Liza Chan Sow Keng Judge High Court of Malaya at Kuala Lumpur COUNSEL: For the Plaintiffs : Gopal Sreenevasan (together with him, Robert Low, Karen Yong, Michelle Chiew, Chong Lip Yi and Nanthaniel Low) Messrs Robert Low & Ooi S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 80 For the 1st – 5th & 13th Defendants : Lambert Rasa - Ratnam (together with him, Andrew Chiew, Chia Oh Sheng, Lim Jun Xian and Athena Chan) Messrs Lee Hishammuddin Allen & Gledhill For the 6th – 9th, 11th & 14th Defendants : Rishwant Singh Messrs Cecil Abraham & Partners For the 12th Defendant : Ramsun Ho Messrs See Ramsun & Tan CASES CITED: Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697; [2017] 5 CLJ 418 Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61 Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1 ESPL (M) Sdn Bhd v Radio & General Engineering Sdn Bhd [2005] 2 MLJ 422 Ikumi Terada v Jemix Co Ltd & Ors And Another Appeal [2019] 1 LNS 881 Pembinaan Lagenda Unggul Sdn Bhd v Geohan Sdn Bhd [2018] MLJU 196 Geh Cheng Hooi & Ors v Equipment Dynamics Sdn Bhd and other appeals [1991] 1 MLJ 293 Yeong Ah Chee @ Yan Hon Wah v Lee Chong Hai & Anor & 13 Other Appeals [1994] 2 MLJ 614 at pg 624; [1994] 3 CLJ 20 Fawziah Holdings Sdn Bhd v Metramac Corporation Sdn Bhd & another Appeal [2006] 1 CLJ 996 S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 81 Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 Goh Jui Leang v Tay Sing Hwa [2018] 1 LNS 828 Lin Ah Moy v Lee Cheng Hor & Anor [1970] 2 MLJ 99 Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67 Tay Choo Foo v Tengku Mohd Saad Tengku Mansur & Ors And Another Appeal 2009] 1 MLJ 289; [2009] 2 CLJ 363 Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751 Zung Zang Wood Products Sdn Bhd & Ors v Kwan Chee Hang Sdn Bhd & Ors [2012] 5 MLJ 319 Soon Peng Yam & Anor v Bank of Tokyo-Mitsubishi (Malaysia) Bhd [2004] 2 MLJ 31; [2004] 1 CLJ 532 Md Zainudin bin Raujan v Public Prosecutor [2013] 3 MLJ 773 CGU Insurance Berhad v Asean Security Paper Mills Sdn Bhd [2006] 3 MLJ 1; [2006] 2 CLJ 409 Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378; [1995] 3 All ER 97; [1995] 3 WLR 64 Ng Pak Cheong v Global Insurance Co Sdn Bhd [1995] 1 CLJ 223; [1995] 1 MLJ 60; [1994] 3 AMR 2663 Hart v O’Connor [1985] 1 AC 1000 Lai Fee v Wong Yu Vee [2023] 3 MLJ 503 Keng Soon Finance v MK Retnam Holdings Sdn Bhd & Anor [1989] 1 MLJ 457 S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 82 Carmarthenshire County Council v Y [2017] 4 WLR 136 Berezovsky v Abramovich [2012] EWHC 2463 (Comm) Khaw Cheng Poon & Ors v Khaw Cheng Bok & Ors and another appeal [2005] 6 MLJ 540; [2005] 3 CLJ 753 Rookes v Barnard and others [1964] AC 1129 Big Junkyard Sdn Bhd & Anor v Chan Kah Wai [2023] 1 CLJ 564 STATUTE/LEGISLATION REFERRED: Section 3, 114(d) of the Evidence Act 1950 Section 17 of the Contracts Act 1950 S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

WA-22NCC-112-03/2022

PLAINTIF 1. ) LOOH KEO @ LOOH LIM TENG 2. ) LOOH CHAI BOON (Mendakwa sebagai wakil Plaintif Pertama) DEFENDAN 1. ) LOOH CHEE PENG 2. ) Loo Chee Peng 3. ) Looh Chee Wee 4. ) Looh Pik Loo 5. ) Looh Kit Siang 6. ) Looh Loo Yeok 7. ) PROSPELL ENTERPRISE SDN BHD 8. ) YOKE HOH SDN BHD 9. ) LOOH OIL REFINERY SDN BHD 10. ) MESTIKA CEMERLANG SDN BHD11. ) SIM LIM PLANTATIONS SDN BHD 1 2. ) PRIVILEGE VINTAGE SDN BHD1 3. ) GEORGETOWN SPECIALIST CENTRE SDN BHD1 4. ) GALAXY ATTRACTION SDN BHD

Companies and Corporations — Shares — Ownership of shares — Transfer of shares to 5 individual Defendants by illiterate Plaintiff father — Pre- existing relationship of trust and confidence — Whether Plaintiff had beneficial ownership of shares in companies — Trusts and Trustees — Characteristics of trust — Resulting Trust — Constructive trust — Importance of cross-examination — Case for award of exemplary damages made out

25/11/2023

YA Puan Liza Chan Sow Keng

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=0646c527-75bb-47dc-972c-4c1f383ccd55&Inline=true

1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) SUIT NO: WA-22NCC-112-03/2022 BETWEEN 1. LOOH KEO @ LOOH LIM TENG (NRIC No.: 420405-04-5225) 2. LOOH CHAI BOON (NRIC No.: 651019-05-5335) (Suing as P1’s attorney) … PLAINTIFFS AND 1. LOOH CHEE PENG (NRIC No.: 830122-10-5381) 2. LOOH CHEE WEE (NRIC No.: 810914-14-5885) 3. LOOH PIK LOO (NRIC No.: 820908-05-5364) 4. LOOH KIT SIANG (NRIC No.: 910426-14-5307) 5. LOOH LOO YEOK (NRIC No.: 850301-10-5668) 6. PROSPELL ENTERPRISE SDN BHD (Company No.: 199001010304 / 201874-U) 7. YOKE HOH SDN BHD (Company No.: 198201002536 / 82282-T) 8. LOOH OIL REFINERY SDN BHD (Company No.: 201301008946 / 1038788-M) 25/11/2023 19:36:23 WA-22NCC-112-03/2022 Kand. 382 S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 9. SIM LIM PLANTATONS SDN BHD (Company No.: 200701035071 / 793100-K) 10. MESTIKA CEMERLANG SDN BHD (Company No.: 199801006931 / 463058-P) 11. GALAXY ATTRACTION SDN BHD (Company No.: 200101001101 / 536857-K) 12. PRIVILEGE VINTAGE SDN BHD (Company No.: 201501043228 / 1168549-A) 13. GEORGETOWN SPECIALIST CENTRE SDN BHD (Company No.: 201601022775 / 1193714-M) 14. SEATEX PLANTATIONS SDN BHD (Company No.: 197901008221 / 52507-X) … DEFENDANTS GROUNDS OF JUDGMENT INTRODUCTION [1] This action is a family dispute where the octogenarian Plaintiff seeks the return of the shares in Companies presently registered in the names of his 5 youngest children, the 1st to 5th Defendants (“Individual Defendants”), which the Plaintiff claims are held on trust for him. Background [2] The backdrop of this case tells of a most remarkable feat of a self- made man, with only a standard one education by reason of poverty and circumstances, illiterate and unable to read in English and Malay, who S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 started working at 8 years old to help support his family, went on to build a substantial business empire and provided for his family. [3] The Plaintiff has 9 children by 3 wives. He is a traditional Hakka Chinese patriarch, an authoritative man who headed and directed both his immediate and extended family. In running the Plaintiff’s business, he was a man who expected obedience and he received it. He took responsibility for the entire family and was in turn respected by them. Dr Liong (PW8), the Plaintiff's youngest brother, explained it this way: “PW8: Let me be very clear again. Looh Lim Teng, my brother, told me "I am the owner of all these shares. When I ask you to assign to whichever nephew or make them the director, you please follow my instruction". So, I say "yes, brother, that is your share and you are my eldest brother. I follow instruction". That is the usual practice over the years. Can I add a bit? My family is a typical Hakka conventional family. We work on a very important concept called family governance. That means, we don't need contract. But by virtue of the fact he is my eldest brother and we respect him a lot, you can see over the years, all the brothers, sisters, we work tirelessly together with him. So we do not need contract. But we saw a man of honouring. That's why, when my brother asked me to do it, I will do it faithfully.” [4] 6 other family members of the Plaintiff testified to like effect comprising: Liong Kiu (PW5), the Plaintiff’s younger brother, Admund Looh (PW7), the Plaintiff’s eldest son), Desmond Looh (PW6), the Plaintiff’s 4th child; Lim Meow Fook (PW2,) Plaintiff’s brother-in-law; Lang Tuang Mauh (PW3), another of the Plaintiff’s brothers-in-law, Chan Chung Yen (PW4), the Plaintiff’s daughter-in-law (Michael Leong’s wife). S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 [5] The Individual Defendants are 5 out of 9 children of the Plaintiff. D3 is from the Plaintiff’s 2nd wife whilst D1, D2, D4 and D5 are from the Plaintiff’s 3rd wife. They were involved and had employment in the Plaintiff's business in its later years effective as follows: D1/Sampson Looh : 2008 D2/Bill Looh : 2004 D3/Carmen Looh : 2012 D4/Nathan Looh : 2011 D5/Shandy Looh : 2013 [6] At time of filing of action, the Plaintiff was 80 years of age and has had open-heart surgery in September 2020. He had to and still is undergoing dialysis on a weekly basis in Penang. [7] This action was filed as a result of the Individual Defendants’ refusal to cooperate when the Plaintiff sought to put his affairs and assets in order after his open heart surgery in September 2020. Assets built through the years of Plaintiff’s toil and efforts [8] By Bill Looh’s (DW2) own estimation, the assets of at least approximately 8700 acres of oil palm plantation land alone has a conservative value ranging between approximately RM261 million and RM348 million. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 Changes in share ownership and directorship after the individual defendants joined the Plaintiff’s business [9] The Individual Defendants presently in various combinations, control the 6th to 14th (except the 10th to 12th) Defendants at the Board and/or shareholder levels. [10] The changes in shareholding after the individual defendants joined at various times the Plaintiff’s business are: Date Company No. of Shares Percentage Sampson Looh (D1) 26.10.2007 Sim Lim Plantations Sdn Bhd 75,000 3.75% 14.04.2008 Mestika Cemerlang Sdn Bhd 1 50% 08.02.2013 Prospell Enterprise Sdn Bhd 1,000,000 50% 14.03.2013 Looh Oil Refinery Sdn Bhd 5,000 50% 08.07.2014 Prospell Enterprise Sdn Bhd 1,500,000 50% 16.02.2015 Looh Oil Refinery Sdn Bhd 50,000 1% 27.12.2016 Yoke Hoh Sdn Bhd 860,000 10% 17.01.2019 Georgetown Specialist Centre Sdn Bhd 510 51% Bill Looh (D2) 03.03.2008 Galaxy Attraction Sdn Bhd 500,000 50% 05.05.2008 Galaxy Attraction Sdn Bhd 1,900,000 50% 14.03.2013 Looh Oil Refinery Sdn Bhd 5,000 50% 02.09.2016 Privilege Vintage Sdn Bhd 10,000 1% S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 15.12.2016 Prospell Enterprise Sdn Bhd 25,000 0.5% 27.12.2016 Yoke Hoh Sdn Bhd 1,634,000 19% 23.01.2017 Prospell Enterprise Sdn Bhd 25,000 0.5% 17.01.2019 Georgetown Specialist Centre Sdn Bhd 200 20% 04.04.2019 Prospell Enterprise Sdn Bhd 450,000 9% 25.04.2019 Privilege Vintage Sdn Bhd 90,000 1% Carmen Looh (D3) 16.02.2015 Looh Oil Refinery Sdn Bhd 50,000 1% 02.09.2016 Privilege Vintage Sdn Bhd 10,000 1% 27.12.2016 Yoke Hoh Sdn Bhd 688,000 8% 19.12.2018 Georgetown Specialist Centre Sdn Bhd 490 49% 04.04.2019 Prospell Enterprise Sdn Bhd 500,000 10% 23.04.2019 Georgetown Specialist Centre Sdn Bhd 290 29% 25.04.2019 Privilege Vintage Sdn Bhd 90,000 1% Nathan Looh (D4) 02.09.2016 Privilege Vintage Sdn Bhd 10,000 1% 25.04.2019 Privilege Vintage Sdn Bhd 90,000 1% 27.12.2016 Yoke Hoh Sdn Bhd 688,000 8% Shandy Looh (D5) 02.09.2016 Privilege Vintage Sdn Bhd 10,000 1% 25.04.2019 Privilege Vintage Sdn Bhd 90,000 1% S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 27.12.2016 Yoke Hoh Sdn Bhd 430,001 5% [11] After the individual defendants joined the Plaintiff’s business, except for Shandy, the rest were appointed directors at various times as follows: Director Company Date of Appointment Sampson (D1) Prospell Enterprise Sdn Bhd 1.6.2012 Yoke Hoh Sdn Bhd 27.12.2016 Looh Oil Refinery Sdn Bhd 18.3.2013 Sim Lim Plantations Sdn Bhd 26.10.2007 Mestika Cemerlang Sdn Bhd - Galaxy Attraction Sdn Bhd - Privilege Vintage Sdn Bhd 19.11.2018 Georgetown Specialist Centre Sdn Bhd 22.1.2019 Seatex Plantations Sdn Bhd - Bill (D2) Prospell Enterprise Sdn Bhd 23.1.2017 Yoke Hoh Sdn Bhd 10.10.2006 Looh Oil Refinery Sdn Bhd 9.3.2020 Sim Lim Plantations Sdn Bhd - Mestika Cemerlang Sdn Bhd - Galaxy Attraction Sdn Bhd 24.12.2007 Privilege Vintage Sdn Bhd - Georgetown Specialist Centre Sdn Bhd 28.2.2019 Seatex Plantations Sdn Bhd 10.10.2006 Carmen (D3) Prospell Enterprise Sdn Bhd 11.4.2017 Yoke Hoh Sdn Bhd 27.12.2016 Looh Oil Refinery Sdn Bhd 18.7.2014 Sim Lim Plantations Sdn Bhd - Mestika Cemerlang Sdn Bhd - S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 Galaxy Attraction Sdn Bhd - Privilege Vintage Sdn Bhd - Georgetown Specialist Centre Sdn Bhd 17.4.2019 Seatex Plantations Sdn Bhd - Nathan (D4) Prospell Enterprise Sdn Bhd - Yoke Hoh Sdn Bhd - Looh Oil Refinery Sdn Bhd 9.3.2020 Sim Lim Plantations Sdn Bhd - Mestika Cemerlang Sdn Bhd - Galaxy Attraction Sdn Bhd - Privilege Vintage Sdn Bhd - Georgetown Specialist Centre Sdn Bhd - Seatex Plantations Sdn Bhd 4.7.2011 [12] The Individual Defendants, in various combinations, presently control the 6th to 14th (except the 10th to 12th) Defendants at the Board and/or shareholder levels. [13] It is not in dispute that the Plaintiff had a relationship of trust and confidence with the Individual Defendants, being his children and close kin. [14] In this case, the octogenarian Plaintiff claims that all the shares in the name of the Individual Defendants are held on trust. He never intended to give the shares to them. The Individual Defendants on the other hand claims that the Plaintiff has given away 70% of his wealth to them. [15] The amended defence in essence states that: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 15.1 the Plaintiff has never alleged that shares held in the Individual Defendants' names were beneficially owned by him or held on trust for him, 15.2 for the 7th Defendant (Yoke Hoh) only, the shares were transferred to the relevant Individual Defendants for their "contributions"; 15.3 a presumption of advancement / gift arises in relation to all the shares transferred to the Individual Defendants by or at the behest of the Plaintiff. [16] The parties’ respective claims were for the full beneficial interest of 70 % of his wealth, and nothing in between. Burden of proof [17] It is trite law that the Plaintiffs, have both the “burden of proof” to make out a prima facie case as well as the initial onus of proof to adduce evidence to prove their claim. The onus of proof would only shift to the Defendants if the Plaintiffs have made out a prima facie case. See for e.g., the Federal Court decision in Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697; [2017] 5 CLJ 418 where Jeffrey Tan FCJ held that: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 “[56] Thus a plaintiff has both the burden of proof as well as the initial onus of proof. In Britestone Pte Ltd v Smith & Associates Far East, Ltd [2007] 4 SLR 855, the Singapore Court of Appeal per VK Rajah JCA, delivering the judgment of the court, explained that at the start of the plaintiff’s case the burden of proof and the onus of proof coincide: … at the start of the plaintiff’s case, the legal burden of proving the existence of any relevant fact that the plaintiff must prove and the evidential burden of some (not inherently incredible) evidence of the existence of such fact coincide. Upon adduction of that evidence, the evidential burden shifts to the defendant, as the case may be, to adduce some evidence in rebuttal. If no evidence in rebuttal is adduced, the court may conclude from the evidence of the defendant. If, on the other hand, evidence in rebuttal is adduced, the evidential burden shifts back to the plaintiff. If, ultimately, the evidential burden comes to rest on the defendant, the legal burden of proof of the relevant fact would have been discharged by the plaintiff. The legal burden of proof — a permanent and enduring burden — does not shift. A party who has the legal burden of proof on any issue must discharge it throughout. Sometimes, the legal burden is spoken of, inaccurately, as ‘shifting’; but what is truly meant is that another issue has been engaged, on which the opposite party hears the legal burden of proof. [57] The rule is that ‘the onus of proof of any particular fact lies on the party who alleges it, not on him who denies it; et incumbit probation qui decit, non qui negat, Actori incibit probation … The plaintiff is bound in the first instance, to show a prima facie case, and if he leaves it imperfect, the court will not assist him. Hence the maxim Potior est condition defendantis. A plaintiff cannot obviously advantage himself by the weakness of the defence. A plaintiff’s case must stand or fall upon the evidence adduced by him. When, however, the defendant, or either litigant party, instead of denying what is alleged against S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 him, relies on some new matter which, if true, is an answer to it, the burden of proof changes sides; and he, in his turn, is bound to show a prima facie case at least and, if he leaves it imperfect, the court will not assist him. Reus excipendo fit actor’ (Woodroffe and Amir Ali, Vol 3 at pp 3190- 3191)..” [18] In the case of Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61, the Federal Court held: “Sections 101, 102, 103 and 106 of the Evidence Act 1950 deal with the burden of proof. Under s 101, it is provided that whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. Under s 102 the burden of proof lies on that person who would fail if no evidence at all were given on either side. Under s 103, the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Under s 106, when any fact is especially within the knowledge of any person the burden of proving that fact is upon him.” [19] In Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1, the Federal Court has pronounced the position of the law on the standard of proof on fraud in civil cases is that on balance of probabilities at para 49 of the judgment: “… that at law there are only two standards of proof. namely, beyond reasonable doubt for criminal cases “while it is on the balance of probabilities for civil cases. As such even if fraud is the subject in a civil claim the standard of proof is on the balance of probabilities. There is no third standard. ….” S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 The Principal Issue [20] In the tussle over the shares, the Plaintiff says that all the shares in the name of the Individual Defendants are held on trust and he never intended to give it to them but the Individual Defendants posit 70% of the Plaintiff’s wealth was given to them. This action thus raised squarely the question of whether as a matter of fact and law, there exists an express trust or a resulting trust. This pivots on the Plaintiff as transferor’s actual intention which is very fact sensitive. This intention can be direct evidence or inferred from all available evidence, including that of the Plaintiff’s conduct. [21] The Court of Appeal in ESPL (M) Sdn Bhd v Radio & General Engineering Sdn Bhd [2005] 2 MLJ 422 at [19], [24]; Ikumi Terada v Jemix Co Ltd & Ors And Another Appeal [2019] 1 LNS 881 at [38]; Pembinaan Lagenda Unggul Sdn Bhd v Geohan Sdn Bhd [2018] MLJU 196 at [96] & [97] pronounced to the effect that whether there is intention to create a trust can be determined from all the evidence before the Court. [22] If the merits are with the Plaintiff, then he will succeed otherwise his claim will be dismissed. The law on resulting and constructive trusts [23] As the subject matter involves a trust, it will thus be convenient to say a few words about the subject. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 [24] The Federal Court explained how trusts are created in Geh Cheng Hooi & Ors v Equipment Dynamics Sdn Bhd and other appeals [1991] 1 MLJ 293: "Trusts are either (i) express trusts, which are created expressly or impliedly by the actual terms of some instrument or declaration, or which by some enactment are expressly imposed on persons in relation to some property vested in them, whether or not they are already trustees of that property; or (ii) trusts arising by operation of law (other than express trust imposed by enactments) (see para 523 of 48 Halsbury's Laws of England (4th Ed)). Trusts arising by operation of law could be constructive and resulting trusts. Although we would agree with the view that a trust should not normally be imported into a commercial relationship, yet we would hold that in cases such as those involved in these appeals the court could and should consider the facts to determine whether a fiduciary relationship existed. We therefore agreed with Mr Wong that in the present cases we must consider the circumstances concerning the relationship between the parties. We were satisfied and agreed with the learned judge that in the circumstances agreements themselves do not contain an express clause that the proceeds of sale would be held on trust, as it is clearly manifested in the agreements and the correspondence concerned that it was the intention of the parties that the Emporium or its outlets as licensors should, after deduction of the fees and commissions agreed to be paid to them, make over to the concessionaires or consignors all payments by third customers. We also agreed with the learned judge and Mr Wong that the principle in Re Hallet's Estate should be applied to these cases and that the cash found in the tills of the various outlets and in the bank accounts as at 10 March 1987, are the subject matter of a trust or several trusts in favour of the concessionaires and consignors who can therefore trace the money there as well as to the proceeds of the sale to Inview Sdn Bhd.” S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 [25] Geh Cheng Hooi made clear that: 25.1 trusts can arise by operation of law, that is, either a resulting trust or constructive trust; 25.2 the court needs to consider the relationship between the parties to determine whether there is a trust; 25.3 it is not necessary to have an express clause with the word trust in it as long as the correspondence or agreement concerned manifest an intention to create a trust. [26] The Supreme Court in Yeong Ah Chee @ Yan Hon Wah v Lee Chong Hai & Anor & 13 Other Appeals [1994] 2 MLJ 614 at pg 624; [1994] 3 CLJ 20 at p 26, explained the 3 essential elements before a valid trust is said to exist: “The 3 essentials of a valid trust are (a), certainty of words (b), certainty of subject and (c) certainty of object.” [27] These 3 certainties were also discussed in Fawziah Holdings Sdn Bhd v Metramac Corporation Sdn Bhd & another Appeal [2006] 1 CLJ 996 where the Court of Appeal said: “[59] The law governing the certainty of a trust is that laid down by Lord Langdale MR in the seminal case of Knight v. Knight [1840] 49 ER 68. There it was held that for a trust to be certain three requirements must be fulfilled. First, there must be certainty of intention. Second there must be certainty of subject matter: both in terms of the corpus and the beneficial interest. Third, S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 there must be certainty of the objects of the trust. A trust is void if there is uncertainty in any of these three elements”. [28] A resulting trust gives effect to the parties implied or presumed intention. The Federal Court explained what is a resulting trust in Takako Sakao (P) v Ng Pek Yuen (P) & Anor [2009] 6 MLJ 751; [2010] 2 AMR 609 when referring to Westdeutsche Landesbank Girozentrale v Islington LBC [1996] AC 669 in the following words: "The device of a resulting trust was invented by the Court of Chancery to give effect to the implied intention of parties in relation to the acquisition and disposal of moveable or immovable property. Both types of resulting trust are traditionally regarded as examples of trusts giving effect to the common intention of the parties. A resulting trust is not imposed by law against the intentions of the trustee (as is a constructive trust) but gives effect to his presumed intention." [29] The oft-cited quote of Lord Browne-Wilkinson case of Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669, 708, explained the circumstances in which a resulting trust may arise as follows: “Under existing law a resulting trust arises in two sets of circumstances: (A) where A makes a voluntary payment to B or pays (wholly or in part) for the purchase of property which is vested either in B alone or in the joint names of A and B, there is a presumption that A did not intend to make a gift to B: the money or property is held on trust for A (if he is the sole provider of the money) or in the case of a joint purchase by A and B in shares proportionate to their contributions. It is important to stress that this is only a S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 presumption, which presumption is easily rebutted either by the counter- presumption of advancement or by direct evidence of A’s intention to make an outright transfer: see Underhill and Hayton pp. 317ff, Vandervell v. IRC [1967] 1 All ER 1 at 8,; [1967] 2 AC 291 at 312ff and Re Vandervell’s Trusts (No 2), White v. Vandervell Trustees Ltd [1974] 1 All ER 47 at 63ff,; [1974] Ch 269 at 288ff. … Both types of resulting trust are traditionally regarded as examples of trusts giving effect to the common intention of the parties. A resulting trust is not imposed by law against the intentions of the trustee (as is a constructive trust) but gives effect to his presumed intention…” (emphasis added) [30] The Court of Appeal case of in Goh Jui Leang v Tay Sing Hwa [2018] 1 LNS 828 cited with approval Lord Browne-Wilkinson’s dicta: “[38] A resulting trust is an implied trust by operation of law and is meant to restore or to jump back the equitable interest in property to its original beneficial owner. The nature is not based on the actual intention of the parties. However, it comes from the rising of presumed intention. Reference can be made in the case of Westdeutche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 where House of Lords sets out two situations: (i) Situation in which a person makes a contribution to the purchase price of property (ii) Situation in which the settlor has failed to explain the allocation of equitable interest in the property. [39] The case of Megarry J in Re Vandervell’s Trust [1974] Ch 269 suggested that there are two type of resulting trust: (i) Presumed resulting trust (ii) Automatic resulting trust S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 [40] A presumed resulting trust is made in or a transfer is made into the name of another person without any express trust being constituted. There is a presumption that the other holds property in question on resulting trust for the real purchaser or the transferor. In other words, it is created by implication as the result of a purchase in or transfer into the name of another.” (emphasis added) [31] In the case of Lin Ah Moy v Lee Cheng Hor & Anor [1970] 2 MLJ 99, the Federal Court held that inadequacy of consideration is evidence of the transferee holding the shares on resulting trust to the transferor: “…There was ample evidence for the learned trial judge to come to the conclusion that the transfers were made in trust. As regards the transfers of the 300 shares, which are the subject matter of this dispute, the learned trial judge, having seen and heard the witnesses, made a finding that there was no consideration for this transfer. Moreover, even assuming that there was consideration given by the appellant, surely inadequacy of the consideration, which was abundantly clear on the evidence, would be some evidence of a resulting trust. There can certainly be no question of a presumption of advancement in the case of a transfer from a brother to a brother or from a brother to his brother's wife. That, in our judgment, was a sufficient answer to the fifth ground of appeal that a transfer without consideration is incapable of establishing the existence of a resulting trust. It is exactly in those circumstances that the court must find a resulting trust in favour of the original transferor. It is true that a transfer without consideration creates a rebuttable presumption of a resulting trust. Was this presumption rebutted on the evidence? In our judgment, it was not. That disposed of the sixth ground of appeal.” S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 Constructive trust [32] In Takako Sakao supra, Gopal Sri Ram FCJ, one of Malaysia’s eminent jurists explained the concept and application of a constructive trust thus: [13] … Traditionally, courts have declined to provide a definition of a constructive trust. As Edmund Davies LJ said in Carl Zeiss Stiftung v Herbert Smith & Co [1969] 2 Ch 276 at p 300: English law provides no clear and all-embracing definition of a constructive trust. Its boundaries have been left perhaps deliberately vague, so as not to restrict the court by technicalities in deciding what the justice of a particular case may demand. But it appears that in this country unjust enrichment or other personal advantage is not a sine qua non. Thus in Nelson v Larholt [1948] 1 KB 339, it was not suggested that the defendant was himself one penny better off by changing an executor's cheques; yet, as he ought to have known of the executor's want of authority to draw them, he was held liable to refund the estate, both on the basis that he was a constructive trustee for the beneficiaries and on a claim for money had and received to their use. Nevertheless, the concept of unjust enrichment has its value as providing one example among many of what, for lack of a better phrase, I would call 'want of probity', a feature which recurs through and seems to connect all those cases drawn to the court's attention where a constructive trust has been held to exist. [14] In Paragon Finance plc v DB Thakerar & Co [1999] 1 All ER 400, Millett LJ (later Lord Millett) explained the concept of a constructive trust in terms that is difficult to improve: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 A constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of property (usually but not necessarily the legal estate) to assert his own beneficial interest in the property and deny the beneficial interest of another … [33] The Takako Sakao principle that that the constructive trusts arise by operation of law when unconscionable or wrongful conduct is demonstrated was cited with approval by subsequent cases of the Federal court such as: 33.1 Perbadanan Kemajuan Pertanian Selangor v JW Properties Sdn bhd [2017] 8 CLJ 392 at [58] and [59]: "[58] From decided case authorities it has been established as a principle of law that constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of the property (usually but not necessarily the legal owner) to assert his own beneficial interest in the property and deny the beneficial interest of another. (See the cases of (1) Takako Sakao v. Ng Pek Yuen & Anor. [2010] 1 CLJ 381; [2009] 6 MLJ 751 (FC) and (2) Vellasamy Pennusamy & Ors. v. Gurbachan Singh Bagawan Singh & Ors. [2012] 2 CLJ 712; [2010] 5 MLJ 437 (CA)). [59] It has also been held that a 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. (See the case of Hassan Kadir & Ors. v. Mohamed Moidu Mohamed & Anor. [2011] 5 CLJ 136 (FC)). A constructive trust is a remedial device that is employed to prevent S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 unjust enrichment. It has the effect of taking the title to the property from one person whose title unjustly enriches him, and transferring it to another who has been unjustly deprived of it. (See the case of Tay Choo Foo v. Tengku Mohd Saad Tengku Mansur & Ors. And Another Appeal [2009] 2 CLJ 363; [2009] 1 MLJ 289 CA)." 33.2 In Datuk M Kayveas v See Hong Chen & Sons Sdn Bhd & Ors [2014] 4 MLJ 64, the Federal Court elucidated: “[32] A trust is an obligation enforceable in equity, which rests on a person as owner of some property, for the benefit of another or for the advancement of certain purposes (Principles of the Law of Trusts by HAJ Ford and WA Lee). As distinct to a trust for a purpose, a beneficial owner may enforce it by a suit as in the current case. Equity, which was historically dispensed by the Chancery Court, and against his person (i.e. in personam) now compels the trustee to administer the trust in accordance with his conscience, with even a possible sanction of imprisonment until he has made good the loss caused to the trust property. On the issue of restitution, Lord Denning MR in Hussey v Palmer [1972] 3 All ER 744 had occasion to say at p 747: Although the plaintiff alleged that there was a resulting trust, I should have thought that the trust in this case, if there was one, was more in the nature of a constructive trust … By whatever name it is described, it is a trust imposed by law whenever justice and good conscience require it. It is a liberal process, founded on large principles of equity, to be applied in cases where the defendant cannot conscientiously keep the property for himself alone, but ought to allow another to have the property or a share in it. The trust may arise at the outset when the property is acquired, or later on, as the circumstances may require. It is an equitable remedy by which the court can enable an aggrieved party to obtain restitution. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 [38] From the various opinions above it may be construed that a constructive trust arises by operation of law irrespective of the intention of the parties, in circumstances where the trustee acquires property for the benefit of the beneficiary, and making it unconscionable for him to assert his own beneficial interest in the property and deny the beneficial interest of another. Being bereft of any beneficial interest, and with equity fastened upon his conscience, he cannot transfer any interest to himself let alone a third party. If he does, then a constructive trust comes into existence. An aggrieved party, by equitable remedy, may demand restitution of the property if he has been deprived of his beneficial interest.” (emphasis added) 33.3 Recently in Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67: [111] It is trite law that the intention to create a trust is applicable in situation of express trusts and not in constructive trusts. A constructive trust are trusts that may be implied in the absence of any declaration/intention of a trust, where the trustee has induced another to act to their detriment they would acquire a beneficial interest in the land/property. A characteristic feature of this trust does not owe its existence to the parties’ intention, but by operation of law. In Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751, it was held that: A constructive trust is imposed by law irrespective of the intention of the parties. And it is imposed only in certain circumstances, e.g. where there is dishonest, unconscionable or fraudulent conduct in the acquisition of property. What equity S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 does in those circumstances is to fasten upon the conscience of the holder of the property a trust in favour of another in respect of the whole or part thereof. [112] Constructive trust is viewed as a device under which equity will intervene so as to create a trust relationship between the parties in order to make a person accountable for the trust to prevent any unfairness or injustice. Equity will impose obligation on the defendant to hold the property for the benefit of another. [34] Bogert on Trusts 6th Edition, page 287, Sec. 77 states: “Constructive trusts do not arise because of the expressed intent of a settlor. They are not “intent-enforcing” trusts, but in a general way may be called “fraud-rectifying” trusts, if the word “fraud” is used in the sense of any kind of wrongdoing and not confined to an intentional false representation. It would seem preferable to treat these trusts as created by courts of equity, rather than to regard them as being brought into being as a result of acts of the parties. Whenever equity finds that one has title to property, real or personal, originally acquired by any kind of wrongdoing or, although innocently obtained, now held under such circumstances that retention of the title will result in unjust enrichment, equity may declare such title-holder to be the trustee of a trust constructed by it for the purpose of working out justice, which is merely a convenient means of remedying a wrong. It is not a trust in which the trustee is to have duties of administration lasting for an appreciable period of time, but rather a passive, temporary trust, in which the trustee’s sole duty is to transfer the title and possession to the beneficiary. The decree establishing the constructive trust amounts to a holding that the defendant ought to be treated as if he had been a trustee for the plaintiff from the time the defendant began to hold the property unconscionably. The S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 constructive trust does not exist merely because of the wrongful holding, but requires a court decree for its origin and this decree is retroactive in effect to the date when the unlawful holding began.” [35] The following excerpt from Halsbury's cited in Tay Choo Foo v Tengku Mohd Saad Tengku Mansur & Ors And Another Appeal 2009] 1 MLJ 289; [2009] 2 CLJ 363 sums up the concept and application of constructive trusts: [93] On constructive trusts, Halsbury’s Laws of England (4th Ed - Reissue) Vol 48 at pp 301–306 reads as follows: Nature of constructive trust. A constructive trust attaches by law to specific property which is neither expressly subject to any trusts nor subject to a resulting trust but which is held by a person in circumstances where it would be inequitable to allow him to assert full beneficial ownership of the property. Such a person will often hold other property in a fiduciary capacity and it will be by virtue of his ownership of or dealings with that fiduciary property that he acquired the specific property subject to the constructive trust. A stranger who receives property in circumstances where he has actual or constructive notice that it is trust property being transferred to him in breach of trust will, however, also be a constructive trustee of that property. A person who holds property on a constructive trust is a constructive trustee in respect of it. He cannot claim for himself any increase in value of the property or any profits earned by it. If he becomes bankrupt, the property is not available for his general creditors but for the beneficiaries in whose favour the constructive trust subsists." S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 Analysis and findings [36] I now turn to the evidence. I should at the outset state that the Individual Defendants’ assertion at paragraph 3.105 of their post trial submissions that prior to CS Hee & Co’s letter dated 1.3.2022, the Plaintiff never claimed the shares were held on trust for him is not true. Firstly, it is clear from the transcript of the Hospital recording on 10.12.2020 read as a whole for context, that the Plaintiff has asserted the shares are held on trust. The Plaintiff had also asserted that the 70% shares in Prospell in the names of Sampson Looh, Bill Looh and Carmen Looh were meant for the “11 people”. Secondly, the Individual Defendant’s said assertion is also contradicted by Q& A 52 – Nathan’s Main Witness Statement; Q& A 99 – Carmen’s Main Witness Statement; Q& A 92 – Bill’ s Main Witness Statement that on 25.12.2021, during the family Memorial Day (interchangeably “Bahau Meeting”), the Plaintiff had demanded that Carmen, Bill and Nathan return their shares and acknowledge in writing they are his trustees of his shares. [37] To establish a resulting trust, the Plaintiff will need to show that the Individual Defendants did not pay for the shares transferred or allotted to them, and that he had no intention of gifting the shares to the Individual Defendants which the Individual Defendants rely on as proof that the Plaintiff had no such intention. [38] In Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751, where Gopal Sri Ram FCJ held: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 [17] When A purchases Blackacre in B's name, providing, let us say, the whole of the purchase price, equity presumes that the common intention of the parties is for B to hold Blackacre on a trust that results to A. This is referred to as a presumed resulting trust. That a trust should result to A is fair and just because A provided all the money and B provided nothing. But if A is B's husband, parent or guardian or otherwise stands in loco parentis to B, then equity presumes that the common intention of the parties is to make a gift of Blackacre to B. This is referred to as the presumption of advancement. However, as the Court of Appeal pointed out in Heng Gek Kiau v Goh Koon Suan [2007] 6 CLJ 626 the correct approach to cases where a gift is asserted is: … for a court first to determine the true intention of the purchaser. The question whether the purchaser in a particular case had a donative intention is to be determined objectively through a meticulous examination of the facts and evidence of the surrounding circumstances. If after such an examination the court concludes that there was a donative intention on the part of the purchaser that is the end of the matter and there is no room for the operation of the presumption of resulting trust or advancement as the case may be. It is only where there are no or insufficient facts or evidence from which a fair inference of intention may be drawn that a court should turn to presumptions as a last resort to resolve the dispute. In arriving at this conclusion the Court of Appeal in that case applied with approval the following passage in the judgment of Gabriel Moss QC (sitting as a Deputy High Court judge) in Kyriakides v Pippas [2004] EWHC 646 (Ch) which we also regard as being good law: Where there is no declaration (of intention), the court puts itself in the position of a jury and considers all the circumstances of the case, so as to arrive at the purchaser's real intention: Snell paras 9–15. It is only where there is no evidence to contradict the S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 presumption that it will prevail: ibid. The case law has developed in such a way that even 'comparatively slight evidence' will rebut the presumption and a 'less rigid approach should also be adopted to the admissibility of evidence to rebut the presumption of advancement': Lavelle v Lavelle [2004] EWCA Civ 223 (CA) per Lord Phillips MR at para 17. I suspect the position we have now reached is that the courts will always strive to work out the real intention of the purchaser and will only give effect to the presumptions of resulting trust and advancement where the intention cannot be fathomed and a 'long-stop' or 'default' solution is needed. [39] I take note that the Individual Defendants have relied on the presumption of advancement arising out of the close relationship of father and children. The presumption of advancement no doubt gave the Individual Defendants as recipient of the shares an advantage which, if not negated, will operate to form the basis of proof. However, this was not a case where the parties were not present to give evidence of their intentions. In this significant aspect, I agree that the presumption of advancement only comes into play if the Plaintiff’s intention cannot be discerned from the evidence and the authorities cited by the parties are to be distinguished in this respect. The Plaintiff here although elderly, sickly and testified from hospital numerous days and in the course of trial, had his legs amputated, has the mental faculties or clarity of mind to provide the court with useful evidence of his intentions and personal knowledge. He had defended the presumption of advancement on the basis that he was still competent to testify as to his intentions regarding the transfer which was to create a trust or to retain the S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 beneficial interest in the shares of his companies. Unless supported by objective evidence, the presumption of advancement will not be given greater weight. [40] In assessing the Plaintiff’s evidence, I will at the outset declare that I agree with the Plaintiff’s counsel that more latitude should be given to vulnerable witnesses with medical conditions such as the Plaintiff, especially when evidence was being given through a translator - see Zung Zang Wood Products Sdn Bhd & Ors v Kwan Chee Hang Sdn Bhd & Ors [2012] 5 MLJ 319, where the Court of Appeal made the following observation about a similarly elderly and infirm witness: [59] We note, as the JC has noted, that the father was 81 years old at the time of the trial. He was frail looking and sickly. He attended each and every sitting of the trial to complete his evidence. Being the founder of the family business, he brought Mathew into the family business. He gave Mathew an overseas education and credited him with a Master's degree in Business Administration, besides substantial shares in the family business. He appointed Mathew to manage all the family companies. The JC also observed the father's demeanour, anger, disappointment and bitterness at being cheated by Mathew. He found the father to be honest and straightforward witness, albeit a bit inconsistent due to his memory lapse, confusion, old age and ill health. There was no reason for the father to lie at all, especially at his advanced age and poor health. Plaintiff’s evidence [41] The Plaintiff, as a traditional Hakka man, is a firm believer in certain core values which he tried to impart to his children. These values included S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 unity within the family, fairness, equality, and the preservation of wealth. All the Individual Defendants agreed that they too believed in these values. The Plaintiff's vision and fervent wish was for his assets, which he accumulated over 50 years, to be passed down through the generations for at least 50 years. The thought of breaking up his assets for distribution was odious to him. Witness statement PW1A 70. Q: Could you please tell this Honourable Court your family values? A: 70.1 First and foremost, I value unity within my family. I do not like my family to be divisive. 70.3 Due to my values and belief in family unity, I never intended to divide my assets. I am mindful that for a family with multiple wives and children, a division of assets is akin to a division of the family. This happens to a lot of the tycoons. I do not want that to happen to my family. Also, it is “pantang” (against my superstitious belief) to talk about division of my assets during my lifetime. 70.4 I am also mindful that having 3 wives and our respective children, I in fact have 3 families. I have strived and endeavoured to treat all my children in my 3 families equally and fairly to promote unity amongst them all. For instance, I took all of my children into my companies. I believe that by treating everyone equally, there will be less chance for disputes. They will be able to stay united and preserve the family wealth. 70.5 I have also imparted the values of fairness and equality in my children. In this regard, I often reminded Ah Wen, as my eldest son, to set an example by practising fairness and equality in his dealings with his siblings. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 70.6 I have a vision of having my wealth preserved and lasting for generations of my family, that is for 50 years with an option to extend for another 50 years. It is my wish that the welfare and interest of generations of my family (including education) will continue to be provided for and supported even after I am gone, just like how I have continuously provided for and supported my parents, my siblings, my wives and my children. I also believe in giving back to society, hence I wish to also contribute to charity using my assets. 70.7 I know this is a challenge given the Chinese saying that the wealth and/or legacy built by the 1st generation does not last past the 3rd generation. As such, I have sought and strived to ensure that my wealth and legacy would sustain and endure within the Looh family by a fair distribution of my wealth amongst my family members. I believe that fair treatment will promote unity and harmony amongst my family members, which can in turn can promote enduring prosperity. [42] These values of fairness, equality, unity, preservation of wealth imparted by their father the Plaintiff was candidly admitted by Sampson and Carmen Looh during cross-examintaion and both further testified they each believe in those values. [43] The Plaintiff testified that he personally acquired and funded the acquisition of all the substantial assets associated with his empire, which began in around the 1970’s. This was not challenged during cross- examination of the Plaintiff. Sampson Looh (DW1), Bill Looh (DW2) and Nathan Looh (DW4) confirmed that no substantial assets have been added to the Plaintiff’s empire by the Individual Defendants. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 [44] P also testified that he was the boss in the family business, he was the primary decision maker; he made all of the major decisions, including the acquisition of lands and properties and the price thereof, the acceptance of any financing, the charging of his assets or his companies’ assets to the financiers, fixing of salaries of the management personnel, and more. Particularly when it comes to any financial matters, he is the one calling the shots. He brought his family members into his companies, including his younger brothers, brother in laws and children because he trusted them to build his business empire with him. He testified that he brought his children into the family business to train them and provide them a living whilst they gained experience and contacts. He did this for each of his children, and if they left the family business to start their own ventures, he was happy for them and wished them well. Shares that were in their names were transferred back to the Plaintiff or his nominated transferee whenever required by the Plaintiff. [45] He adduced evidence to show due to his illiteracy and lack of formal education, he was required to rely on and trust, those who assisted him in his work and business dealings and was, in this sense, vulnerable. These trusted persons were mainly the Plaintiff's family members, although there were also several individuals, not of the family, who he relied on to get work done. These included, the late Tun Ninam Shah, a friend of the Plaintiff’s; Noorazman, his employee; and Wong Nam, his estate manager.: 21. Q: That brings us to the 1990s. Could you tell this Honourable Court more about your other business ventures in the 1990s? S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 A: 21.3 I recall having placed some of my trusted employees and friends in Prospell since the beginning of Prospell to either hold shares or directorships or both on my behalf. Such persons include, for instance:- i. the late Tun Ninam Shah, who was my friend; ii. Noorazman, who helped me to liaise with the Selangor State Government at that time; and iii. Wong Nam, who was my estate manager based in Bahau at that time and had been working for me since my 30s. He is my 1 st ever estate manager. [46] It is not in dispute that the Individual Defendants were involved and had employment in the Plaintiff's business in its later years, beginning with Bill Looh (DW2) in 2004. It is also not in dispute that the Plaintiff had a relationship of trust and confidence with the Individual Defendants, being his children and thus, close kin: 46.1 Under cross-examination: LR Can I refer you to ID85, Dato’, page 8? This is a members’ written resolution of Yoke Hoh dated 23.6.2017. Can we go to the body of the resolution, Dato’? Can I put it to you this resolution shows Ah Peng, Ah Wei, Pik Loo, Jit Siang and Loo Yi, as shareholders of Yoke Hoh, approved, amongst others, the execution of a 3 rd Party charge by Yoke Hoh in favour of Bank Pertanian Malaysia Berhad for banking facilities granted to Prospell. PW1 If the signing is for the use of the estate, then the signing and all, it was only me, Ah Hoi and Ah Peng only. If there is S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 going to be any signing, I should be the one who signing as a chairman. How to believe them? They only taking salaries from me, you think lah. Because last time, they said they can do it online, can go online. And then I said can do online. TRANSL Then witness said – PW1 Last time asked me to come and sign – TRANSL And then witness said – PW1 I also don’t know. I wouldn’t be giving to them. Because now for signing, now you ask me to come and sign, so the best, my lawyer has to be in there, then only I know what is he telling me to sign. Last time was different, I trusted my son and daughter. Now, everything must let the lawyer see first. Then only I can understand and then lawyer ask me to sign, then I sign. 46.2 In his witness statement WSPW1A: 57. Q: What were the considerations which you took into account in deciding who to name as the registered directors and shareholders in your companies? A: 57.1 The primary consideration is trust and loyalty. I would only name myself or persons whom I trusted at that time as the registered directors and shareholders in my companies. For instance, my wives, my siblings and in laws, my children and some of my loyal employees. 59. Q: Why does it not matter to you who are the named directors and shareholders of your companies? S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 A: 59.1 This is because it is known that the shares in the companies are mine. The named directors and shareholders of my companies were or are nominal only. They were or are merely there to represent me and they hold shares for my benefit. 59.2 Further, these persons would be persons whom I trusted at that time and would do what I instruct them to do. 60. Q: How would such named directors and shareholders of your companies know that they were or are nominal only? A: 60.1 I would have told them personally or through whoever that was handling the paperwork in respect of naming of registered directors and shareholders that these companies are mine. The fact that the companies are mine is obvious because:- i. I paid for everything in my companies; ii. I was the ultimate decision maker; and iii. such named shareholders did not pay for any shares registered in their names. 60.3 Further, I never told any of such named directors and shareholders that I gave them the shares in my companies as gifts. Everyone in my family knows that I am against the idea of dividing my assets, and I have previously mentioned that there will not be division or gifting of assets unless I expressly say so. As such, such named directors and shareholders would know that they were and are merely nominal. 60.4 In addition, if I truly intended to give the shares to such named shareholders as a gift instead of on a nominal basis, I would have mentioned it to my family. For example, I gifted 8 S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 shop lots in Taman Pelating, Bahau to some of my family members, including my wives, my siblings and my children. I mentioned this openly to my family members and many are aware of this. 62. Q: Why do you not deemed such documents in writing to be necessary for your family members? A: 62.1 All this while until the filing of this suit, all the named directors and shareholders of my companies who are my family members recognised that the companies are mine, and that they were or are merely representing me and holding shares for my benefit. They have been carrying out my instructions for decades without any issue. Essentially, I operated based on trust and belief. This is known to all. After all, they are my family members. Hence, I did not see any need to draw up any documents in writing before this. 46.3 Witness statement PW1B: 14. Q: Please refer to answer 56.1 of your Earlier Witness Statement where you mentioned that you decided and have control over who to name as the registered shareholders in your companies. Who decided on the shareholding of the registered shareholders? A: 14.1 I also decided and controlled the percentage of shares to put in the name of the registered shareholders. This has been my practice until sometime after Ah Peng started working in my companies, where I left it to Ah Peng to decide the percentage of shares to put in the names of the registered shareholders and to S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 report to me after he decided on the shareholding, because I trusted Ah Peng at that time. 14.2 2 I also trusted that Ah Peng would report to me of the decision he made on the percentage of shares as I have told him to so report. Further, Ah Peng knew full well of my practice in having nominees to hold shares on my behalf so I trusted that he would decide the shareholding of the nominees properly. In fact, Ah Peng once told me that he would act in the best interests of me and my family as he knew that the shares in his name was for the benefit of me as his beloved father and the family as a whole 46.4 In cross-examination, Sampson Looh (DW1) admitted: GS Right. Now, taking all of that into consideration, up until you have fallen out with your father, would it be fair to say that you trusted him? DW1 Yes. GS Yes, and would you say that he also trusted you? DW1 Yes. 46.5 His older brother, Bill Looh (DW2) also accepted: RL And would it be a fair statement to say that at least before this dispute started, your father trusted you? DW2 Yes. 46.6 Their half-sister, Carmen Looh (DW6) agreed: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 36 GS And would you say, and would you accept that he had trust in you? DW6 Yes. 46.7 Their sister, Shandy Looh (DW3) agreed: RL I’m going to suggest to you, as father and daughter, you have a special relationship with your father. Therefore, you owe him a duty to explain things to him properly. DW3 Yes, I do owe him explanation 46.8 Their youngest brother, Nathan Looh (DW4) recognised the special relationship although he disagreed as to the duty that came with it: RL It’s one question. Never mind, you say two. So, you agree that you have a special relationship with your father, being father and son? DW4 Yes. RL Because of that special relationship, I’m going to suggest to you that you owe him a duty to explain things to him properly. DW4 Duty to explain things? I don’t think so. RL And also because of that special relationship, you owe your father a duty to also explain to him properly all documents which he signs. DW4 I disagree. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 37 [47] That the Plaintiff was in control and the decision maker in the companies was unshaken during cross-examination and 7 of his family members PW2 to pW8, who at various times were either employed by the Plaintiff or held shares and directorships at the Plaintiff’s behest, gave consistent evidence that that the shares they had in the Plaintiff's companies were at all times held on trust for him. he is the boss and they follow his instructions. and each of them who had been a shareholder returned the shares when asked to by the Plaintiff; if they had been directors, they resigned at his request. The family members other than the 5 individual Defs who had been shareholders and directors in the P’s companies included: 47.1 Liong Kiu and Dr Liong, the Plaintiff’s brothers; 47.2 Lang Tuang Mauh and Lim Meow Fook, the Plaintiff’s brothers-in-law; 47.3 Admund Looh (PW7, Michael Leong, Jenny Looh, and Desmond Looh, the Plaintiff’s children from the 1st and 2nd families; and 47.4 Chan Chung Yen, the Plaintiff’s daughter-in-law. [48] Notably, some of these family members individuals including Admund Looh (PW7), Michael Leong, Dr Liong (PW8), Desmond Looh (PW6), Chin Yew Lian (the Plaintiff's second wife and Carmen Looh's mother and some who were not including the late Tan Peck Soo, who was the General Manager of the Plaintiff's group of companies also became S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 38 guarantors for loans that the companies took, yet none of them asserted ownership or management rights. Chan Chung Yen (PW4), Liong Kiu (PW5) and Desmond Looh (PW6) for instance in evidence, testified when asked to do so by the Plaintiff, the transfers they effected for shares held in their names was because the Plaintiff was the true and beneficial owner of the shares. Dr Liong, Tan Peck Soo and Admund Looh also became guarantors for loans taken by the companies without becoming shareholders in their own right in those companies. None of these family members paid for the shares nor received any consideration when they returned or transferred the shares to another at the Plaintiff's behest. [49] It is common ground that the 5 Individual Defendants and the Corporate Defendants also paid nothing for the transfers and allotments of shares to their names. Their evidence when analysed made it manifestly clear that they too took instructions from the Plaintiff, although when it suited them, they would say that matters were discussed with their father before decisions were made. [50] As to why there is no evidence of a written trust deed with any of his family members, the Plaintiff testified: 62. Q: Why do you not deemed such documents in writing to be necessary for your family members? A: 62.1 All this while until the filing of this suit, all the named directors and shareholders of my companies who are my family members recognised that the companies are mine, and that they were or are merely representing me and holding shares for my benefit. They have been S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 39 carrying out my instructions for decades without any issue. Essentially, I operated based on trust and belief. This is known to all. After all, they are my family members. Hence, I did not see any need to draw up any documents in writing before this. 62.2 To elaborate, I had always conducted my business and affairs in a very traditional manner, whereby everyone would have to obey my instructions. In fact, no one has ever questioned or disobeyed my instructions. A lot of times, all I had to do was just give instructions, be it in person or via phone calls, and matters will be sorted out per my instructions. To illustrate, I used to ask my brothers in law to sign documents in Kuala Lumpur. They complied and immediately travelled from Bahau to Kuala Lumpur to sign per my instructions and without any question. [51] Having looked at the matter entirely, considered the copious documents and the totality of the evidence, and having carefully considered the submissions of the parties, and giving due regard to P’s explanation I find the P’s evidence on why it was not necessary to record the nominee arrangement with the Individual Defendants , was not credibly challenged in cross-examination. Thus, P’s evidence ought to be accepted — see Soon Peng Yam & Anor v Bank of Tokyo-Mitsubishi (Malaysia) Bhd [2004] 2 MLJ 31; [2004] 1 CLJ 532 and Ayoromi Helen v Public Prosecutor [2005] 1 MLJ 699; [2005] 1 CLJ 1, where in the later case, the Court of Appeal held that: Failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness’s testimony. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 40 [52] In any event, the Plaintiff’s evidence as to why no nominee arrangement with the Individual Defendants were recorded is not inherently improbable, and I accept his evidence. I feel confident to found my conclusion on his evidence because they are his children; there was no basis not to trust them before the shares were transferred to them. There is also consistency as with other family members before these Individual Defendants joined the business and were registered as shareholders. In this regard, in assessing the facts in issue on the basis of their ‘inherent probability or improbability’ I have taken heed of amongst others, the elucidations in: 52.1 Md Zainudin bin Raujan v Public Prosecutor [2013] 3 MLJ 773 FC: [33] It is trite that the inherent probability or improbability of a fact in issue must be the prime consideration in deciding whether a witness is credible or not. It is the duty of the court to sieve the evidence and to ascertain what are the parts of the evidence tending to incriminate the accused which he accepted. In Public Prosecutor v Dato’ Seri Anwar bin Ibrahim (No 3) [1999] 2 MLJ 1 at p 79 Augustine Paul J (as he then was) summed up the tests for determining the credibility of a witness as follows: The Privy Council has stated that the real tests for either accepting or rejecting the evidence of a witness are how consistent the story is with itself, how it stands the test of cross-examination, and how far it fits in with the rest of the evidence and the circumstances of the case (see Bhojraj v Sitaram 1936 AIR PC 60). … It must, however, be observed that being unshaken in cross-examination is S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 41 not per se an all — sufficient acid test of credibility. The inherent probability or improbability of a fact in issue must be the prime consideration (see Muniandy & Ors v Public Prosecutor [1966] 1 MLJ 257). It has been held that if a witness demonstrably tells lies, his evidence must be looked upon with suspicion and treated with caution, but to say that it should be entirely rejected would be to go too far (see Khoon Chye Hin v Public Prosecutor [1961] 1 MLJ 105). It has also been held that discrepancies and contradictions there will always be in a case. In considering them, what the cour t has to decide is whether they are of such a nature as to discredit the witness entirely and render the whole of his evidence wor thless and untrustworthy (see De Silva v Public Prosecutor [1964] 1 MLJ 81). The Indian Supreme Court has pointed out that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments (see Ugar v State of Bihar 1965 AIR SC 277). It is useful to refer to Public Prosecutor v Datuk Haji H arun bin Haji Idris (No 2) [1977] 1 MLJ 15 where Raja Azlan Shah FJ (as His Highness then was) said at p 19: In my opinion, discrepancies there will always be, because in the circumstances in which the events happened, every witness does not remember the same thing and he does not remember accurately every single thing that happened... The question is whether the existence of certain discrepancies is sufficient to destroy their credibility. There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A court is fully competent, for good and cogent reasons, to accept one part of the testimony of a witness and to reject the other. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 42 In the absence of any contradiction, however, and in the absence of any element of inherent improbability, the evidence of any witness, whether a police witness or not, who gives evidence on affirmation, should normally be accepted (see Public Prosecutor v Mohamed Ali [1962] 1 MLJ 257). (Emphasis added) 52.2 CGU Insurance Bhd v Asean Security Paper Mills Sdn Bhd [2006] 3 MLJ 1; [2006] 2 CLJ 409 (CA) per Gopal Sri Ram JCA (as His Lordship then was): “[53] In our judgment, the correct approach to the judicial assessment of evidence in a case where a witness has been contradicted by his or her previous inconsistent statement is to treat the whole of the evidence of that witness with caution. But the judge must consider and accept or reject, for good reasons, the explanation given by the witness for the inconsistency. He may accept the whole or parts of the witness' evidence as inspires confidence in him as having a ring of truth for one or more reasons. For example, the evidence in question or parts of it may be consistent with the probabilities of the case or with other irrefragable evidence. Or the judge may, after paying careful attention to the demeanour of the witness, feel assured that his evidence in court is consistent with the probabilities of the case and is the truth.” [53] From documentary evidence before the Court, including direct evidence of the Plaintiff and his family members, it is manifestly plain that the Plaintiff had no intention of gifting shares in his companies to anyone, S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 43 including the Individual Defendants, but had instead always intended to retain beneficial interest in the shares of his companies. [54] Even if I am wrong, nevertheless there is a consistent course of conduct by the Plaintiff to enable Court to find a presumption of intention in favour of the Plaintiff pursuant to s.114(d) of the Evidence Act 1950, which provides: “Court may presume existence of certain fact 114. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. … (d) that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist is still in existence.” [55] With the presumption of intention, it falls on the Individual Defendants to rebut the presumption. [56] The Individual Defendants proffer of (i) a bare denial of the Plaintiff’s long-standing practice of putting shares in the names of family members and trusted third parties and the Plaintiff’s intention; (ii) feigning no knowledge of the Plaintiff’s arrangements with these family members and trusted third parties; and denial that the same arrangement applied to them and the shares they hold in the Companies do not add to their case. Bare denials do not go towards discharging the onus or evidential burden of proof S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 44 shifted to them given the weighty evidence adduced by the Plaintiff - Letchumanan Chettiar [57] Fact that the Individual Defendants are in possession of share certs of the various shareholding which they now hold do not add to their case one whit. This is because the Court will not overlook that the Plaintiff is illiterate and dependent on others to manage and handle documents. His evidence is that the share certificates were kept in a safe in Bahau. He had never relinquished possession of them. Until this dispute began, he had no cause to doubt that the share certificates would still be in the Bahau safe. It is also the Plaintiff’s evidence that Carmen Looh (DW6) and Madam Yun, the secretary, had access to the safe, and if the Individual Defendants now had possession of the share certificates, it is because Carmen Looh would have taken them out without his knowledge. This evidence is telling: GS I'm also going to suggest to you that if you took these share certificates, you took them without telling your father. DW6 I – GS In other words, your father never knew that you were holding these certificates. DW6 I didn't tell my father about taking this. GS Yes. You didn't tell your father that you had possession and were holding the share certificates. DW6 I didn't tell him. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 45 GS Good. And I have to… I'm going to say to you that your father never said to you, “Please keep these certificates”, as well. DW6 He didn't say that. [58] There you have it. Added to that, none of the other 4 Individual Defendants, have claimed that the Plaintiff had allowed them to take the share certificates, or even that he was aware they had the share certificates in their possession. I thus agree with Plaintiff’s counsel that this, puts paid to their reliance on the share certificates and it is entirely plausible that the evidence about the Individual Defendants’ possession of share certificates is more likely than not to have been as a result of legal advice rather than a natural occurrence arising from the agreement of the Plaintiff. [59] On a consideration of the entire evidence and not bits here and there, no doubt is left in my mind that the Plaintiff never intended to give the 5 children his shares; they were his children and there was no basis at that time they could not be trusted for mere e.g., this passage when he was under cross-examination: LR Can I put it to you, Dato’, you know perfectly well all these claims are not true, insofar as your five youngest children are concerned? PW1 Disagree, what you say. LR Can I also put it to you, Dato', that since Ah Peng, Ah Wei and Pik Loo acquired their shares in Prospell, they have exercised their rights as shareholders in their own right and not as a nominee? PW1 I disagree. I already said I 100% I control, I haven’t divided the family yet. Haven’t divided yet. If I am going to divide it, I am going to divide S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 46 it in an equal shares. I got nine children, three wives. I cannot be giving them to divide to only few of them specifically. What is the reason, what is the grounds? Yes, it is different if he is helping the company. Because these shares, these keys, Pik Loo has been taken it, so Pik Loo has taken it, she can actually burn it with fire or anything. Because everything I trusted my daughter, because one is a son, one is a daughter. Then, that was why I sign all to them. On the balance of probabilities, the Plaintiff has made out prima facie case that it was his consistent practice and intention that members of his family and third parties, including the Individual Defendants, always held shares in his companies as trustees and if they were directors, as his nominees. [60] Naturally, I have considered the Plaintiff’s character - as the patriarch of a large and traditional Hakka Chinese family, of a generation where the eldest son would assume responsibility for looking after his immediate and extended family. His family circumstances combined to leave him with little formal education and no literacy in English and Malay; he was working by the age of 8 as a rubber tapper. In the autumn of life, the Plaintiff has built a business empire consisting of at least 8700 acres of palm oil plantation land which generated, over the last 20 years, an average of RM25.4 million in revenue through his leadership, vision and funding. I readily agree with the Plaintiff’ counsel that “this is, by any measure, a success story, hard-earned and hard-won.” S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 47 [61] He rules the roost as the head of the family and the business he was in charge. I accept that “He was “Da Ge”, big brother, to his siblings, and was respected as the boss and the head. Many of his family members worked in the Plaintiff’s companies, including his older children. Some of them were there for decades, some for shorter periods. They were there and they helped, assisted and yes, contributed to the Plaintiff’s business.” [62] As mere example (and there are many examples) to debunk the Indvidual Defendants’ tale of “sacrifice” and contributions”, Admund Looh (PW7) being the eldest of the Plaintiff’s son and in what is the equivalent of a “Prince Charles” now “Prince Harry” in a traditional Hakka family, too had shares in the Companies that were registered in his name. Admund Looh’s unchallenged evidence was that he chose to stop his tertiary education in the UK because he did not want to financially burden the Plaintiff. Admund Looh then returned to Malaysia to assist the Plaintiff in the family business and stayed with the Plaintiff for at least 10 years. By Sampson Looh’s standards, this must surely constitute a “sacrifice”. Even so, Admund Looh did not claim that the shares belonged to him because the Plaintiff would never have given away his hard earned assets. Another example is Liong Kiu (PW5), the Plaintiff’s younger brother, also known as Uncle Hoi. Liong Kiu’s unchallenged evidence was that he had been working with his brother, the Plaintiff, for about 50 years. The Plaintiff called Liong Kiu his right-hand man. It cannot be disputed that 50 years’ service must surely count as a contribution. Sampson Looh and Liong Kiu were both registered as 50% shareholders in Mestika Cemerlang on the same day, yet only Sampson claims that the share belongs to him absolutely. Liong Kiu was steadfast that S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 48 the 50% he held was held on trust for the Plaintiff as were shares in his name in a timber company. He also corroborated the Plaintiff’s evidence that share certificates are kept in the safe in the Bahau office. [63] I reject Sampson Looh’s version of events as being inherently improbable when one takes into account the value of the shares he held in Mestika Cemerlang and Sim Lim. Mestika Cemerlang was the owner of approximately 39 acres of land in Buloh Kasap, Segamat, which Sampson accepted had a purchase price of RM8 million. This meant that his 50% shareholding, allegedly given to him in 2008 for nothing more than joining his father’s business, was worth at least RM4 million. As for Sim Lim, it was a company newly incorporated for the purpose of entering into a very valuable joint venture agreement with Yayasan Negeri Sembilan for the development of a new oil palm estate. It was most curious that Sampson Looh told no one about his father’s munificence which turned him at 25- years-old into a multi-millionaire. His reason for this silence – a fascinating but nevertheless and unbelievable “I just didn’t tell”. With respect, it was not a plausible explanation for one receiving a gift of such magnitude. I find it more probable that he did not tell because it never happened. In any case, Sampson Looh’s claim that Mestika Cemerlang and Sim Lim shares were given for his contribution was not pleaded in the Re-Amended Defence and cannot be entertained. Counsel for the Plaintiff had recorded a general reservation to object, in submissions, to any evidence that had not been pleaded. See: Instantcolor System Sdn Bhd v Inkmaker Asia Pacific Sdn Bhd [2017] 2 MLJ 697, FC at [60], Iftikar Ahmed Khan (as the executor of the estate for Sardar Mohd Roshan Khan, deceased) v Perwira Affin Bank Bhd (previously known as Perwira Habib Bank Malaysia Bhd) [2018] 2 MLJ 292, FC at [27]. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 49 [64] Neither do I find convincing the tale by the Individual Defendants have whipped up before this Court of “sacrifice” and “contributions”, of “rescuing” their father and his companies. According to them, the family business was in dire straits because of the poor management by the Plaintiff and the elder sons from the first and second family. After they joined the family business, they successfully rehabilitated the business of the plantation Companies and, these efforts so impressed or moved their father that he gave them 70% of his wealth and control over his companies and assets. Fact of the matter is, despite there were some problems with the banks on loans, the objective documentary evidence shows that at all times, the Companies had a substantial land bank which provided a surplus of assets over liabilities. The Companies’ assets could and were used to satisfy their debts. Indeed, despite the sale of assets to satisfy these loans, the Plaintiff still preserved at least approximately 8700 acres of plantation land. There is no evidence at all that any of the Individual Defendants had advanced any money at all not even one cent in personal funds to settle the company loans. Thus in alleging the companies had gone to rack and ruin at the hands of the Plaintiff and other family members and in the process exaggerating their “contributions” besides sounding hollow, particularly when as alluded earlier, added nothing to the Individual Defendants’ tale. It seems to me an ill conceived machination, and not to be countenanced by the court. As part of the restructuring which Sampson carried out, Yoke Hoh was placed under Prospell which gave him 50% indirect control of Yoke Hoh. Prior to Yoke Hoh being “moved” to becoming a subsidiary of Prospell, it together with Seatex was a subsidiary of LLT Holdings. LLT Holdings as a holding company was completely clean. It is also the Individual Defendants’ case S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 50 that part of the restructuring was a transfer of shares in Yoke Hoh from Prospell to the other 4 Individual Defendants. This too made little sense other than enriching themselves as these transfers could have occurred while Yoke Hoh was still a subsidiary of LLT Holdings except that other members of the family may have come to know of it. When the lack of logic in this was put to Sampson Looh, it was telling that he had no answer. [65] Sampson also credited himself with the ‘turning around’of the companies on the basis of the audited financial statements of Prospell for the year 2020 and 2021. However, when this evidence was tested in cross- examination, what became apparent was that any improvement in the companies’ fortunes could be directly attributed to these factors: 65.1 The injection of Sim Lim into the Plaintiff’s business. It will be recalled that the Sim Lim deal was included by the Plaintiff. 65.2 A substantial increase in the price of palm oil in 2020. In fact, Carmen Looh, Sampson Looh and Bill Looh accepted this fact during Prospell’s board of directors meeting on 25.5.2022. 65.3 By the Individual Defendants’ own evidence, the efforts of the operations staff on the plantations. [66] The other 4 Individual Defendants evidence on their contributions are not spectacular, far from it and appears to be calculated to support S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 51 Sampson’s machinations that are patently an exercise in self- aggrandisement, and a disingenuous opportunistic posturing to explain away their actions to take over 70% of the Plaintiff’s assets for themselves. The Plaintiff’s counsel aptly described their contribution as “When held up to the light however, they were nothing more than a marketing exercise or the proverbial chicken which “bertelur sebiji, riuh sekampung”. Their contributions in my view, when analysed, certainly do not outweigh that of other family members who had also contributed to the business. All things considered, there is simply no good reason for the Individual Defendants to justify their entitlement to 70% of his assets and for Samsoon Looh, if one accepts that he did make some “contributions”, it cannot reasonably or with any degree of proportion entitle him to half of the Plaintiff’s business empire and wealth in the hundreds of millions of ringgit. I do not find him to be a credible witness. [67] Notably, the Share transfer forms here to the Individual Defendants do not reflect “alleged contributions “or for love and affection; it stated money’s worth instead which Individual Defendant did not pay. [68] At any rate, it is significant that the Individual Defendants’ plea on “contributions” at Paragraph 117(c) of the Re-Amended Defence is only in respect of Yoke Hoh. There is also no plea that the sahres were given for their “continuing contribution’. The Individual Defendants are bound by their pleadings - see Instantcolor System (supra) at [60] and Iftikar Ahmed Khan (supra) at [27]. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 52 Not Gifts [69] The Plaintiff had vehemently disavowed any gift to the Individual Defendants of his shares. The evidence when analysed as a whole simply do not support the Individual Defendants posit that the Plaintiff had intended to give them such a big bounty. I accept the Plaintiff’s evidence summarized in these words that “if I truly intended to give the shares to such named shareholders as a gift instead of on a nominal basis, I would have mentioned it to my family. For example, I gifted 8 shop lots in Taman Pelating, Bahau to some of my family members, including my wives, my siblings and my children. I mentioned this openly to my family members and many are aware of this.” And he has told the Individual Defendants that they were holding his shares on trust for him. The conduct and surrounding circumstances are equally pointed, in that the Plaintiff's intention was and has always been plain. In his own words numerous times, the shares "100% are mine" and were "put name only". Counsel for the Plaintiff pointed out in fact that the Plaintiff in cross-examination said no less than 50 occasions that “he put name only”. He never once said otherwise. He also said in no less than 27 occasions to the effect that the companies / assets / shares are “100% all mine”. [70] Already in 2016, the Plaintiff was diagnosed with kidney failure. It is common ground that until this time he was vital and fully occupied in his business both on an operational and management level. After his diagnosis S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 53 in 2016 and his attempts at treatment in Switzerland it became obvious that he would need permanent dialysis. In early 2018 he moved to Ipoh and in early 2019 he moved to Penang so that his brother Dr Liong could supervise his medical treatment. [71] The evidence both direct and indirect, the facts and circumstances of the case demonstrated a deliberate plan conceived by the Individual Defendants to strip their father of his assets. It was unconscionable. [72] The indubitable evidence is the Plaintiff cannot read and write in BM or English, it was not the character of the man to be totally partial to these 5 sons and daughters as he was reasonably even handed with all his family. [73] Evidently, he the Plaintiff, had riches and wealth. Beyond any question, he was worth many millions, and many times over. [74] Such improvident gift was unusual but he was also prudent and restrained in his ways. Indeed, like most businesses, there will sometimes be cash flow problems and lean times. With such a large family and extended family to care for to boot, the Plaintiff had no choice but to be prudent and restrained, even though it was never a case of penny pinching in his spending as the children did have private schooling and overseas tertiary education, at least for those who applied/were qualified to do so. He provided for them. He had too, a good a head on his shoulders in the way he acquired and managed his assets and loans. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 54 [75] To the Plaintiff, it could be reasonably said even tapping rubber at a mere age of 8 years to help support his family, that taking care of his family and extended family was his mission in life and to build a hospital for the public to fulfil his late grandmother’s wishes. That intention withstood the passage of time from the 1970s to this day – 50 years. As Da Ge, he looks and takes care of all; That was the measure of the Plaintiff. [76] The Plaintiff's vision and fervent wish was for his assets, which he accumulated over 50 years, to be passed down through the generations for at least 50 years. The thought of breaking up his assets for distribution was anathema to him. In the draft will / trust deed – prepared by Tan Sri Rais Yatim, the Plaintiff was still seeking to distribute his assets fairly amongst his nine children; it in fact reflected equality and preservation of wealth. More on this Trust Deed later. [77] Is it then to be believed that the Plaintiff with his principle of unity, fairness, equality and preservation of wealth had love and affection only for these Individual Defendants to the extent that he divested his bulk of his assets to them, and even worse still put himself in a highly disadvantageous position of losing control of his business and be a minority shareholder and Board member? He, who was always in 100% control? [78] Rather, is there a systematic exploitation of an old and sickly man? Were those around him lining their pockets? S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 55 [79] Whether a transaction is or is not unconscionable: this is a question which depends on the particular facts of the case. [80] The facts are not edifying. Instead they were shocking… the evidence shows greed and avarice after the Individual Defendants took control of the Plaintiff’s business. I agree with the Plaintiff’s counsel that even if they made some contribution, and they ought to, considering they were paid a salary, “There is no proportionality in their assertion when taken against what they said they contributed. It was greed pure and simple”. This greed for example, is manifested in Sampson treating the company as his own private ATM machine, helping himself to millions of ringgit without any responsibility for having to put it back. What stupendously raised the eyebrows is that, Bill Looh, a director in Prospell, was not aware of this and hence could not have approved it. Apart from treating it as his private ATM machine, Sampson Looh also used the company to treat himself to lavish tastes including liposuction, haircuts and luxury cars. [81] The gifts of 70% of his wealth were so large and so improvident as not to be reasonably accounted for on the ground of the relationship of father and son or daughter. [82] In the circumstances of this case, the extraordinary bounty of 70% of his wealth equivalent to hundreds of millions handed out in the manner of say so by the Individual Defendants should excite grave and unremitting suspicion. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 56 [83] There is nothing to show that the Plaintiff was unhappy with his other children, wives and extended family in the form of his siblings and their families. They all held his affection. [84] What plausible reason then was there to explain the far reaching radical departure from his life long mission of providing fairly for all his family and extended family members and to preserve wealth? [85] It is not the character of the man to be totally partial to these Individual Defendants as he was reasonably even handed with all family members. Really, he looked after all of them. [86] Is it to be believed that the Plaintiff suddenly abandoned his life long commitment to his other family and extended family members? [87] How could it not be said that the proved or admitted facts showed a relationship of confidence and an abuse of that confidence? [88] Indeed, there is a very high degree of probability that those orgy of transfers could not have been unless he had taken leave of his senses OR if Sampson and the other 4 Individual Defendants had not used their position to obtain an advantage. This is because the transfers equivalent of 70% of wealth solely favoured them, the children of the 3rd wife and a daughter of the 2nd wife, was not satisfactorily explained. The strong suspicion that the radical change of a value and belief held for half a century were not the result of the free volition of the Plaintiff was not removed. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 57 [89] They, who took the extraordinary bounty and assumed majority power in the Plaintiff’s business have the burden of proof of that the transfers were fair and reasonable; that no advantage had been taken of the Plaintiff’s position and that no information which should have been communicated had been withheld. They failed to dispel bad faith, failed to substantiate the honesty and righteousness of the transfers. [90] In the instant case, the Individual Defendants have not adduced evidence to show that all care had been taken by them that the Plaintiff was put in possession of all material facts and information so as to enable him to decide fairly, fully and freely what he wanted to do with his property. [91] In the circumstances of this case, the Individual Defendants placed in the position they were in relation to the Plaintiff, must be in full view and complete appreciation of what he was doing. [92] In my respectful view, the Individual Defendants should, not only have drawn the Plaintiff's attention to the effects upon the execution of the transfer, but to also its consequential effect including all resolutions causing him to lose control of his business. [93] By keeping silent, they had actively concealed the material facts and thus committed dishonesty against the Plaintiff and their family members. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 58 [94] The definition of dishonesty, is set out in the judgment of Lord Nicholls in the decision of the Privy Council in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378; [1995] 3 All ER 97; [1995] 3 WLR 64 where he said: “…Honesty, indeed, does have a strong subjective element in that it is a description of a type of conduct assessed in the light of what a person actually knew at the time, as distinct from what a reasonable person would have known or appreciated. Further, honesty and its counterpart dishonesty are mostly concerned with advertent conduct, not inadvertent conduct. Carelessness is not dishonesty. Thus for the most part dishonesty is to be equated with conscious impropriety. However, these subjective characteristics of honesty do not mean that individuals are free to set their own standards of honesty in particular circumstances. The standard of what constitutes honest conduct is not subjective. Honesty is not an optional scale, with higher or lower values according to the moral standards of each individual. … “All investment involves risk. Imprudence is not dishonesty, although imprudence may be carried recklessly to lengths which call into question the honesty of the person making the decision. This is especially so if the transaction serves another purpose in which that person has an interest of his own.” “…Ultimately, in most cases, an honest person should have little difficulty in knowing whether a proposed transaction, or his participation in it, would offend the normally accepted standards of honest conduct.” [95] It is also useful to refer to s. 17 of the Contracts Act 1950 where it defines ‘fraud’ as follows: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 59 “Fraud’ includes any of the following acts committed by a party to a contract or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contracts: (a) the suggestion, as to a fact, of that which is not true by one who does not believe it to be true; (b) the active concealment of a fact by one having knowledge or belief of the fact; (c) a promise made without any intention of performing it; (d) any other act fitted to deceive; and (e) any such act or omission as the law specially declares to be fraudulent.” [96] Case laws suggest that the evidence required to prove an allegation of dishonesty, stands on the same footing as an allegation of fraud, which in most cases, would depend on circumstantial evidence to prove the allegation. In Ng Pak Cheong v Global Insurance Co Sdn Bhd [1995] 1 CLJ 223; [1995] 1 MLJ 60; [1994] 3 AMR 2663 (HC), Mohamed Dzaiddin J (as he then was) dealt with the reception of circumstantial evidence in proving fraud. The learned judge said, “...it is not the law of evidence that every step in the allegation of fraud had to be proved by calling live and admissible evidence nor is it the law that fraud cannot be inferred in the appropriate case. The inference, however, should not be made lightly; the circumstantial evidence must be so compelling and convincing that bearing in mind the high standard of proof the inference is nevertheless justified...”. [97] In CGU Insurance Berhad v Asean Security Paper Mills Sdn Bhd supra Gopal Sri Ram JCA (later FCJ) said, S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 60 “…While mere suspicion is insufficient, it is not the law that a litigant who alleges fraud must unravel each and every act of the person accused of fraud. Like any other fact, fraud may be inferred from circumstantial evidence with the added proviso that there must be a foundation of evidence and not mere suspicion.” (Emphasis added) [98] The evidence is undeniable. The individual Defendants conduct is besides being dishonest is also fraudulent, whether equitable fraud or common law fraud. To prove equitable fraud, the Plaintiff need not demonstrate that the Individual Defendants have an intention to deceive; the Plaintiff only need to show that there was a relationship of trust and confidence between the parties, and that there has been unconscionable conduct by the Individual Defendants - see Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751 FC: “[23] The 'fraud' of which Lord Halsbury spoke in Salomon v A Salomon & Co Ltd includes equitable fraud. In the recent Australian case ofThe Bell Group Ltd (In liquidation) v Westpac Banking Corporation (No 9) [2008] WASC 239; 70 ACSR 1, Owen J discussed the distinction between equitable fraud and fraud at common law. His Honour said: 4849One of the leading Australian texts on equitable principles is R Meagher, D Heydon and M Leeming, Meagher, Gummow and Lehane's Equity Doctrines and Remedies (4th Ed, 2002). When I refer to this text from time to time in these reasons I will do so by the shortened phrase 'Meagher, Gummow and Lehane'. At [12-050] the authors set out a non-exhaustive list of factual and legal situations that have traditionally been treated as species of equitable fraud. They include: (a) misrepresentation by persons under an obligation to exercise skill and discharge reliance and trust (for S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 61 example in fiduciary relationships), and inducements to contract or otherwise for the representee to act to his detriment in reliance on the representation; (b) the use of power to procure a bargain or gift, resulting in disadvantage to the other party; (c) conflict of interest against a duty arising from a fiduciary relationship; and (d) agreements which are bona fide between the parties but in fraudof third persons. ……….. 4853This, then, marks out a significant difference between common law fraud and equitable fraud. The latter does not require proof of an actual intention to deceive. To summarise, a plea of fraud at common law will not succeed absent proof of an intention to deceive. Such an intention is not an ingredient of equitable fraud which is, essentially speaking, unconscionable conduct in circumstances where there exists or is implied or imposed a relationship of trust or confidence.” See also Ktl Sdn Bhd Ktl Sdn Bhd v Leong Oow Lai [2014] MLJU 1405 at [93]. [99] As alluded earlier, that there is a relationship of trust or confidence between the Individual Defendants and the Plaintiff cannot be disputed. Their clinging on to the 70% wealth of the Plaintiff, taking over his business, and to enrich themselves at the Plaintiff’s expense is unconscionable to come S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 62 within equitable fraud. The Privy Council in Hart v O’Connor [1985] 1 AC 1000 at p 1024C described unconscionable conduct as follows: … "Fraud" in its equitable context does not mean, or is not confined to, deceit; "it means an unconscientious use of the power arising out of these circumstances and conditions" of the contracting parties; Earl of Aylesford v. Morris (1873) L.R. 8 Ch. App. 484, 491. It is victimisation, which can consist either of the active extortion of a benefit or the passive acceptance of a benefit in unconscionable circumstances. [100] The Plaintiff will have to show intention for common law fraud - Takako Sakao (supra): [23]…. The term common law fraud is often used to describe the tort of deceit, or the making of fraudulent misrepresentations. The tort of deceit is said to encompass cases where the defendant knowingly or recklessly makes a false statement, with the intention that another will rely on it to his or her detriment…….. In Armitage v Nurse [1997] EWCA Civ 1279; [1998] Ch 241; [1997] 3 WLR 1046, Millett LJ discussed the meaning of 'actual fraud' in the context of an exemption clause. At p 1053, His Lordship described actual fraud as connoting, at least, 'an intention on the part of the trustee to pursue a particular course of action, either knowing that it is contrary to the interests of the beneficiaries or being recklessly indifferent whether it is contrary to their interests or not'….. [101] Once fraud is proven, it vitiates all transactions whatsoever. Fraud unravels all. As cited by the Federal Court in Lai Fee v Wong Yu Vee [2023] 3 MLJ 503 at [63]: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 63 [63] In CIMB Bank Bhd v Maybank Trustees Bhd and other appeals, the Federal Court ruled that a party which had committed fraudulent misappropriation of trust monies could not benefit from its own fraud and that that party cannot rely on the exemption clause under the contract as a defence. Ariffin Zakaria CJ writing for the Federal Court referred to the following remarks of Lord Bingham in HIH Casualty and General Insurance Ltd, at para [15]: … fraud is a thing apart. This is not a mere slogan. It reflects an old legal rule that fraud unravels all: fraus omnia corrumpit. It also reflects the practical basis of commercial intercourse. Once fraud is proved, ‘it vitiates judgments, contracts and all transactions whatsoever’: Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at p 712, per Lord Justice Denning: ‘Parties entering into a commercial contract will no doubt recognise and accept the risk of errors and omissions in the preceding negotiations, even negligent errors and omissions. But each party will assume the honesty and good faith of the other; absent such an assumption they would not deal’. [102] I note the deafening silence too even at the three meetings/discussions prior to Plaintiff’s open-heart surgery on 29.9.2020 (“Pre-surgery Meetings”), post surgery 10 December hospital meeting, the Phone Call of 17.5.2021 and the meeting at Bahau during the ancestral memorial day on 25.12.2021 (“Bahau Meeting”) where the Plaintiff and all his children attended (except Sampson and Shandy). If the 70% of the Plaintiff’s wealth were given to them, there was not a whisper of protest nor reminder registered with the Plaintiff that these shares were no longer his. And they know conflict was brewing because one of them went and saw lawyers after the Bahau meeting. In this regard, the consistency of the S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 64 Plaintiff’s intention and wishes of a fair and equitable distribution is fortified the following: 102.1 the Individual Defendants asserted that the dinner at CRC Restaurant three days before open heart surgery was a celebration dinner and that there were no discussions of the Plaintiff’s intention of a fair and equitable distribution amongst his nine children, and the preservation of his assets and business empire. I accept the Plaintiff’s version as being inherently probable that he would have expressed his wishes and objectives, whether at the dinner at CRC restaurant or the night before surgery as the Plaintiff, facing such a major surgery and at that senior age would be fully aware of his mortality. It would not be repugnant with common sense and logic for him to wish to put his affairs in order. There is no lack of authorities on our shores including the Privy Council case of Keng Soon Finance v MK Retnam Holdings Sdn Bhd & Anor [1989] 1 MLJ 457 that the common sense approach can be applied to achieve a just result in arriving at a decision. 102.2 Carmen Looh acknowledged in the Hospital recording on 10.12.2020 secretly made by her that by the “11 people” in the recording, the Plaintiff meant all 9 children and the 2 surviving wives of the Plaintiff; she acknowledged that the shares were held on trust or as nominees as made clear from the spoken Cantonese words of “doi ling”. Her now S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 65 opportunistic explanation that she meant to say “to lead” (as opposed to “to represent”) is rejected. Significantly, she did not did not assert ownership when it was her own evidence under cross-examination that she could “stand up to the Plaintiff” in instances when the Plaintiff is wrong. In the face of multi millions weighing in the bargain for her, I reject her feeble explanation that she kept silent because “because it is already common understanding between [the Plaintiff and her]”. 102.3 The trust deed, which the Plaintiff described as his “will”, prepared by his solicitor, Tan Sri Rais Yatim, on 1. 2. 2020 and Draft Will both made provisions for the non-breakup of his assets and empire and fair distribution of the trust fund (comprising the Plaintiff’s assets) to all 9 children and spouses and supports his case of fair and equitable distribution. Notwithstanding the Individual Defendants’ contention that the Trust Deed or Will contained a list of asserts and made no mention whatsoever of the trust set up for generations, I accept the evidence of the Plaintiff and his witnesses that it does not capture all of his assets at the material time and that he only found out subsequently and that this explains the Plaintiff’s reference to and reliance on the Trust Deed during the Dec 10 Meeting. He could not have known the Trust Deed did not provide for his entire assets of 100% as he does not write and read English and S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 66 Malay and have to depend on others. If the Individual Defendants’ case is to be believed, it means the Plaintiff having already given away 70% of his assets, he will still be giving more assets to the Individual Defendants from the Plaintiff’s balance 30%. It is improbable, simply do not make sense and completely goes against the grain of his value of fair and equitable distribution if in fact he was aware the Trust Deed covers only 30% of his 100%. But he was not aware and having been made aware, he has terminated the Trust Deed. 102.4 There is then the Phone Call of 17.5.2021 between Carmen Looh and the Plaintiff again which Carmen Looh secretly recorded. Once more, she made no express assertion of ownership. It begs the burning question yet again WHY, if the shares were truly hers. And it must be borne in mind that the Plaintiff was unguarded in both the 10 December hospital meeting and the Phone Call of as he did not know his trusted daughter Carmen was secretly audio-recording both events. 102.5 At the Bahau Meeting which was expressly requested by the Plaintiff to be recorded, as opposed to Nathan’s privately and separately audio- recording of the same, Bill, Carmen and Nathan did not openly and expressly assert that the shares registered in their names or in the names of S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 67 Sampson and Shandy were given to them in consideration of their respective contribution or per the premise of their pleaded Defence. In the face of the Plaintiff’s challenge to their continued ownership of the shares, their non -assertion of ownership at the meeting is mind blowing. Why did they not confront or remind their father that the shares were given to them, if indeed it was so? The irresistible conclusion can only be they knew that the shares do not belong to them. They had ample time to prepare for the Bahau meeting as shown by the evidence. Bill, Carmen and Nathan knew 5 days beforehand of the Bahau Meeting that the Plaintiff would seek a return of the shares registered in their names. Bill and Nathan travelled together to the Bahau Meeting, these two brothers discussed the matter and according to Bill, Nathan and him would be telling the Plaintiff that the shares in their names belong to them. But they did not. At the Bahau meeting, the only meaningful words Bill said was to the effect of “wait for Sampson’s return”, Nathan defied the Plaintiff’s instructions to return the shares, spoke of unrelated and incoherent events, whilst Carmen focused on her guarantorship only arising from her directorship in the companies (as opposed to shareholding). To this, the Plaintiff asserted that he would discharge Carmen’s guarantees. They knew conflict was brewing so WHY DID THEY NOT SAY IT STRAIGHT THAT THE SHARES IN S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 68 THEIR NAME BELONG TO THEM? Obviously, it must be that the shares are their father’s and not theirs. [103] Why did it not strike the Individual Defendants at all that their father would find issue with the transfers? [104] This court as a court of conscience will not just blindly accept the 5 indiv D’s ipse dixit assertion that the transfer of shares to them is a gift but will instead protect the aged and infirm from being tricked or misled in any way by others, and yes, including his own children in whom he reposed trust and confidence into parting with his property. [105] An alleged gift must be proved, and only if a gift is proved will the law not question the rationale no matter how improvident the gift and inconsistent with hitherto values and belief. [106] Despite the purported love for their father, and each of them testified, professing that they share his values of unity, fairness, equality and preservation of family wealth, yet they cling on to the 70% and even fought their octagenarian father’s bid for an early trial. Why? Because a dead man tells no tales! And they will then have in aid of their tale, the presumption of advancement! [107] Providence made it possible for the Plaintiff to testify despite his legs being amputated in the course of trial, and the Plaintiff has given his version - that the transfers are not gifts. I believe him. Indeed, I have no S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 69 reason not to arising from corroborated and credible evidence of his witnesses. [108] It was very clear, to me that the Individual Defendants, by their stratagem of the so-called gifts were salting away and securing their own nest. [109] In the ultimate analysis, the evidence in support of the Individual Defendants that the transfers or allotment of shares are gifts to them was weak, both inherently unbelievable and inherently improbable given the circumstances of this case. I find the respective Individual Defendants’ account that the Plaintiff intended a gift to them of the shares is not credible. Considering the totality of the evidence before me, there is sufficient evidence leaning in favour of the Plaintiff’s case. [110] This means the presumption of advancement is rebutted and must be found against the Individual Defendants. The Plaintiff is entitled to all the shares registered in the Individual Defendants’ name on the basis of the pleaded trust. I make the findings that the Plaintiff contributed personally the entire acquisition of all the substantial assets associated with his empire, which began in around the 1970’s. He did not intend to give full beneficial ownership of his shares to the Individual Defendants. Despite intensive cross-examination for 19 days from his hospital bed by the individual Defendants’ counsel, the Plaintiff remained consistent throughout in his wishes and objectives, including a fair and equitable distribution of his assets to his nine children after his demise, non-division of his assets, preservation S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 70 of generational wealth and looking after the larger and extended Looh family including the Plaintiff’s siblings. [111] The entirety of the evidence in chief, the cross-examination and the re-examination, the transcripts of audio recordings of the 10 the December meeting, Phone Call and Bahau Meeting, the documentary evidence before the court, the conduct of the parties, assessed, weighed as a whole show to this court the Plaintiff’s consistent intention was always that family or third parties would hold shares for him on trust; and there is simply no good reason for the Individual Defendants to justify their entitlement to 70% of his assets. [112] The beneficial interest thus “resulted” back to the Plaintiff. The elements of imposing a constructive trust are also present such that to allow the Individual Defendants to retain the shares will be unconscionable. Whether on a resulting trust or constructive trust, the Plaintiff gets back his shares. Fraud whether equitable or common law fraud has also been proven. [113] In my considered view, on the material before the court, the Plaintiff’s counsel in their industry, had set out the facts and the relevant authorities in lucid details. I find myself to be in complete agreement with Plaintiff’s counsel’s analysis of the evidence and authorities, and am persuaded by the force of their arguments that on the facts, there was the Plaintiff’s intention to create a trust or to retain the beneficial interest in the shares of his companies. I have adopted parts of their submissions in this S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 71 judgment but find it unnecessary to deal with each and every point raised in all the submissions. Corporate Defendants [114] As for the Corporate Defendants, given the way the companies were restructured as manifested by evidence before the court, I agree with the Plaintiff’s counsel that the Corporate Defendants’ shareholdings are the result of the Individual Defendants’ “restructuring” of the Plaintiff’s assets and companies. The fate of the Corporate Defendants is inextricably linked to that of the Individual Defendants who are presently in control of the Corporate Defendants. The evidence show Sampson Looh to be clearly in the saddle, took responsibility for designing and executing the entire exercise to strip their father’s assets. Articles do not recognize Trust [115] The Individual Defendants and the Corporate Defendants also argue that the Articles of Association of the companies do not recognize a trust. I find this argument to be futile. The Articles do not vaporize the trust in favour of the Plaintiff. The Articles do not in any manner in my view affect the validity of the trust arrangement between the Plaintiff and the Individual Defendants which is of no concern to the Corporate Defendants. As between the Plaintiff and Individual Defendants, the trust can be enforced . Evaluation and assessment of the credibility of the witnesses S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 72 [116] As “evidence” is not confined to documents and the Court is enjoined by s. 3 of the Evidence Act to consider oral statements by witnesses, the evaluation and assessment of the credibility (or otherwise), of the witnesses were crucial to the present case. In assessing credibility of the witnesses, I have taken note that credibility of a witness embraces not only the concept of his truthfulness i.e. whether the evidence of the witness is to be believed but also the objective reliability of the witness i.e. his ability to observe or remember facts and events about which the witness is giving evidence and this court must pay attention to a number of factors which, inter alia, include the following as exposited by Gillen J in Sean Thornton (a minor by his mother and next friend) v Northern Ireland Housing Executive [2010] NIQB 4: (i) The inherent probability or improbability of representations of fact; (ii) The presence of independent evidence tending to corroborate or undermine any given statement of fact; (iii) The presence of contemporaneous records; (iv) The demeanour of witnesses e.g., does he equivocate in cross examination; (v) The frailty of the population at large in accurately recollecting and describing events in the distant past; (vi) Does the witness take refuge in wild speculation or uncorroborated allegations of fabrication; S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 73 (vii) Does the witness have a motive for misleading the court; and (viii) Weigh up one witness against another [117] Sir George Farwell in the Privy Council case of Bombay Cotton Manufacturing Company v Motilal Shivlal ILR 1915 39 Bom 386, PC, in addressing the credit of a witness upon cross-examination, said that ‘it is most relevant in a case where everything depends on the judge’s belief or disbelief in the witness’ story.’ [118] The tale spun by the Individual Defendants that they were given 70% of their father’s wealth is not believable to this Court and was blown to smithereens when tested under incisive cross-examination by both the Plaintiff’s counsel, Mr Gopal Sreenevasan and Mr. Robert Low. The importance of oral evidence through cross-examination is underscored by the following authorities: 118.1 Carmarthenshire County Council v Y [2017] 4 WLR 136 at [7] to [9]: 7 ….Oral evidence-in-chief now requires the permission of the judge be given. FPR r 22.11 provides the right to cross-examine a witness on his or her witness statement. Thus, the general rule is that facts in issue are to be proved by written evidence-in- chief and oral evidence given under cross-examination. Of course, facts may also be proved by hearsay evidence pursuant to the Civil Evidence Act 1998 and FPR rr 23.2–23.5, but the general rule is that oral evidence given under cross-examination is the gold standard. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 74 8 Why is this? It is because it reflects the long-established common-law consensus that the best way of assessing the reliability of evidence is by confronting the witness. In Crawford v Washington (2004) 124 S Ct 1354, para 62 Scalia J, when discussing the explicit command to afford cross- examination of witnesses in criminal cases contained within the Sixth Amendment to the US Constitution, stated: “To be sure, the clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined. Cf 3 Blackstone, Commentaries, at 373 (‘This open examination of witnesses … is much more conducive to the clearing up of truth’); M Hale, History and Analysis of the Common Law of England 258 (1713) (adversarial testing ‘beats and bolts out the truth much better’).” 9 It should not be thought that this consensus or viewpoint is confined to criminal causes. Thus, in Goldberg v Kelly (1970) 397 US 254, a case about the entitlement to receive certain federal welfare benefits, Brennan J stated, at p 269: “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” 118.2 Berezovsky v Abramovich [2012] EWHC 2463 (Comm): S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 75 92. … However, it would not have been practical, given the length and complexity of the factual issues involved, for the court to have required evidence in chief to have been given orally. It was for that reason that cross-examination, in particular of Mr. Berezovsky and Mr. Abramovich, assumed such a critical importance. [119] In deciding the matter, I will make clear that I have preferred the evidence of the Plaintiff’s witnesses whom I viewed as ‘more credible’ in support of the Plaintiff’s contentions, as compared to the Defendants’ witnesses whom I found ‘evasive’ when troubling questions were put to them, and were not credible. The Defendants’ witnesses’ evidence simply do not add up. Even if there were discrepancies in the Plaintiff’s witnesses' evidence, if at all, were minor and not relevant, and on the whole, the Plaintiff’s witnesses were forthright, their evidence was comprehensive, compelling, convincing and consistent with the documents and the overall probabilities. As alluded earlier, some latitude is accorded the Plaintiff due to his advanced years, testifying from hospital, medical conditions and owing to having to cope with a translator. In the context of the entirety of the evidence before the court, any lingering doubts that I have, I would resolve in favour of the Plaintiff. Exemplary/aggravated damages [120] In Khaw Cheng Poon & Ors v Khaw Cheng Bok & Ors and another appeal [2005] 6 MLJ 540; [2005] 3 CLJ 753, Gopal Sri Ram JCA (as he then was) delivering the judgment of the Court of Appeal said: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 76 … Exemplary damages are only awarded in special circumstances. These circumstances are contained in the speech of Lord Devlin to which we have already referred, that no new categories are admissible to the Devlin list has now been settled in the decision of the House of Lords in Cassell & Co Ltd v Broome [1972] AC 1027. (Emphasis added.) [121] In Rookes v Barnard and others [1964] AC 1129, Lord Devlin stated unlike ordinary damages whose purpose is to compensate, that of exemplary damages is to punish and deter, and there are two categories of cases when it should be awarded, viz: (a) oppressive, arbitrary or unconstitutional action by the servants of Government; (b) the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff. [122] In Big Junkyard Sdn Bhd & Anor v Chan Kah Wai [2023] 1 CLJ 564 the court held: "[41] Thus, aggravated damages are given as additional compensation where there is injury to the feelings of the plaintiff that is caused by or exacerbated as a result of exceptional conduct of the defendant. The conduct must be high- handed or malicious act or an act done in an oppressive manner. Mere wrongful conduct is not sufficient. There must be something exceptional in the act that was done. The matter was lucidly stated by Lord Devlin in Rookes v Barnard [1964] AC 1129 at page 1232 as follows: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 77 I doubt whether the facts disclosed in the summing up shows even a case for aggravated damages … present there seems to be no evidence that the Respondents were motivated by malevolence or spite against the appellant ... Again in so far as disclosed in the summing up there was no evidence of offensive conduct or of arrogance or insolence. (Emphasis added.) [42] ………there are two elements relevant to the availability of an award for aggravated damages: firstly, exceptional or contumelious conduct or motive on the part of the defendant in committing the wrong; secondly, intangible loss suffered as a result by the plaintiff, that is injury to feelings or personality. Based on the above principles, the facts of the case at hand does not make out a case for aggravated damages. There is nothing exceptional about the action of the second defendant. There is no evidence of offensive conduct or arrogance or insolence of motive or that the second defendant was motivated by malevolence or spite….." [123] In Rookes v Barnard supra, Lord Devlin also expressed the view that awards of exemplary damages should be moderate and that the resources of the parties was a relevant consideration. It follows from this that an award of RM10 million sought by the Plaintiff would wreak hardship on the Individual Defendants considering their means. I find that too modest a sum would make no impact on the Individual Defendants. I have taken into consideration also the conduct of the Individual Defendants right down to the time of judgment in opposing early trial as well as denying the Plaintiff who established the family business a right of inspection of companies records until the judicial hand of intervention was sought by the Plaintiff. As children and trustee, it is the Individual Defendants bounden duty to protect the interests of their aged and illiterate father and not let their own interests and self-vested agendas conflict with their duties to their father. They took advantage of their father’s trust in S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 78 them, of his ill- health, illiteracy and old age. In Plaintiff’s counsel’s words, “They must know that the Plaintiff would agree to put shares in their names when they asked, because to him the shares were all his. They knew that the Plaintiff would not trouble with a written trust deed, because this had been his practice, for decades, with his family members. They knew, and deliberately, with intent, abused their positions of trust.” There are exceptional circumstances here. The cumulative conduct of the Individual Defendants here justify the award of exemplary damages against them but not aggravated damages. The Plaintiff is a victim of the Individual Defendants’ greed and avarice. Shakespeare’s Act 4, Scene 3 in Hamlet aptly reflects the greed here: “With this, there grows In my most ill-composed affection such A stanchless avarice that, were I king, I should cut off the nobles for their lands, Desire his jewels and this other's house; And my more-having would be as a sauce To make me hunger more, that I should forge Quarrels unjust against the good and loyal, Destroying them for wealth.” [124] For the aforesaid reasons, I order that each Individual Defendant pay a sum of RM500,000 as exemplary damages to the Plaintiff. [125] Having heard the parties on the orders to be made and clarified on 22.11.2023, there will be judgment for the Plaintiff for the orders sought in the reamended SOC as clarified on 22.11.23; consequential orders, costs of RM1,100,000.00 (subject to allocator) to be paid jointly and/or severally by S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 79 the Individual Defendants in favour of the Plaintiff, Looh Keo @ Looh Lim Teng; Costs of RM75,000.00 (subject to allocatur) to be paid jointly and/or severally by the Individual Defendants in favour of the 12th Defendant, Privilege Vintage Sdn Bhd; Interest at 5% per annum on all monetary sums (including such sum as shall be found to be due upon the taking of accounts) and costs awarded from the date of the Judgment herein until the date of full realization. The costs ordered was justifiable on account of the criterias in Order 59 r 16 ROC 2012 - interalia, this is not a run of the mill case, the trial took 49 days. [126] It has been an enjoyable trial by all accounts. I am grateful to counsel for the respective parties and thank them profusely for the very substantial efforts expended in research and their written submissions which have greatly assisted the court in arriving at a decision. Dated: 22nd November 2023 - sgd - ………………………. Liza Chan Sow Keng Judge High Court of Malaya at Kuala Lumpur COUNSEL: For the Plaintiffs : Gopal Sreenevasan (together with him, Robert Low, Karen Yong, Michelle Chiew, Chong Lip Yi and Nanthaniel Low) Messrs Robert Low & Ooi S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 80 For the 1st – 5th & 13th Defendants : Lambert Rasa - Ratnam (together with him, Andrew Chiew, Chia Oh Sheng, Lim Jun Xian and Athena Chan) Messrs Lee Hishammuddin Allen & Gledhill For the 6th – 9th, 11th & 14th Defendants : Rishwant Singh Messrs Cecil Abraham & Partners For the 12th Defendant : Ramsun Ho Messrs See Ramsun & Tan CASES CITED: Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697; [2017] 5 CLJ 418 Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61 Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1 ESPL (M) Sdn Bhd v Radio & General Engineering Sdn Bhd [2005] 2 MLJ 422 Ikumi Terada v Jemix Co Ltd & Ors And Another Appeal [2019] 1 LNS 881 Pembinaan Lagenda Unggul Sdn Bhd v Geohan Sdn Bhd [2018] MLJU 196 Geh Cheng Hooi & Ors v Equipment Dynamics Sdn Bhd and other appeals [1991] 1 MLJ 293 Yeong Ah Chee @ Yan Hon Wah v Lee Chong Hai & Anor & 13 Other Appeals [1994] 2 MLJ 614 at pg 624; [1994] 3 CLJ 20 Fawziah Holdings Sdn Bhd v Metramac Corporation Sdn Bhd & another Appeal [2006] 1 CLJ 996 S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 81 Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 Goh Jui Leang v Tay Sing Hwa [2018] 1 LNS 828 Lin Ah Moy v Lee Cheng Hor & Anor [1970] 2 MLJ 99 Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67 Tay Choo Foo v Tengku Mohd Saad Tengku Mansur & Ors And Another Appeal 2009] 1 MLJ 289; [2009] 2 CLJ 363 Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751 Zung Zang Wood Products Sdn Bhd & Ors v Kwan Chee Hang Sdn Bhd & Ors [2012] 5 MLJ 319 Soon Peng Yam & Anor v Bank of Tokyo-Mitsubishi (Malaysia) Bhd [2004] 2 MLJ 31; [2004] 1 CLJ 532 Md Zainudin bin Raujan v Public Prosecutor [2013] 3 MLJ 773 CGU Insurance Berhad v Asean Security Paper Mills Sdn Bhd [2006] 3 MLJ 1; [2006] 2 CLJ 409 Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378; [1995] 3 All ER 97; [1995] 3 WLR 64 Ng Pak Cheong v Global Insurance Co Sdn Bhd [1995] 1 CLJ 223; [1995] 1 MLJ 60; [1994] 3 AMR 2663 Hart v O’Connor [1985] 1 AC 1000 Lai Fee v Wong Yu Vee [2023] 3 MLJ 503 Keng Soon Finance v MK Retnam Holdings Sdn Bhd & Anor [1989] 1 MLJ 457 S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 82 Carmarthenshire County Council v Y [2017] 4 WLR 136 Berezovsky v Abramovich [2012] EWHC 2463 (Comm) Khaw Cheng Poon & Ors v Khaw Cheng Bok & Ors and another appeal [2005] 6 MLJ 540; [2005] 3 CLJ 753 Rookes v Barnard and others [1964] AC 1129 Big Junkyard Sdn Bhd & Anor v Chan Kah Wai [2023] 1 CLJ 564 STATUTE/LEGISLATION REFERRED: Section 3, 114(d) of the Evidence Act 1950 Section 17 of the Contracts Act 1950 S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

WA-22NCC-112-03/2022

PLAINTIF 1. ) LOOH KEO @ LOOH LIM TENG 2. ) LOOH CHAI BOON (Mendakwa sebagai wakil Plaintif Pertama) DEFENDAN 1. ) LOOH CHEE PENG 2. ) Loo Chee Peng 3. ) Looh Chee Wee 4. ) Looh Pik Loo 5. ) Looh Kit Siang 6. ) Looh Loo Yeok 7. ) PROSPELL ENTERPRISE SDN BHD 8. ) YOKE HOH SDN BHD 9. ) LOOH OIL REFINERY SDN BHD 10. ) MESTIKA CEMERLANG SDN BHD11. ) SIM LIM PLANTATIONS SDN BHD 1 2. ) PRIVILEGE VINTAGE SDN BHD1 3. ) GEORGETOWN SPECIALIST CENTRE SDN BHD1 4. ) GALAXY ATTRACTION SDN BHD

Companies and Corporations — Shares — Ownership of shares — Transfer of shares to 5 individual Defendants by illiterate Plaintiff father — Pre- existing relationship of trust and confidence — Whether Plaintiff had beneficial ownership of shares in companies — Trusts and Trustees — Characteristics of trust — Resulting Trust — Constructive trust — Importance of cross-examination — Case for award of exemplary damages made out

25/11/2023

YA Puan Liza Chan Sow Keng

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=0646c527-75bb-47dc-972c-4c1f383ccd55&Inline=true

1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) SUIT NO: WA-22NCC-112-03/2022 BETWEEN 1. LOOH KEO @ LOOH LIM TENG (NRIC No.: 420405-04-5225) 2. LOOH CHAI BOON (NRIC No.: 651019-05-5335) (Suing as P1’s attorney) … PLAINTIFFS AND 1. LOOH CHEE PENG (NRIC No.: 830122-10-5381) 2. LOOH CHEE WEE (NRIC No.: 810914-14-5885) 3. LOOH PIK LOO (NRIC No.: 820908-05-5364) 4. LOOH KIT SIANG (NRIC No.: 910426-14-5307) 5. LOOH LOO YEOK (NRIC No.: 850301-10-5668) 6. PROSPELL ENTERPRISE SDN BHD (Company No.: 199001010304 / 201874-U) 7. YOKE HOH SDN BHD (Company No.: 198201002536 / 82282-T) 8. LOOH OIL REFINERY SDN BHD (Company No.: 201301008946 / 1038788-M) 25/11/2023 19:36:23 WA-22NCC-112-03/2022 Kand. 382 S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 9. SIM LIM PLANTATONS SDN BHD (Company No.: 200701035071 / 793100-K) 10. MESTIKA CEMERLANG SDN BHD (Company No.: 199801006931 / 463058-P) 11. GALAXY ATTRACTION SDN BHD (Company No.: 200101001101 / 536857-K) 12. PRIVILEGE VINTAGE SDN BHD (Company No.: 201501043228 / 1168549-A) 13. GEORGETOWN SPECIALIST CENTRE SDN BHD (Company No.: 201601022775 / 1193714-M) 14. SEATEX PLANTATIONS SDN BHD (Company No.: 197901008221 / 52507-X) … DEFENDANTS GROUNDS OF JUDGMENT INTRODUCTION [1] This action is a family dispute where the octogenarian Plaintiff seeks the return of the shares in Companies presently registered in the names of his 5 youngest children, the 1st to 5th Defendants (“Individual Defendants”), which the Plaintiff claims are held on trust for him. Background [2] The backdrop of this case tells of a most remarkable feat of a self- made man, with only a standard one education by reason of poverty and circumstances, illiterate and unable to read in English and Malay, who S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 started working at 8 years old to help support his family, went on to build a substantial business empire and provided for his family. [3] The Plaintiff has 9 children by 3 wives. He is a traditional Hakka Chinese patriarch, an authoritative man who headed and directed both his immediate and extended family. In running the Plaintiff’s business, he was a man who expected obedience and he received it. He took responsibility for the entire family and was in turn respected by them. Dr Liong (PW8), the Plaintiff's youngest brother, explained it this way: “PW8: Let me be very clear again. Looh Lim Teng, my brother, told me "I am the owner of all these shares. When I ask you to assign to whichever nephew or make them the director, you please follow my instruction". So, I say "yes, brother, that is your share and you are my eldest brother. I follow instruction". That is the usual practice over the years. Can I add a bit? My family is a typical Hakka conventional family. We work on a very important concept called family governance. That means, we don't need contract. But by virtue of the fact he is my eldest brother and we respect him a lot, you can see over the years, all the brothers, sisters, we work tirelessly together with him. So we do not need contract. But we saw a man of honouring. That's why, when my brother asked me to do it, I will do it faithfully.” [4] 6 other family members of the Plaintiff testified to like effect comprising: Liong Kiu (PW5), the Plaintiff’s younger brother, Admund Looh (PW7), the Plaintiff’s eldest son), Desmond Looh (PW6), the Plaintiff’s 4th child; Lim Meow Fook (PW2,) Plaintiff’s brother-in-law; Lang Tuang Mauh (PW3), another of the Plaintiff’s brothers-in-law, Chan Chung Yen (PW4), the Plaintiff’s daughter-in-law (Michael Leong’s wife). S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 [5] The Individual Defendants are 5 out of 9 children of the Plaintiff. D3 is from the Plaintiff’s 2nd wife whilst D1, D2, D4 and D5 are from the Plaintiff’s 3rd wife. They were involved and had employment in the Plaintiff's business in its later years effective as follows: D1/Sampson Looh : 2008 D2/Bill Looh : 2004 D3/Carmen Looh : 2012 D4/Nathan Looh : 2011 D5/Shandy Looh : 2013 [6] At time of filing of action, the Plaintiff was 80 years of age and has had open-heart surgery in September 2020. He had to and still is undergoing dialysis on a weekly basis in Penang. [7] This action was filed as a result of the Individual Defendants’ refusal to cooperate when the Plaintiff sought to put his affairs and assets in order after his open heart surgery in September 2020. Assets built through the years of Plaintiff’s toil and efforts [8] By Bill Looh’s (DW2) own estimation, the assets of at least approximately 8700 acres of oil palm plantation land alone has a conservative value ranging between approximately RM261 million and RM348 million. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 Changes in share ownership and directorship after the individual defendants joined the Plaintiff’s business [9] The Individual Defendants presently in various combinations, control the 6th to 14th (except the 10th to 12th) Defendants at the Board and/or shareholder levels. [10] The changes in shareholding after the individual defendants joined at various times the Plaintiff’s business are: Date Company No. of Shares Percentage Sampson Looh (D1) 26.10.2007 Sim Lim Plantations Sdn Bhd 75,000 3.75% 14.04.2008 Mestika Cemerlang Sdn Bhd 1 50% 08.02.2013 Prospell Enterprise Sdn Bhd 1,000,000 50% 14.03.2013 Looh Oil Refinery Sdn Bhd 5,000 50% 08.07.2014 Prospell Enterprise Sdn Bhd 1,500,000 50% 16.02.2015 Looh Oil Refinery Sdn Bhd 50,000 1% 27.12.2016 Yoke Hoh Sdn Bhd 860,000 10% 17.01.2019 Georgetown Specialist Centre Sdn Bhd 510 51% Bill Looh (D2) 03.03.2008 Galaxy Attraction Sdn Bhd 500,000 50% 05.05.2008 Galaxy Attraction Sdn Bhd 1,900,000 50% 14.03.2013 Looh Oil Refinery Sdn Bhd 5,000 50% 02.09.2016 Privilege Vintage Sdn Bhd 10,000 1% S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 15.12.2016 Prospell Enterprise Sdn Bhd 25,000 0.5% 27.12.2016 Yoke Hoh Sdn Bhd 1,634,000 19% 23.01.2017 Prospell Enterprise Sdn Bhd 25,000 0.5% 17.01.2019 Georgetown Specialist Centre Sdn Bhd 200 20% 04.04.2019 Prospell Enterprise Sdn Bhd 450,000 9% 25.04.2019 Privilege Vintage Sdn Bhd 90,000 1% Carmen Looh (D3) 16.02.2015 Looh Oil Refinery Sdn Bhd 50,000 1% 02.09.2016 Privilege Vintage Sdn Bhd 10,000 1% 27.12.2016 Yoke Hoh Sdn Bhd 688,000 8% 19.12.2018 Georgetown Specialist Centre Sdn Bhd 490 49% 04.04.2019 Prospell Enterprise Sdn Bhd 500,000 10% 23.04.2019 Georgetown Specialist Centre Sdn Bhd 290 29% 25.04.2019 Privilege Vintage Sdn Bhd 90,000 1% Nathan Looh (D4) 02.09.2016 Privilege Vintage Sdn Bhd 10,000 1% 25.04.2019 Privilege Vintage Sdn Bhd 90,000 1% 27.12.2016 Yoke Hoh Sdn Bhd 688,000 8% Shandy Looh (D5) 02.09.2016 Privilege Vintage Sdn Bhd 10,000 1% 25.04.2019 Privilege Vintage Sdn Bhd 90,000 1% S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 27.12.2016 Yoke Hoh Sdn Bhd 430,001 5% [11] After the individual defendants joined the Plaintiff’s business, except for Shandy, the rest were appointed directors at various times as follows: Director Company Date of Appointment Sampson (D1) Prospell Enterprise Sdn Bhd 1.6.2012 Yoke Hoh Sdn Bhd 27.12.2016 Looh Oil Refinery Sdn Bhd 18.3.2013 Sim Lim Plantations Sdn Bhd 26.10.2007 Mestika Cemerlang Sdn Bhd - Galaxy Attraction Sdn Bhd - Privilege Vintage Sdn Bhd 19.11.2018 Georgetown Specialist Centre Sdn Bhd 22.1.2019 Seatex Plantations Sdn Bhd - Bill (D2) Prospell Enterprise Sdn Bhd 23.1.2017 Yoke Hoh Sdn Bhd 10.10.2006 Looh Oil Refinery Sdn Bhd 9.3.2020 Sim Lim Plantations Sdn Bhd - Mestika Cemerlang Sdn Bhd - Galaxy Attraction Sdn Bhd 24.12.2007 Privilege Vintage Sdn Bhd - Georgetown Specialist Centre Sdn Bhd 28.2.2019 Seatex Plantations Sdn Bhd 10.10.2006 Carmen (D3) Prospell Enterprise Sdn Bhd 11.4.2017 Yoke Hoh Sdn Bhd 27.12.2016 Looh Oil Refinery Sdn Bhd 18.7.2014 Sim Lim Plantations Sdn Bhd - Mestika Cemerlang Sdn Bhd - S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 Galaxy Attraction Sdn Bhd - Privilege Vintage Sdn Bhd - Georgetown Specialist Centre Sdn Bhd 17.4.2019 Seatex Plantations Sdn Bhd - Nathan (D4) Prospell Enterprise Sdn Bhd - Yoke Hoh Sdn Bhd - Looh Oil Refinery Sdn Bhd 9.3.2020 Sim Lim Plantations Sdn Bhd - Mestika Cemerlang Sdn Bhd - Galaxy Attraction Sdn Bhd - Privilege Vintage Sdn Bhd - Georgetown Specialist Centre Sdn Bhd - Seatex Plantations Sdn Bhd 4.7.2011 [12] The Individual Defendants, in various combinations, presently control the 6th to 14th (except the 10th to 12th) Defendants at the Board and/or shareholder levels. [13] It is not in dispute that the Plaintiff had a relationship of trust and confidence with the Individual Defendants, being his children and close kin. [14] In this case, the octogenarian Plaintiff claims that all the shares in the name of the Individual Defendants are held on trust. He never intended to give the shares to them. The Individual Defendants on the other hand claims that the Plaintiff has given away 70% of his wealth to them. [15] The amended defence in essence states that: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 15.1 the Plaintiff has never alleged that shares held in the Individual Defendants' names were beneficially owned by him or held on trust for him, 15.2 for the 7th Defendant (Yoke Hoh) only, the shares were transferred to the relevant Individual Defendants for their "contributions"; 15.3 a presumption of advancement / gift arises in relation to all the shares transferred to the Individual Defendants by or at the behest of the Plaintiff. [16] The parties’ respective claims were for the full beneficial interest of 70 % of his wealth, and nothing in between. Burden of proof [17] It is trite law that the Plaintiffs, have both the “burden of proof” to make out a prima facie case as well as the initial onus of proof to adduce evidence to prove their claim. The onus of proof would only shift to the Defendants if the Plaintiffs have made out a prima facie case. See for e.g., the Federal Court decision in Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697; [2017] 5 CLJ 418 where Jeffrey Tan FCJ held that: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 “[56] Thus a plaintiff has both the burden of proof as well as the initial onus of proof. In Britestone Pte Ltd v Smith & Associates Far East, Ltd [2007] 4 SLR 855, the Singapore Court of Appeal per VK Rajah JCA, delivering the judgment of the court, explained that at the start of the plaintiff’s case the burden of proof and the onus of proof coincide: … at the start of the plaintiff’s case, the legal burden of proving the existence of any relevant fact that the plaintiff must prove and the evidential burden of some (not inherently incredible) evidence of the existence of such fact coincide. Upon adduction of that evidence, the evidential burden shifts to the defendant, as the case may be, to adduce some evidence in rebuttal. If no evidence in rebuttal is adduced, the court may conclude from the evidence of the defendant. If, on the other hand, evidence in rebuttal is adduced, the evidential burden shifts back to the plaintiff. If, ultimately, the evidential burden comes to rest on the defendant, the legal burden of proof of the relevant fact would have been discharged by the plaintiff. The legal burden of proof — a permanent and enduring burden — does not shift. A party who has the legal burden of proof on any issue must discharge it throughout. Sometimes, the legal burden is spoken of, inaccurately, as ‘shifting’; but what is truly meant is that another issue has been engaged, on which the opposite party hears the legal burden of proof. [57] The rule is that ‘the onus of proof of any particular fact lies on the party who alleges it, not on him who denies it; et incumbit probation qui decit, non qui negat, Actori incibit probation … The plaintiff is bound in the first instance, to show a prima facie case, and if he leaves it imperfect, the court will not assist him. Hence the maxim Potior est condition defendantis. A plaintiff cannot obviously advantage himself by the weakness of the defence. A plaintiff’s case must stand or fall upon the evidence adduced by him. When, however, the defendant, or either litigant party, instead of denying what is alleged against S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 him, relies on some new matter which, if true, is an answer to it, the burden of proof changes sides; and he, in his turn, is bound to show a prima facie case at least and, if he leaves it imperfect, the court will not assist him. Reus excipendo fit actor’ (Woodroffe and Amir Ali, Vol 3 at pp 3190- 3191)..” [18] In the case of Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61, the Federal Court held: “Sections 101, 102, 103 and 106 of the Evidence Act 1950 deal with the burden of proof. Under s 101, it is provided that whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. Under s 102 the burden of proof lies on that person who would fail if no evidence at all were given on either side. Under s 103, the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Under s 106, when any fact is especially within the knowledge of any person the burden of proving that fact is upon him.” [19] In Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1, the Federal Court has pronounced the position of the law on the standard of proof on fraud in civil cases is that on balance of probabilities at para 49 of the judgment: “… that at law there are only two standards of proof. namely, beyond reasonable doubt for criminal cases “while it is on the balance of probabilities for civil cases. As such even if fraud is the subject in a civil claim the standard of proof is on the balance of probabilities. There is no third standard. ….” S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 The Principal Issue [20] In the tussle over the shares, the Plaintiff says that all the shares in the name of the Individual Defendants are held on trust and he never intended to give it to them but the Individual Defendants posit 70% of the Plaintiff’s wealth was given to them. This action thus raised squarely the question of whether as a matter of fact and law, there exists an express trust or a resulting trust. This pivots on the Plaintiff as transferor’s actual intention which is very fact sensitive. This intention can be direct evidence or inferred from all available evidence, including that of the Plaintiff’s conduct. [21] The Court of Appeal in ESPL (M) Sdn Bhd v Radio & General Engineering Sdn Bhd [2005] 2 MLJ 422 at [19], [24]; Ikumi Terada v Jemix Co Ltd & Ors And Another Appeal [2019] 1 LNS 881 at [38]; Pembinaan Lagenda Unggul Sdn Bhd v Geohan Sdn Bhd [2018] MLJU 196 at [96] & [97] pronounced to the effect that whether there is intention to create a trust can be determined from all the evidence before the Court. [22] If the merits are with the Plaintiff, then he will succeed otherwise his claim will be dismissed. The law on resulting and constructive trusts [23] As the subject matter involves a trust, it will thus be convenient to say a few words about the subject. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 [24] The Federal Court explained how trusts are created in Geh Cheng Hooi & Ors v Equipment Dynamics Sdn Bhd and other appeals [1991] 1 MLJ 293: "Trusts are either (i) express trusts, which are created expressly or impliedly by the actual terms of some instrument or declaration, or which by some enactment are expressly imposed on persons in relation to some property vested in them, whether or not they are already trustees of that property; or (ii) trusts arising by operation of law (other than express trust imposed by enactments) (see para 523 of 48 Halsbury's Laws of England (4th Ed)). Trusts arising by operation of law could be constructive and resulting trusts. Although we would agree with the view that a trust should not normally be imported into a commercial relationship, yet we would hold that in cases such as those involved in these appeals the court could and should consider the facts to determine whether a fiduciary relationship existed. We therefore agreed with Mr Wong that in the present cases we must consider the circumstances concerning the relationship between the parties. We were satisfied and agreed with the learned judge that in the circumstances agreements themselves do not contain an express clause that the proceeds of sale would be held on trust, as it is clearly manifested in the agreements and the correspondence concerned that it was the intention of the parties that the Emporium or its outlets as licensors should, after deduction of the fees and commissions agreed to be paid to them, make over to the concessionaires or consignors all payments by third customers. We also agreed with the learned judge and Mr Wong that the principle in Re Hallet's Estate should be applied to these cases and that the cash found in the tills of the various outlets and in the bank accounts as at 10 March 1987, are the subject matter of a trust or several trusts in favour of the concessionaires and consignors who can therefore trace the money there as well as to the proceeds of the sale to Inview Sdn Bhd.” S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 [25] Geh Cheng Hooi made clear that: 25.1 trusts can arise by operation of law, that is, either a resulting trust or constructive trust; 25.2 the court needs to consider the relationship between the parties to determine whether there is a trust; 25.3 it is not necessary to have an express clause with the word trust in it as long as the correspondence or agreement concerned manifest an intention to create a trust. [26] The Supreme Court in Yeong Ah Chee @ Yan Hon Wah v Lee Chong Hai & Anor & 13 Other Appeals [1994] 2 MLJ 614 at pg 624; [1994] 3 CLJ 20 at p 26, explained the 3 essential elements before a valid trust is said to exist: “The 3 essentials of a valid trust are (a), certainty of words (b), certainty of subject and (c) certainty of object.” [27] These 3 certainties were also discussed in Fawziah Holdings Sdn Bhd v Metramac Corporation Sdn Bhd & another Appeal [2006] 1 CLJ 996 where the Court of Appeal said: “[59] The law governing the certainty of a trust is that laid down by Lord Langdale MR in the seminal case of Knight v. Knight [1840] 49 ER 68. There it was held that for a trust to be certain three requirements must be fulfilled. First, there must be certainty of intention. Second there must be certainty of subject matter: both in terms of the corpus and the beneficial interest. Third, S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 there must be certainty of the objects of the trust. A trust is void if there is uncertainty in any of these three elements”. [28] A resulting trust gives effect to the parties implied or presumed intention. The Federal Court explained what is a resulting trust in Takako Sakao (P) v Ng Pek Yuen (P) & Anor [2009] 6 MLJ 751; [2010] 2 AMR 609 when referring to Westdeutsche Landesbank Girozentrale v Islington LBC [1996] AC 669 in the following words: "The device of a resulting trust was invented by the Court of Chancery to give effect to the implied intention of parties in relation to the acquisition and disposal of moveable or immovable property. Both types of resulting trust are traditionally regarded as examples of trusts giving effect to the common intention of the parties. A resulting trust is not imposed by law against the intentions of the trustee (as is a constructive trust) but gives effect to his presumed intention." [29] The oft-cited quote of Lord Browne-Wilkinson case of Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669, 708, explained the circumstances in which a resulting trust may arise as follows: “Under existing law a resulting trust arises in two sets of circumstances: (A) where A makes a voluntary payment to B or pays (wholly or in part) for the purchase of property which is vested either in B alone or in the joint names of A and B, there is a presumption that A did not intend to make a gift to B: the money or property is held on trust for A (if he is the sole provider of the money) or in the case of a joint purchase by A and B in shares proportionate to their contributions. It is important to stress that this is only a S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 presumption, which presumption is easily rebutted either by the counter- presumption of advancement or by direct evidence of A’s intention to make an outright transfer: see Underhill and Hayton pp. 317ff, Vandervell v. IRC [1967] 1 All ER 1 at 8,; [1967] 2 AC 291 at 312ff and Re Vandervell’s Trusts (No 2), White v. Vandervell Trustees Ltd [1974] 1 All ER 47 at 63ff,; [1974] Ch 269 at 288ff. … Both types of resulting trust are traditionally regarded as examples of trusts giving effect to the common intention of the parties. A resulting trust is not imposed by law against the intentions of the trustee (as is a constructive trust) but gives effect to his presumed intention…” (emphasis added) [30] The Court of Appeal case of in Goh Jui Leang v Tay Sing Hwa [2018] 1 LNS 828 cited with approval Lord Browne-Wilkinson’s dicta: “[38] A resulting trust is an implied trust by operation of law and is meant to restore or to jump back the equitable interest in property to its original beneficial owner. The nature is not based on the actual intention of the parties. However, it comes from the rising of presumed intention. Reference can be made in the case of Westdeutche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 where House of Lords sets out two situations: (i) Situation in which a person makes a contribution to the purchase price of property (ii) Situation in which the settlor has failed to explain the allocation of equitable interest in the property. [39] The case of Megarry J in Re Vandervell’s Trust [1974] Ch 269 suggested that there are two type of resulting trust: (i) Presumed resulting trust (ii) Automatic resulting trust S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 [40] A presumed resulting trust is made in or a transfer is made into the name of another person without any express trust being constituted. There is a presumption that the other holds property in question on resulting trust for the real purchaser or the transferor. In other words, it is created by implication as the result of a purchase in or transfer into the name of another.” (emphasis added) [31] In the case of Lin Ah Moy v Lee Cheng Hor & Anor [1970] 2 MLJ 99, the Federal Court held that inadequacy of consideration is evidence of the transferee holding the shares on resulting trust to the transferor: “…There was ample evidence for the learned trial judge to come to the conclusion that the transfers were made in trust. As regards the transfers of the 300 shares, which are the subject matter of this dispute, the learned trial judge, having seen and heard the witnesses, made a finding that there was no consideration for this transfer. Moreover, even assuming that there was consideration given by the appellant, surely inadequacy of the consideration, which was abundantly clear on the evidence, would be some evidence of a resulting trust. There can certainly be no question of a presumption of advancement in the case of a transfer from a brother to a brother or from a brother to his brother's wife. That, in our judgment, was a sufficient answer to the fifth ground of appeal that a transfer without consideration is incapable of establishing the existence of a resulting trust. It is exactly in those circumstances that the court must find a resulting trust in favour of the original transferor. It is true that a transfer without consideration creates a rebuttable presumption of a resulting trust. Was this presumption rebutted on the evidence? In our judgment, it was not. That disposed of the sixth ground of appeal.” S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 Constructive trust [32] In Takako Sakao supra, Gopal Sri Ram FCJ, one of Malaysia’s eminent jurists explained the concept and application of a constructive trust thus: [13] … Traditionally, courts have declined to provide a definition of a constructive trust. As Edmund Davies LJ said in Carl Zeiss Stiftung v Herbert Smith & Co [1969] 2 Ch 276 at p 300: English law provides no clear and all-embracing definition of a constructive trust. Its boundaries have been left perhaps deliberately vague, so as not to restrict the court by technicalities in deciding what the justice of a particular case may demand. But it appears that in this country unjust enrichment or other personal advantage is not a sine qua non. Thus in Nelson v Larholt [1948] 1 KB 339, it was not suggested that the defendant was himself one penny better off by changing an executor's cheques; yet, as he ought to have known of the executor's want of authority to draw them, he was held liable to refund the estate, both on the basis that he was a constructive trustee for the beneficiaries and on a claim for money had and received to their use. Nevertheless, the concept of unjust enrichment has its value as providing one example among many of what, for lack of a better phrase, I would call 'want of probity', a feature which recurs through and seems to connect all those cases drawn to the court's attention where a constructive trust has been held to exist. [14] In Paragon Finance plc v DB Thakerar & Co [1999] 1 All ER 400, Millett LJ (later Lord Millett) explained the concept of a constructive trust in terms that is difficult to improve: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 A constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of property (usually but not necessarily the legal estate) to assert his own beneficial interest in the property and deny the beneficial interest of another … [33] The Takako Sakao principle that that the constructive trusts arise by operation of law when unconscionable or wrongful conduct is demonstrated was cited with approval by subsequent cases of the Federal court such as: 33.1 Perbadanan Kemajuan Pertanian Selangor v JW Properties Sdn bhd [2017] 8 CLJ 392 at [58] and [59]: "[58] From decided case authorities it has been established as a principle of law that constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of the property (usually but not necessarily the legal owner) to assert his own beneficial interest in the property and deny the beneficial interest of another. (See the cases of (1) Takako Sakao v. Ng Pek Yuen & Anor. [2010] 1 CLJ 381; [2009] 6 MLJ 751 (FC) and (2) Vellasamy Pennusamy & Ors. v. Gurbachan Singh Bagawan Singh & Ors. [2012] 2 CLJ 712; [2010] 5 MLJ 437 (CA)). [59] It has also been held that a 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. (See the case of Hassan Kadir & Ors. v. Mohamed Moidu Mohamed & Anor. [2011] 5 CLJ 136 (FC)). A constructive trust is a remedial device that is employed to prevent S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 unjust enrichment. It has the effect of taking the title to the property from one person whose title unjustly enriches him, and transferring it to another who has been unjustly deprived of it. (See the case of Tay Choo Foo v. Tengku Mohd Saad Tengku Mansur & Ors. And Another Appeal [2009] 2 CLJ 363; [2009] 1 MLJ 289 CA)." 33.2 In Datuk M Kayveas v See Hong Chen & Sons Sdn Bhd & Ors [2014] 4 MLJ 64, the Federal Court elucidated: “[32] A trust is an obligation enforceable in equity, which rests on a person as owner of some property, for the benefit of another or for the advancement of certain purposes (Principles of the Law of Trusts by HAJ Ford and WA Lee). As distinct to a trust for a purpose, a beneficial owner may enforce it by a suit as in the current case. Equity, which was historically dispensed by the Chancery Court, and against his person (i.e. in personam) now compels the trustee to administer the trust in accordance with his conscience, with even a possible sanction of imprisonment until he has made good the loss caused to the trust property. On the issue of restitution, Lord Denning MR in Hussey v Palmer [1972] 3 All ER 744 had occasion to say at p 747: Although the plaintiff alleged that there was a resulting trust, I should have thought that the trust in this case, if there was one, was more in the nature of a constructive trust … By whatever name it is described, it is a trust imposed by law whenever justice and good conscience require it. It is a liberal process, founded on large principles of equity, to be applied in cases where the defendant cannot conscientiously keep the property for himself alone, but ought to allow another to have the property or a share in it. The trust may arise at the outset when the property is acquired, or later on, as the circumstances may require. It is an equitable remedy by which the court can enable an aggrieved party to obtain restitution. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 [38] From the various opinions above it may be construed that a constructive trust arises by operation of law irrespective of the intention of the parties, in circumstances where the trustee acquires property for the benefit of the beneficiary, and making it unconscionable for him to assert his own beneficial interest in the property and deny the beneficial interest of another. Being bereft of any beneficial interest, and with equity fastened upon his conscience, he cannot transfer any interest to himself let alone a third party. If he does, then a constructive trust comes into existence. An aggrieved party, by equitable remedy, may demand restitution of the property if he has been deprived of his beneficial interest.” (emphasis added) 33.3 Recently in Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67: [111] It is trite law that the intention to create a trust is applicable in situation of express trusts and not in constructive trusts. A constructive trust are trusts that may be implied in the absence of any declaration/intention of a trust, where the trustee has induced another to act to their detriment they would acquire a beneficial interest in the land/property. A characteristic feature of this trust does not owe its existence to the parties’ intention, but by operation of law. In Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751, it was held that: A constructive trust is imposed by law irrespective of the intention of the parties. And it is imposed only in certain circumstances, e.g. where there is dishonest, unconscionable or fraudulent conduct in the acquisition of property. What equity S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 does in those circumstances is to fasten upon the conscience of the holder of the property a trust in favour of another in respect of the whole or part thereof. [112] Constructive trust is viewed as a device under which equity will intervene so as to create a trust relationship between the parties in order to make a person accountable for the trust to prevent any unfairness or injustice. Equity will impose obligation on the defendant to hold the property for the benefit of another. [34] Bogert on Trusts 6th Edition, page 287, Sec. 77 states: “Constructive trusts do not arise because of the expressed intent of a settlor. They are not “intent-enforcing” trusts, but in a general way may be called “fraud-rectifying” trusts, if the word “fraud” is used in the sense of any kind of wrongdoing and not confined to an intentional false representation. It would seem preferable to treat these trusts as created by courts of equity, rather than to regard them as being brought into being as a result of acts of the parties. Whenever equity finds that one has title to property, real or personal, originally acquired by any kind of wrongdoing or, although innocently obtained, now held under such circumstances that retention of the title will result in unjust enrichment, equity may declare such title-holder to be the trustee of a trust constructed by it for the purpose of working out justice, which is merely a convenient means of remedying a wrong. It is not a trust in which the trustee is to have duties of administration lasting for an appreciable period of time, but rather a passive, temporary trust, in which the trustee’s sole duty is to transfer the title and possession to the beneficiary. The decree establishing the constructive trust amounts to a holding that the defendant ought to be treated as if he had been a trustee for the plaintiff from the time the defendant began to hold the property unconscionably. The S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 constructive trust does not exist merely because of the wrongful holding, but requires a court decree for its origin and this decree is retroactive in effect to the date when the unlawful holding began.” [35] The following excerpt from Halsbury's cited in Tay Choo Foo v Tengku Mohd Saad Tengku Mansur & Ors And Another Appeal 2009] 1 MLJ 289; [2009] 2 CLJ 363 sums up the concept and application of constructive trusts: [93] On constructive trusts, Halsbury’s Laws of England (4th Ed - Reissue) Vol 48 at pp 301–306 reads as follows: Nature of constructive trust. A constructive trust attaches by law to specific property which is neither expressly subject to any trusts nor subject to a resulting trust but which is held by a person in circumstances where it would be inequitable to allow him to assert full beneficial ownership of the property. Such a person will often hold other property in a fiduciary capacity and it will be by virtue of his ownership of or dealings with that fiduciary property that he acquired the specific property subject to the constructive trust. A stranger who receives property in circumstances where he has actual or constructive notice that it is trust property being transferred to him in breach of trust will, however, also be a constructive trustee of that property. A person who holds property on a constructive trust is a constructive trustee in respect of it. He cannot claim for himself any increase in value of the property or any profits earned by it. If he becomes bankrupt, the property is not available for his general creditors but for the beneficiaries in whose favour the constructive trust subsists." S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 Analysis and findings [36] I now turn to the evidence. I should at the outset state that the Individual Defendants’ assertion at paragraph 3.105 of their post trial submissions that prior to CS Hee & Co’s letter dated 1.3.2022, the Plaintiff never claimed the shares were held on trust for him is not true. Firstly, it is clear from the transcript of the Hospital recording on 10.12.2020 read as a whole for context, that the Plaintiff has asserted the shares are held on trust. The Plaintiff had also asserted that the 70% shares in Prospell in the names of Sampson Looh, Bill Looh and Carmen Looh were meant for the “11 people”. Secondly, the Individual Defendant’s said assertion is also contradicted by Q& A 52 – Nathan’s Main Witness Statement; Q& A 99 – Carmen’s Main Witness Statement; Q& A 92 – Bill’ s Main Witness Statement that on 25.12.2021, during the family Memorial Day (interchangeably “Bahau Meeting”), the Plaintiff had demanded that Carmen, Bill and Nathan return their shares and acknowledge in writing they are his trustees of his shares. [37] To establish a resulting trust, the Plaintiff will need to show that the Individual Defendants did not pay for the shares transferred or allotted to them, and that he had no intention of gifting the shares to the Individual Defendants which the Individual Defendants rely on as proof that the Plaintiff had no such intention. [38] In Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751, where Gopal Sri Ram FCJ held: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 [17] When A purchases Blackacre in B's name, providing, let us say, the whole of the purchase price, equity presumes that the common intention of the parties is for B to hold Blackacre on a trust that results to A. This is referred to as a presumed resulting trust. That a trust should result to A is fair and just because A provided all the money and B provided nothing. But if A is B's husband, parent or guardian or otherwise stands in loco parentis to B, then equity presumes that the common intention of the parties is to make a gift of Blackacre to B. This is referred to as the presumption of advancement. However, as the Court of Appeal pointed out in Heng Gek Kiau v Goh Koon Suan [2007] 6 CLJ 626 the correct approach to cases where a gift is asserted is: … for a court first to determine the true intention of the purchaser. The question whether the purchaser in a particular case had a donative intention is to be determined objectively through a meticulous examination of the facts and evidence of the surrounding circumstances. If after such an examination the court concludes that there was a donative intention on the part of the purchaser that is the end of the matter and there is no room for the operation of the presumption of resulting trust or advancement as the case may be. It is only where there are no or insufficient facts or evidence from which a fair inference of intention may be drawn that a court should turn to presumptions as a last resort to resolve the dispute. In arriving at this conclusion the Court of Appeal in that case applied with approval the following passage in the judgment of Gabriel Moss QC (sitting as a Deputy High Court judge) in Kyriakides v Pippas [2004] EWHC 646 (Ch) which we also regard as being good law: Where there is no declaration (of intention), the court puts itself in the position of a jury and considers all the circumstances of the case, so as to arrive at the purchaser's real intention: Snell paras 9–15. It is only where there is no evidence to contradict the S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 presumption that it will prevail: ibid. The case law has developed in such a way that even 'comparatively slight evidence' will rebut the presumption and a 'less rigid approach should also be adopted to the admissibility of evidence to rebut the presumption of advancement': Lavelle v Lavelle [2004] EWCA Civ 223 (CA) per Lord Phillips MR at para 17. I suspect the position we have now reached is that the courts will always strive to work out the real intention of the purchaser and will only give effect to the presumptions of resulting trust and advancement where the intention cannot be fathomed and a 'long-stop' or 'default' solution is needed. [39] I take note that the Individual Defendants have relied on the presumption of advancement arising out of the close relationship of father and children. The presumption of advancement no doubt gave the Individual Defendants as recipient of the shares an advantage which, if not negated, will operate to form the basis of proof. However, this was not a case where the parties were not present to give evidence of their intentions. In this significant aspect, I agree that the presumption of advancement only comes into play if the Plaintiff’s intention cannot be discerned from the evidence and the authorities cited by the parties are to be distinguished in this respect. The Plaintiff here although elderly, sickly and testified from hospital numerous days and in the course of trial, had his legs amputated, has the mental faculties or clarity of mind to provide the court with useful evidence of his intentions and personal knowledge. He had defended the presumption of advancement on the basis that he was still competent to testify as to his intentions regarding the transfer which was to create a trust or to retain the S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 beneficial interest in the shares of his companies. Unless supported by objective evidence, the presumption of advancement will not be given greater weight. [40] In assessing the Plaintiff’s evidence, I will at the outset declare that I agree with the Plaintiff’s counsel that more latitude should be given to vulnerable witnesses with medical conditions such as the Plaintiff, especially when evidence was being given through a translator - see Zung Zang Wood Products Sdn Bhd & Ors v Kwan Chee Hang Sdn Bhd & Ors [2012] 5 MLJ 319, where the Court of Appeal made the following observation about a similarly elderly and infirm witness: [59] We note, as the JC has noted, that the father was 81 years old at the time of the trial. He was frail looking and sickly. He attended each and every sitting of the trial to complete his evidence. Being the founder of the family business, he brought Mathew into the family business. He gave Mathew an overseas education and credited him with a Master's degree in Business Administration, besides substantial shares in the family business. He appointed Mathew to manage all the family companies. The JC also observed the father's demeanour, anger, disappointment and bitterness at being cheated by Mathew. He found the father to be honest and straightforward witness, albeit a bit inconsistent due to his memory lapse, confusion, old age and ill health. There was no reason for the father to lie at all, especially at his advanced age and poor health. Plaintiff’s evidence [41] The Plaintiff, as a traditional Hakka man, is a firm believer in certain core values which he tried to impart to his children. These values included S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 unity within the family, fairness, equality, and the preservation of wealth. All the Individual Defendants agreed that they too believed in these values. The Plaintiff's vision and fervent wish was for his assets, which he accumulated over 50 years, to be passed down through the generations for at least 50 years. The thought of breaking up his assets for distribution was odious to him. Witness statement PW1A 70. Q: Could you please tell this Honourable Court your family values? A: 70.1 First and foremost, I value unity within my family. I do not like my family to be divisive. 70.3 Due to my values and belief in family unity, I never intended to divide my assets. I am mindful that for a family with multiple wives and children, a division of assets is akin to a division of the family. This happens to a lot of the tycoons. I do not want that to happen to my family. Also, it is “pantang” (against my superstitious belief) to talk about division of my assets during my lifetime. 70.4 I am also mindful that having 3 wives and our respective children, I in fact have 3 families. I have strived and endeavoured to treat all my children in my 3 families equally and fairly to promote unity amongst them all. For instance, I took all of my children into my companies. I believe that by treating everyone equally, there will be less chance for disputes. They will be able to stay united and preserve the family wealth. 70.5 I have also imparted the values of fairness and equality in my children. In this regard, I often reminded Ah Wen, as my eldest son, to set an example by practising fairness and equality in his dealings with his siblings. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 70.6 I have a vision of having my wealth preserved and lasting for generations of my family, that is for 50 years with an option to extend for another 50 years. It is my wish that the welfare and interest of generations of my family (including education) will continue to be provided for and supported even after I am gone, just like how I have continuously provided for and supported my parents, my siblings, my wives and my children. I also believe in giving back to society, hence I wish to also contribute to charity using my assets. 70.7 I know this is a challenge given the Chinese saying that the wealth and/or legacy built by the 1st generation does not last past the 3rd generation. As such, I have sought and strived to ensure that my wealth and legacy would sustain and endure within the Looh family by a fair distribution of my wealth amongst my family members. I believe that fair treatment will promote unity and harmony amongst my family members, which can in turn can promote enduring prosperity. [42] These values of fairness, equality, unity, preservation of wealth imparted by their father the Plaintiff was candidly admitted by Sampson and Carmen Looh during cross-examintaion and both further testified they each believe in those values. [43] The Plaintiff testified that he personally acquired and funded the acquisition of all the substantial assets associated with his empire, which began in around the 1970’s. This was not challenged during cross- examination of the Plaintiff. Sampson Looh (DW1), Bill Looh (DW2) and Nathan Looh (DW4) confirmed that no substantial assets have been added to the Plaintiff’s empire by the Individual Defendants. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 [44] P also testified that he was the boss in the family business, he was the primary decision maker; he made all of the major decisions, including the acquisition of lands and properties and the price thereof, the acceptance of any financing, the charging of his assets or his companies’ assets to the financiers, fixing of salaries of the management personnel, and more. Particularly when it comes to any financial matters, he is the one calling the shots. He brought his family members into his companies, including his younger brothers, brother in laws and children because he trusted them to build his business empire with him. He testified that he brought his children into the family business to train them and provide them a living whilst they gained experience and contacts. He did this for each of his children, and if they left the family business to start their own ventures, he was happy for them and wished them well. Shares that were in their names were transferred back to the Plaintiff or his nominated transferee whenever required by the Plaintiff. [45] He adduced evidence to show due to his illiteracy and lack of formal education, he was required to rely on and trust, those who assisted him in his work and business dealings and was, in this sense, vulnerable. These trusted persons were mainly the Plaintiff's family members, although there were also several individuals, not of the family, who he relied on to get work done. These included, the late Tun Ninam Shah, a friend of the Plaintiff’s; Noorazman, his employee; and Wong Nam, his estate manager.: 21. Q: That brings us to the 1990s. Could you tell this Honourable Court more about your other business ventures in the 1990s? S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 A: 21.3 I recall having placed some of my trusted employees and friends in Prospell since the beginning of Prospell to either hold shares or directorships or both on my behalf. Such persons include, for instance:- i. the late Tun Ninam Shah, who was my friend; ii. Noorazman, who helped me to liaise with the Selangor State Government at that time; and iii. Wong Nam, who was my estate manager based in Bahau at that time and had been working for me since my 30s. He is my 1 st ever estate manager. [46] It is not in dispute that the Individual Defendants were involved and had employment in the Plaintiff's business in its later years, beginning with Bill Looh (DW2) in 2004. It is also not in dispute that the Plaintiff had a relationship of trust and confidence with the Individual Defendants, being his children and thus, close kin: 46.1 Under cross-examination: LR Can I refer you to ID85, Dato’, page 8? This is a members’ written resolution of Yoke Hoh dated 23.6.2017. Can we go to the body of the resolution, Dato’? Can I put it to you this resolution shows Ah Peng, Ah Wei, Pik Loo, Jit Siang and Loo Yi, as shareholders of Yoke Hoh, approved, amongst others, the execution of a 3 rd Party charge by Yoke Hoh in favour of Bank Pertanian Malaysia Berhad for banking facilities granted to Prospell. PW1 If the signing is for the use of the estate, then the signing and all, it was only me, Ah Hoi and Ah Peng only. If there is S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 going to be any signing, I should be the one who signing as a chairman. How to believe them? They only taking salaries from me, you think lah. Because last time, they said they can do it online, can go online. And then I said can do online. TRANSL Then witness said – PW1 Last time asked me to come and sign – TRANSL And then witness said – PW1 I also don’t know. I wouldn’t be giving to them. Because now for signing, now you ask me to come and sign, so the best, my lawyer has to be in there, then only I know what is he telling me to sign. Last time was different, I trusted my son and daughter. Now, everything must let the lawyer see first. Then only I can understand and then lawyer ask me to sign, then I sign. 46.2 In his witness statement WSPW1A: 57. Q: What were the considerations which you took into account in deciding who to name as the registered directors and shareholders in your companies? A: 57.1 The primary consideration is trust and loyalty. I would only name myself or persons whom I trusted at that time as the registered directors and shareholders in my companies. For instance, my wives, my siblings and in laws, my children and some of my loyal employees. 59. Q: Why does it not matter to you who are the named directors and shareholders of your companies? S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 A: 59.1 This is because it is known that the shares in the companies are mine. The named directors and shareholders of my companies were or are nominal only. They were or are merely there to represent me and they hold shares for my benefit. 59.2 Further, these persons would be persons whom I trusted at that time and would do what I instruct them to do. 60. Q: How would such named directors and shareholders of your companies know that they were or are nominal only? A: 60.1 I would have told them personally or through whoever that was handling the paperwork in respect of naming of registered directors and shareholders that these companies are mine. The fact that the companies are mine is obvious because:- i. I paid for everything in my companies; ii. I was the ultimate decision maker; and iii. such named shareholders did not pay for any shares registered in their names. 60.3 Further, I never told any of such named directors and shareholders that I gave them the shares in my companies as gifts. Everyone in my family knows that I am against the idea of dividing my assets, and I have previously mentioned that there will not be division or gifting of assets unless I expressly say so. As such, such named directors and shareholders would know that they were and are merely nominal. 60.4 In addition, if I truly intended to give the shares to such named shareholders as a gift instead of on a nominal basis, I would have mentioned it to my family. For example, I gifted 8 S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 shop lots in Taman Pelating, Bahau to some of my family members, including my wives, my siblings and my children. I mentioned this openly to my family members and many are aware of this. 62. Q: Why do you not deemed such documents in writing to be necessary for your family members? A: 62.1 All this while until the filing of this suit, all the named directors and shareholders of my companies who are my family members recognised that the companies are mine, and that they were or are merely representing me and holding shares for my benefit. They have been carrying out my instructions for decades without any issue. Essentially, I operated based on trust and belief. This is known to all. After all, they are my family members. Hence, I did not see any need to draw up any documents in writing before this. 46.3 Witness statement PW1B: 14. Q: Please refer to answer 56.1 of your Earlier Witness Statement where you mentioned that you decided and have control over who to name as the registered shareholders in your companies. Who decided on the shareholding of the registered shareholders? A: 14.1 I also decided and controlled the percentage of shares to put in the name of the registered shareholders. This has been my practice until sometime after Ah Peng started working in my companies, where I left it to Ah Peng to decide the percentage of shares to put in the names of the registered shareholders and to S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 report to me after he decided on the shareholding, because I trusted Ah Peng at that time. 14.2 2 I also trusted that Ah Peng would report to me of the decision he made on the percentage of shares as I have told him to so report. Further, Ah Peng knew full well of my practice in having nominees to hold shares on my behalf so I trusted that he would decide the shareholding of the nominees properly. In fact, Ah Peng once told me that he would act in the best interests of me and my family as he knew that the shares in his name was for the benefit of me as his beloved father and the family as a whole 46.4 In cross-examination, Sampson Looh (DW1) admitted: GS Right. Now, taking all of that into consideration, up until you have fallen out with your father, would it be fair to say that you trusted him? DW1 Yes. GS Yes, and would you say that he also trusted you? DW1 Yes. 46.5 His older brother, Bill Looh (DW2) also accepted: RL And would it be a fair statement to say that at least before this dispute started, your father trusted you? DW2 Yes. 46.6 Their half-sister, Carmen Looh (DW6) agreed: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 36 GS And would you say, and would you accept that he had trust in you? DW6 Yes. 46.7 Their sister, Shandy Looh (DW3) agreed: RL I’m going to suggest to you, as father and daughter, you have a special relationship with your father. Therefore, you owe him a duty to explain things to him properly. DW3 Yes, I do owe him explanation 46.8 Their youngest brother, Nathan Looh (DW4) recognised the special relationship although he disagreed as to the duty that came with it: RL It’s one question. Never mind, you say two. So, you agree that you have a special relationship with your father, being father and son? DW4 Yes. RL Because of that special relationship, I’m going to suggest to you that you owe him a duty to explain things to him properly. DW4 Duty to explain things? I don’t think so. RL And also because of that special relationship, you owe your father a duty to also explain to him properly all documents which he signs. DW4 I disagree. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 37 [47] That the Plaintiff was in control and the decision maker in the companies was unshaken during cross-examination and 7 of his family members PW2 to pW8, who at various times were either employed by the Plaintiff or held shares and directorships at the Plaintiff’s behest, gave consistent evidence that that the shares they had in the Plaintiff's companies were at all times held on trust for him. he is the boss and they follow his instructions. and each of them who had been a shareholder returned the shares when asked to by the Plaintiff; if they had been directors, they resigned at his request. The family members other than the 5 individual Defs who had been shareholders and directors in the P’s companies included: 47.1 Liong Kiu and Dr Liong, the Plaintiff’s brothers; 47.2 Lang Tuang Mauh and Lim Meow Fook, the Plaintiff’s brothers-in-law; 47.3 Admund Looh (PW7, Michael Leong, Jenny Looh, and Desmond Looh, the Plaintiff’s children from the 1st and 2nd families; and 47.4 Chan Chung Yen, the Plaintiff’s daughter-in-law. [48] Notably, some of these family members individuals including Admund Looh (PW7), Michael Leong, Dr Liong (PW8), Desmond Looh (PW6), Chin Yew Lian (the Plaintiff's second wife and Carmen Looh's mother and some who were not including the late Tan Peck Soo, who was the General Manager of the Plaintiff's group of companies also became S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 38 guarantors for loans that the companies took, yet none of them asserted ownership or management rights. Chan Chung Yen (PW4), Liong Kiu (PW5) and Desmond Looh (PW6) for instance in evidence, testified when asked to do so by the Plaintiff, the transfers they effected for shares held in their names was because the Plaintiff was the true and beneficial owner of the shares. Dr Liong, Tan Peck Soo and Admund Looh also became guarantors for loans taken by the companies without becoming shareholders in their own right in those companies. None of these family members paid for the shares nor received any consideration when they returned or transferred the shares to another at the Plaintiff's behest. [49] It is common ground that the 5 Individual Defendants and the Corporate Defendants also paid nothing for the transfers and allotments of shares to their names. Their evidence when analysed made it manifestly clear that they too took instructions from the Plaintiff, although when it suited them, they would say that matters were discussed with their father before decisions were made. [50] As to why there is no evidence of a written trust deed with any of his family members, the Plaintiff testified: 62. Q: Why do you not deemed such documents in writing to be necessary for your family members? A: 62.1 All this while until the filing of this suit, all the named directors and shareholders of my companies who are my family members recognised that the companies are mine, and that they were or are merely representing me and holding shares for my benefit. They have been S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 39 carrying out my instructions for decades without any issue. Essentially, I operated based on trust and belief. This is known to all. After all, they are my family members. Hence, I did not see any need to draw up any documents in writing before this. 62.2 To elaborate, I had always conducted my business and affairs in a very traditional manner, whereby everyone would have to obey my instructions. In fact, no one has ever questioned or disobeyed my instructions. A lot of times, all I had to do was just give instructions, be it in person or via phone calls, and matters will be sorted out per my instructions. To illustrate, I used to ask my brothers in law to sign documents in Kuala Lumpur. They complied and immediately travelled from Bahau to Kuala Lumpur to sign per my instructions and without any question. [51] Having looked at the matter entirely, considered the copious documents and the totality of the evidence, and having carefully considered the submissions of the parties, and giving due regard to P’s explanation I find the P’s evidence on why it was not necessary to record the nominee arrangement with the Individual Defendants , was not credibly challenged in cross-examination. Thus, P’s evidence ought to be accepted — see Soon Peng Yam & Anor v Bank of Tokyo-Mitsubishi (Malaysia) Bhd [2004] 2 MLJ 31; [2004] 1 CLJ 532 and Ayoromi Helen v Public Prosecutor [2005] 1 MLJ 699; [2005] 1 CLJ 1, where in the later case, the Court of Appeal held that: Failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness’s testimony. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 40 [52] In any event, the Plaintiff’s evidence as to why no nominee arrangement with the Individual Defendants were recorded is not inherently improbable, and I accept his evidence. I feel confident to found my conclusion on his evidence because they are his children; there was no basis not to trust them before the shares were transferred to them. There is also consistency as with other family members before these Individual Defendants joined the business and were registered as shareholders. In this regard, in assessing the facts in issue on the basis of their ‘inherent probability or improbability’ I have taken heed of amongst others, the elucidations in: 52.1 Md Zainudin bin Raujan v Public Prosecutor [2013] 3 MLJ 773 FC: [33] It is trite that the inherent probability or improbability of a fact in issue must be the prime consideration in deciding whether a witness is credible or not. It is the duty of the court to sieve the evidence and to ascertain what are the parts of the evidence tending to incriminate the accused which he accepted. In Public Prosecutor v Dato’ Seri Anwar bin Ibrahim (No 3) [1999] 2 MLJ 1 at p 79 Augustine Paul J (as he then was) summed up the tests for determining the credibility of a witness as follows: The Privy Council has stated that the real tests for either accepting or rejecting the evidence of a witness are how consistent the story is with itself, how it stands the test of cross-examination, and how far it fits in with the rest of the evidence and the circumstances of the case (see Bhojraj v Sitaram 1936 AIR PC 60). … It must, however, be observed that being unshaken in cross-examination is S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 41 not per se an all — sufficient acid test of credibility. The inherent probability or improbability of a fact in issue must be the prime consideration (see Muniandy & Ors v Public Prosecutor [1966] 1 MLJ 257). It has been held that if a witness demonstrably tells lies, his evidence must be looked upon with suspicion and treated with caution, but to say that it should be entirely rejected would be to go too far (see Khoon Chye Hin v Public Prosecutor [1961] 1 MLJ 105). It has also been held that discrepancies and contradictions there will always be in a case. In considering them, what the cour t has to decide is whether they are of such a nature as to discredit the witness entirely and render the whole of his evidence wor thless and untrustworthy (see De Silva v Public Prosecutor [1964] 1 MLJ 81). The Indian Supreme Court has pointed out that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments (see Ugar v State of Bihar 1965 AIR SC 277). It is useful to refer to Public Prosecutor v Datuk Haji H arun bin Haji Idris (No 2) [1977] 1 MLJ 15 where Raja Azlan Shah FJ (as His Highness then was) said at p 19: In my opinion, discrepancies there will always be, because in the circumstances in which the events happened, every witness does not remember the same thing and he does not remember accurately every single thing that happened... The question is whether the existence of certain discrepancies is sufficient to destroy their credibility. There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A court is fully competent, for good and cogent reasons, to accept one part of the testimony of a witness and to reject the other. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 42 In the absence of any contradiction, however, and in the absence of any element of inherent improbability, the evidence of any witness, whether a police witness or not, who gives evidence on affirmation, should normally be accepted (see Public Prosecutor v Mohamed Ali [1962] 1 MLJ 257). (Emphasis added) 52.2 CGU Insurance Bhd v Asean Security Paper Mills Sdn Bhd [2006] 3 MLJ 1; [2006] 2 CLJ 409 (CA) per Gopal Sri Ram JCA (as His Lordship then was): “[53] In our judgment, the correct approach to the judicial assessment of evidence in a case where a witness has been contradicted by his or her previous inconsistent statement is to treat the whole of the evidence of that witness with caution. But the judge must consider and accept or reject, for good reasons, the explanation given by the witness for the inconsistency. He may accept the whole or parts of the witness' evidence as inspires confidence in him as having a ring of truth for one or more reasons. For example, the evidence in question or parts of it may be consistent with the probabilities of the case or with other irrefragable evidence. Or the judge may, after paying careful attention to the demeanour of the witness, feel assured that his evidence in court is consistent with the probabilities of the case and is the truth.” [53] From documentary evidence before the Court, including direct evidence of the Plaintiff and his family members, it is manifestly plain that the Plaintiff had no intention of gifting shares in his companies to anyone, S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 43 including the Individual Defendants, but had instead always intended to retain beneficial interest in the shares of his companies. [54] Even if I am wrong, nevertheless there is a consistent course of conduct by the Plaintiff to enable Court to find a presumption of intention in favour of the Plaintiff pursuant to s.114(d) of the Evidence Act 1950, which provides: “Court may presume existence of certain fact 114. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. … (d) that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist is still in existence.” [55] With the presumption of intention, it falls on the Individual Defendants to rebut the presumption. [56] The Individual Defendants proffer of (i) a bare denial of the Plaintiff’s long-standing practice of putting shares in the names of family members and trusted third parties and the Plaintiff’s intention; (ii) feigning no knowledge of the Plaintiff’s arrangements with these family members and trusted third parties; and denial that the same arrangement applied to them and the shares they hold in the Companies do not add to their case. Bare denials do not go towards discharging the onus or evidential burden of proof S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 44 shifted to them given the weighty evidence adduced by the Plaintiff - Letchumanan Chettiar [57] Fact that the Individual Defendants are in possession of share certs of the various shareholding which they now hold do not add to their case one whit. This is because the Court will not overlook that the Plaintiff is illiterate and dependent on others to manage and handle documents. His evidence is that the share certificates were kept in a safe in Bahau. He had never relinquished possession of them. Until this dispute began, he had no cause to doubt that the share certificates would still be in the Bahau safe. It is also the Plaintiff’s evidence that Carmen Looh (DW6) and Madam Yun, the secretary, had access to the safe, and if the Individual Defendants now had possession of the share certificates, it is because Carmen Looh would have taken them out without his knowledge. This evidence is telling: GS I'm also going to suggest to you that if you took these share certificates, you took them without telling your father. DW6 I – GS In other words, your father never knew that you were holding these certificates. DW6 I didn't tell my father about taking this. GS Yes. You didn't tell your father that you had possession and were holding the share certificates. DW6 I didn't tell him. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 45 GS Good. And I have to… I'm going to say to you that your father never said to you, “Please keep these certificates”, as well. DW6 He didn't say that. [58] There you have it. Added to that, none of the other 4 Individual Defendants, have claimed that the Plaintiff had allowed them to take the share certificates, or even that he was aware they had the share certificates in their possession. I thus agree with Plaintiff’s counsel that this, puts paid to their reliance on the share certificates and it is entirely plausible that the evidence about the Individual Defendants’ possession of share certificates is more likely than not to have been as a result of legal advice rather than a natural occurrence arising from the agreement of the Plaintiff. [59] On a consideration of the entire evidence and not bits here and there, no doubt is left in my mind that the Plaintiff never intended to give the 5 children his shares; they were his children and there was no basis at that time they could not be trusted for mere e.g., this passage when he was under cross-examination: LR Can I put it to you, Dato’, you know perfectly well all these claims are not true, insofar as your five youngest children are concerned? PW1 Disagree, what you say. LR Can I also put it to you, Dato', that since Ah Peng, Ah Wei and Pik Loo acquired their shares in Prospell, they have exercised their rights as shareholders in their own right and not as a nominee? PW1 I disagree. I already said I 100% I control, I haven’t divided the family yet. Haven’t divided yet. If I am going to divide it, I am going to divide S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 46 it in an equal shares. I got nine children, three wives. I cannot be giving them to divide to only few of them specifically. What is the reason, what is the grounds? Yes, it is different if he is helping the company. Because these shares, these keys, Pik Loo has been taken it, so Pik Loo has taken it, she can actually burn it with fire or anything. Because everything I trusted my daughter, because one is a son, one is a daughter. Then, that was why I sign all to them. On the balance of probabilities, the Plaintiff has made out prima facie case that it was his consistent practice and intention that members of his family and third parties, including the Individual Defendants, always held shares in his companies as trustees and if they were directors, as his nominees. [60] Naturally, I have considered the Plaintiff’s character - as the patriarch of a large and traditional Hakka Chinese family, of a generation where the eldest son would assume responsibility for looking after his immediate and extended family. His family circumstances combined to leave him with little formal education and no literacy in English and Malay; he was working by the age of 8 as a rubber tapper. In the autumn of life, the Plaintiff has built a business empire consisting of at least 8700 acres of palm oil plantation land which generated, over the last 20 years, an average of RM25.4 million in revenue through his leadership, vision and funding. I readily agree with the Plaintiff’ counsel that “this is, by any measure, a success story, hard-earned and hard-won.” S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 47 [61] He rules the roost as the head of the family and the business he was in charge. I accept that “He was “Da Ge”, big brother, to his siblings, and was respected as the boss and the head. Many of his family members worked in the Plaintiff’s companies, including his older children. Some of them were there for decades, some for shorter periods. They were there and they helped, assisted and yes, contributed to the Plaintiff’s business.” [62] As mere example (and there are many examples) to debunk the Indvidual Defendants’ tale of “sacrifice” and contributions”, Admund Looh (PW7) being the eldest of the Plaintiff’s son and in what is the equivalent of a “Prince Charles” now “Prince Harry” in a traditional Hakka family, too had shares in the Companies that were registered in his name. Admund Looh’s unchallenged evidence was that he chose to stop his tertiary education in the UK because he did not want to financially burden the Plaintiff. Admund Looh then returned to Malaysia to assist the Plaintiff in the family business and stayed with the Plaintiff for at least 10 years. By Sampson Looh’s standards, this must surely constitute a “sacrifice”. Even so, Admund Looh did not claim that the shares belonged to him because the Plaintiff would never have given away his hard earned assets. Another example is Liong Kiu (PW5), the Plaintiff’s younger brother, also known as Uncle Hoi. Liong Kiu’s unchallenged evidence was that he had been working with his brother, the Plaintiff, for about 50 years. The Plaintiff called Liong Kiu his right-hand man. It cannot be disputed that 50 years’ service must surely count as a contribution. Sampson Looh and Liong Kiu were both registered as 50% shareholders in Mestika Cemerlang on the same day, yet only Sampson claims that the share belongs to him absolutely. Liong Kiu was steadfast that S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 48 the 50% he held was held on trust for the Plaintiff as were shares in his name in a timber company. He also corroborated the Plaintiff’s evidence that share certificates are kept in the safe in the Bahau office. [63] I reject Sampson Looh’s version of events as being inherently improbable when one takes into account the value of the shares he held in Mestika Cemerlang and Sim Lim. Mestika Cemerlang was the owner of approximately 39 acres of land in Buloh Kasap, Segamat, which Sampson accepted had a purchase price of RM8 million. This meant that his 50% shareholding, allegedly given to him in 2008 for nothing more than joining his father’s business, was worth at least RM4 million. As for Sim Lim, it was a company newly incorporated for the purpose of entering into a very valuable joint venture agreement with Yayasan Negeri Sembilan for the development of a new oil palm estate. It was most curious that Sampson Looh told no one about his father’s munificence which turned him at 25- years-old into a multi-millionaire. His reason for this silence – a fascinating but nevertheless and unbelievable “I just didn’t tell”. With respect, it was not a plausible explanation for one receiving a gift of such magnitude. I find it more probable that he did not tell because it never happened. In any case, Sampson Looh’s claim that Mestika Cemerlang and Sim Lim shares were given for his contribution was not pleaded in the Re-Amended Defence and cannot be entertained. Counsel for the Plaintiff had recorded a general reservation to object, in submissions, to any evidence that had not been pleaded. See: Instantcolor System Sdn Bhd v Inkmaker Asia Pacific Sdn Bhd [2017] 2 MLJ 697, FC at [60], Iftikar Ahmed Khan (as the executor of the estate for Sardar Mohd Roshan Khan, deceased) v Perwira Affin Bank Bhd (previously known as Perwira Habib Bank Malaysia Bhd) [2018] 2 MLJ 292, FC at [27]. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 49 [64] Neither do I find convincing the tale by the Individual Defendants have whipped up before this Court of “sacrifice” and “contributions”, of “rescuing” their father and his companies. According to them, the family business was in dire straits because of the poor management by the Plaintiff and the elder sons from the first and second family. After they joined the family business, they successfully rehabilitated the business of the plantation Companies and, these efforts so impressed or moved their father that he gave them 70% of his wealth and control over his companies and assets. Fact of the matter is, despite there were some problems with the banks on loans, the objective documentary evidence shows that at all times, the Companies had a substantial land bank which provided a surplus of assets over liabilities. The Companies’ assets could and were used to satisfy their debts. Indeed, despite the sale of assets to satisfy these loans, the Plaintiff still preserved at least approximately 8700 acres of plantation land. There is no evidence at all that any of the Individual Defendants had advanced any money at all not even one cent in personal funds to settle the company loans. Thus in alleging the companies had gone to rack and ruin at the hands of the Plaintiff and other family members and in the process exaggerating their “contributions” besides sounding hollow, particularly when as alluded earlier, added nothing to the Individual Defendants’ tale. It seems to me an ill conceived machination, and not to be countenanced by the court. As part of the restructuring which Sampson carried out, Yoke Hoh was placed under Prospell which gave him 50% indirect control of Yoke Hoh. Prior to Yoke Hoh being “moved” to becoming a subsidiary of Prospell, it together with Seatex was a subsidiary of LLT Holdings. LLT Holdings as a holding company was completely clean. It is also the Individual Defendants’ case S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 50 that part of the restructuring was a transfer of shares in Yoke Hoh from Prospell to the other 4 Individual Defendants. This too made little sense other than enriching themselves as these transfers could have occurred while Yoke Hoh was still a subsidiary of LLT Holdings except that other members of the family may have come to know of it. When the lack of logic in this was put to Sampson Looh, it was telling that he had no answer. [65] Sampson also credited himself with the ‘turning around’of the companies on the basis of the audited financial statements of Prospell for the year 2020 and 2021. However, when this evidence was tested in cross- examination, what became apparent was that any improvement in the companies’ fortunes could be directly attributed to these factors: 65.1 The injection of Sim Lim into the Plaintiff’s business. It will be recalled that the Sim Lim deal was included by the Plaintiff. 65.2 A substantial increase in the price of palm oil in 2020. In fact, Carmen Looh, Sampson Looh and Bill Looh accepted this fact during Prospell’s board of directors meeting on 25.5.2022. 65.3 By the Individual Defendants’ own evidence, the efforts of the operations staff on the plantations. [66] The other 4 Individual Defendants evidence on their contributions are not spectacular, far from it and appears to be calculated to support S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 51 Sampson’s machinations that are patently an exercise in self- aggrandisement, and a disingenuous opportunistic posturing to explain away their actions to take over 70% of the Plaintiff’s assets for themselves. The Plaintiff’s counsel aptly described their contribution as “When held up to the light however, they were nothing more than a marketing exercise or the proverbial chicken which “bertelur sebiji, riuh sekampung”. Their contributions in my view, when analysed, certainly do not outweigh that of other family members who had also contributed to the business. All things considered, there is simply no good reason for the Individual Defendants to justify their entitlement to 70% of his assets and for Samsoon Looh, if one accepts that he did make some “contributions”, it cannot reasonably or with any degree of proportion entitle him to half of the Plaintiff’s business empire and wealth in the hundreds of millions of ringgit. I do not find him to be a credible witness. [67] Notably, the Share transfer forms here to the Individual Defendants do not reflect “alleged contributions “or for love and affection; it stated money’s worth instead which Individual Defendant did not pay. [68] At any rate, it is significant that the Individual Defendants’ plea on “contributions” at Paragraph 117(c) of the Re-Amended Defence is only in respect of Yoke Hoh. There is also no plea that the sahres were given for their “continuing contribution’. The Individual Defendants are bound by their pleadings - see Instantcolor System (supra) at [60] and Iftikar Ahmed Khan (supra) at [27]. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 52 Not Gifts [69] The Plaintiff had vehemently disavowed any gift to the Individual Defendants of his shares. The evidence when analysed as a whole simply do not support the Individual Defendants posit that the Plaintiff had intended to give them such a big bounty. I accept the Plaintiff’s evidence summarized in these words that “if I truly intended to give the shares to such named shareholders as a gift instead of on a nominal basis, I would have mentioned it to my family. For example, I gifted 8 shop lots in Taman Pelating, Bahau to some of my family members, including my wives, my siblings and my children. I mentioned this openly to my family members and many are aware of this.” And he has told the Individual Defendants that they were holding his shares on trust for him. The conduct and surrounding circumstances are equally pointed, in that the Plaintiff's intention was and has always been plain. In his own words numerous times, the shares "100% are mine" and were "put name only". Counsel for the Plaintiff pointed out in fact that the Plaintiff in cross-examination said no less than 50 occasions that “he put name only”. He never once said otherwise. He also said in no less than 27 occasions to the effect that the companies / assets / shares are “100% all mine”. [70] Already in 2016, the Plaintiff was diagnosed with kidney failure. It is common ground that until this time he was vital and fully occupied in his business both on an operational and management level. After his diagnosis S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 53 in 2016 and his attempts at treatment in Switzerland it became obvious that he would need permanent dialysis. In early 2018 he moved to Ipoh and in early 2019 he moved to Penang so that his brother Dr Liong could supervise his medical treatment. [71] The evidence both direct and indirect, the facts and circumstances of the case demonstrated a deliberate plan conceived by the Individual Defendants to strip their father of his assets. It was unconscionable. [72] The indubitable evidence is the Plaintiff cannot read and write in BM or English, it was not the character of the man to be totally partial to these 5 sons and daughters as he was reasonably even handed with all his family. [73] Evidently, he the Plaintiff, had riches and wealth. Beyond any question, he was worth many millions, and many times over. [74] Such improvident gift was unusual but he was also prudent and restrained in his ways. Indeed, like most businesses, there will sometimes be cash flow problems and lean times. With such a large family and extended family to care for to boot, the Plaintiff had no choice but to be prudent and restrained, even though it was never a case of penny pinching in his spending as the children did have private schooling and overseas tertiary education, at least for those who applied/were qualified to do so. He provided for them. He had too, a good a head on his shoulders in the way he acquired and managed his assets and loans. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 54 [75] To the Plaintiff, it could be reasonably said even tapping rubber at a mere age of 8 years to help support his family, that taking care of his family and extended family was his mission in life and to build a hospital for the public to fulfil his late grandmother’s wishes. That intention withstood the passage of time from the 1970s to this day – 50 years. As Da Ge, he looks and takes care of all; That was the measure of the Plaintiff. [76] The Plaintiff's vision and fervent wish was for his assets, which he accumulated over 50 years, to be passed down through the generations for at least 50 years. The thought of breaking up his assets for distribution was anathema to him. In the draft will / trust deed – prepared by Tan Sri Rais Yatim, the Plaintiff was still seeking to distribute his assets fairly amongst his nine children; it in fact reflected equality and preservation of wealth. More on this Trust Deed later. [77] Is it then to be believed that the Plaintiff with his principle of unity, fairness, equality and preservation of wealth had love and affection only for these Individual Defendants to the extent that he divested his bulk of his assets to them, and even worse still put himself in a highly disadvantageous position of losing control of his business and be a minority shareholder and Board member? He, who was always in 100% control? [78] Rather, is there a systematic exploitation of an old and sickly man? Were those around him lining their pockets? S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 55 [79] Whether a transaction is or is not unconscionable: this is a question which depends on the particular facts of the case. [80] The facts are not edifying. Instead they were shocking… the evidence shows greed and avarice after the Individual Defendants took control of the Plaintiff’s business. I agree with the Plaintiff’s counsel that even if they made some contribution, and they ought to, considering they were paid a salary, “There is no proportionality in their assertion when taken against what they said they contributed. It was greed pure and simple”. This greed for example, is manifested in Sampson treating the company as his own private ATM machine, helping himself to millions of ringgit without any responsibility for having to put it back. What stupendously raised the eyebrows is that, Bill Looh, a director in Prospell, was not aware of this and hence could not have approved it. Apart from treating it as his private ATM machine, Sampson Looh also used the company to treat himself to lavish tastes including liposuction, haircuts and luxury cars. [81] The gifts of 70% of his wealth were so large and so improvident as not to be reasonably accounted for on the ground of the relationship of father and son or daughter. [82] In the circumstances of this case, the extraordinary bounty of 70% of his wealth equivalent to hundreds of millions handed out in the manner of say so by the Individual Defendants should excite grave and unremitting suspicion. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 56 [83] There is nothing to show that the Plaintiff was unhappy with his other children, wives and extended family in the form of his siblings and their families. They all held his affection. [84] What plausible reason then was there to explain the far reaching radical departure from his life long mission of providing fairly for all his family and extended family members and to preserve wealth? [85] It is not the character of the man to be totally partial to these Individual Defendants as he was reasonably even handed with all family members. Really, he looked after all of them. [86] Is it to be believed that the Plaintiff suddenly abandoned his life long commitment to his other family and extended family members? [87] How could it not be said that the proved or admitted facts showed a relationship of confidence and an abuse of that confidence? [88] Indeed, there is a very high degree of probability that those orgy of transfers could not have been unless he had taken leave of his senses OR if Sampson and the other 4 Individual Defendants had not used their position to obtain an advantage. This is because the transfers equivalent of 70% of wealth solely favoured them, the children of the 3rd wife and a daughter of the 2nd wife, was not satisfactorily explained. The strong suspicion that the radical change of a value and belief held for half a century were not the result of the free volition of the Plaintiff was not removed. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 57 [89] They, who took the extraordinary bounty and assumed majority power in the Plaintiff’s business have the burden of proof of that the transfers were fair and reasonable; that no advantage had been taken of the Plaintiff’s position and that no information which should have been communicated had been withheld. They failed to dispel bad faith, failed to substantiate the honesty and righteousness of the transfers. [90] In the instant case, the Individual Defendants have not adduced evidence to show that all care had been taken by them that the Plaintiff was put in possession of all material facts and information so as to enable him to decide fairly, fully and freely what he wanted to do with his property. [91] In the circumstances of this case, the Individual Defendants placed in the position they were in relation to the Plaintiff, must be in full view and complete appreciation of what he was doing. [92] In my respectful view, the Individual Defendants should, not only have drawn the Plaintiff's attention to the effects upon the execution of the transfer, but to also its consequential effect including all resolutions causing him to lose control of his business. [93] By keeping silent, they had actively concealed the material facts and thus committed dishonesty against the Plaintiff and their family members. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 58 [94] The definition of dishonesty, is set out in the judgment of Lord Nicholls in the decision of the Privy Council in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378; [1995] 3 All ER 97; [1995] 3 WLR 64 where he said: “…Honesty, indeed, does have a strong subjective element in that it is a description of a type of conduct assessed in the light of what a person actually knew at the time, as distinct from what a reasonable person would have known or appreciated. Further, honesty and its counterpart dishonesty are mostly concerned with advertent conduct, not inadvertent conduct. Carelessness is not dishonesty. Thus for the most part dishonesty is to be equated with conscious impropriety. However, these subjective characteristics of honesty do not mean that individuals are free to set their own standards of honesty in particular circumstances. The standard of what constitutes honest conduct is not subjective. Honesty is not an optional scale, with higher or lower values according to the moral standards of each individual. … “All investment involves risk. Imprudence is not dishonesty, although imprudence may be carried recklessly to lengths which call into question the honesty of the person making the decision. This is especially so if the transaction serves another purpose in which that person has an interest of his own.” “…Ultimately, in most cases, an honest person should have little difficulty in knowing whether a proposed transaction, or his participation in it, would offend the normally accepted standards of honest conduct.” [95] It is also useful to refer to s. 17 of the Contracts Act 1950 where it defines ‘fraud’ as follows: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 59 “Fraud’ includes any of the following acts committed by a party to a contract or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contracts: (a) the suggestion, as to a fact, of that which is not true by one who does not believe it to be true; (b) the active concealment of a fact by one having knowledge or belief of the fact; (c) a promise made without any intention of performing it; (d) any other act fitted to deceive; and (e) any such act or omission as the law specially declares to be fraudulent.” [96] Case laws suggest that the evidence required to prove an allegation of dishonesty, stands on the same footing as an allegation of fraud, which in most cases, would depend on circumstantial evidence to prove the allegation. In Ng Pak Cheong v Global Insurance Co Sdn Bhd [1995] 1 CLJ 223; [1995] 1 MLJ 60; [1994] 3 AMR 2663 (HC), Mohamed Dzaiddin J (as he then was) dealt with the reception of circumstantial evidence in proving fraud. The learned judge said, “...it is not the law of evidence that every step in the allegation of fraud had to be proved by calling live and admissible evidence nor is it the law that fraud cannot be inferred in the appropriate case. The inference, however, should not be made lightly; the circumstantial evidence must be so compelling and convincing that bearing in mind the high standard of proof the inference is nevertheless justified...”. [97] In CGU Insurance Berhad v Asean Security Paper Mills Sdn Bhd supra Gopal Sri Ram JCA (later FCJ) said, S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 60 “…While mere suspicion is insufficient, it is not the law that a litigant who alleges fraud must unravel each and every act of the person accused of fraud. Like any other fact, fraud may be inferred from circumstantial evidence with the added proviso that there must be a foundation of evidence and not mere suspicion.” (Emphasis added) [98] The evidence is undeniable. The individual Defendants conduct is besides being dishonest is also fraudulent, whether equitable fraud or common law fraud. To prove equitable fraud, the Plaintiff need not demonstrate that the Individual Defendants have an intention to deceive; the Plaintiff only need to show that there was a relationship of trust and confidence between the parties, and that there has been unconscionable conduct by the Individual Defendants - see Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751 FC: “[23] The 'fraud' of which Lord Halsbury spoke in Salomon v A Salomon & Co Ltd includes equitable fraud. In the recent Australian case ofThe Bell Group Ltd (In liquidation) v Westpac Banking Corporation (No 9) [2008] WASC 239; 70 ACSR 1, Owen J discussed the distinction between equitable fraud and fraud at common law. His Honour said: 4849One of the leading Australian texts on equitable principles is R Meagher, D Heydon and M Leeming, Meagher, Gummow and Lehane's Equity Doctrines and Remedies (4th Ed, 2002). When I refer to this text from time to time in these reasons I will do so by the shortened phrase 'Meagher, Gummow and Lehane'. At [12-050] the authors set out a non-exhaustive list of factual and legal situations that have traditionally been treated as species of equitable fraud. They include: (a) misrepresentation by persons under an obligation to exercise skill and discharge reliance and trust (for S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 61 example in fiduciary relationships), and inducements to contract or otherwise for the representee to act to his detriment in reliance on the representation; (b) the use of power to procure a bargain or gift, resulting in disadvantage to the other party; (c) conflict of interest against a duty arising from a fiduciary relationship; and (d) agreements which are bona fide between the parties but in fraudof third persons. ……….. 4853This, then, marks out a significant difference between common law fraud and equitable fraud. The latter does not require proof of an actual intention to deceive. To summarise, a plea of fraud at common law will not succeed absent proof of an intention to deceive. Such an intention is not an ingredient of equitable fraud which is, essentially speaking, unconscionable conduct in circumstances where there exists or is implied or imposed a relationship of trust or confidence.” See also Ktl Sdn Bhd Ktl Sdn Bhd v Leong Oow Lai [2014] MLJU 1405 at [93]. [99] As alluded earlier, that there is a relationship of trust or confidence between the Individual Defendants and the Plaintiff cannot be disputed. Their clinging on to the 70% wealth of the Plaintiff, taking over his business, and to enrich themselves at the Plaintiff’s expense is unconscionable to come S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 62 within equitable fraud. The Privy Council in Hart v O’Connor [1985] 1 AC 1000 at p 1024C described unconscionable conduct as follows: … "Fraud" in its equitable context does not mean, or is not confined to, deceit; "it means an unconscientious use of the power arising out of these circumstances and conditions" of the contracting parties; Earl of Aylesford v. Morris (1873) L.R. 8 Ch. App. 484, 491. It is victimisation, which can consist either of the active extortion of a benefit or the passive acceptance of a benefit in unconscionable circumstances. [100] The Plaintiff will have to show intention for common law fraud - Takako Sakao (supra): [23]…. The term common law fraud is often used to describe the tort of deceit, or the making of fraudulent misrepresentations. The tort of deceit is said to encompass cases where the defendant knowingly or recklessly makes a false statement, with the intention that another will rely on it to his or her detriment…….. In Armitage v Nurse [1997] EWCA Civ 1279; [1998] Ch 241; [1997] 3 WLR 1046, Millett LJ discussed the meaning of 'actual fraud' in the context of an exemption clause. At p 1053, His Lordship described actual fraud as connoting, at least, 'an intention on the part of the trustee to pursue a particular course of action, either knowing that it is contrary to the interests of the beneficiaries or being recklessly indifferent whether it is contrary to their interests or not'….. [101] Once fraud is proven, it vitiates all transactions whatsoever. Fraud unravels all. As cited by the Federal Court in Lai Fee v Wong Yu Vee [2023] 3 MLJ 503 at [63]: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 63 [63] In CIMB Bank Bhd v Maybank Trustees Bhd and other appeals, the Federal Court ruled that a party which had committed fraudulent misappropriation of trust monies could not benefit from its own fraud and that that party cannot rely on the exemption clause under the contract as a defence. Ariffin Zakaria CJ writing for the Federal Court referred to the following remarks of Lord Bingham in HIH Casualty and General Insurance Ltd, at para [15]: … fraud is a thing apart. This is not a mere slogan. It reflects an old legal rule that fraud unravels all: fraus omnia corrumpit. It also reflects the practical basis of commercial intercourse. Once fraud is proved, ‘it vitiates judgments, contracts and all transactions whatsoever’: Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at p 712, per Lord Justice Denning: ‘Parties entering into a commercial contract will no doubt recognise and accept the risk of errors and omissions in the preceding negotiations, even negligent errors and omissions. But each party will assume the honesty and good faith of the other; absent such an assumption they would not deal’. [102] I note the deafening silence too even at the three meetings/discussions prior to Plaintiff’s open-heart surgery on 29.9.2020 (“Pre-surgery Meetings”), post surgery 10 December hospital meeting, the Phone Call of 17.5.2021 and the meeting at Bahau during the ancestral memorial day on 25.12.2021 (“Bahau Meeting”) where the Plaintiff and all his children attended (except Sampson and Shandy). If the 70% of the Plaintiff’s wealth were given to them, there was not a whisper of protest nor reminder registered with the Plaintiff that these shares were no longer his. And they know conflict was brewing because one of them went and saw lawyers after the Bahau meeting. In this regard, the consistency of the S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 64 Plaintiff’s intention and wishes of a fair and equitable distribution is fortified the following: 102.1 the Individual Defendants asserted that the dinner at CRC Restaurant three days before open heart surgery was a celebration dinner and that there were no discussions of the Plaintiff’s intention of a fair and equitable distribution amongst his nine children, and the preservation of his assets and business empire. I accept the Plaintiff’s version as being inherently probable that he would have expressed his wishes and objectives, whether at the dinner at CRC restaurant or the night before surgery as the Plaintiff, facing such a major surgery and at that senior age would be fully aware of his mortality. It would not be repugnant with common sense and logic for him to wish to put his affairs in order. There is no lack of authorities on our shores including the Privy Council case of Keng Soon Finance v MK Retnam Holdings Sdn Bhd & Anor [1989] 1 MLJ 457 that the common sense approach can be applied to achieve a just result in arriving at a decision. 102.2 Carmen Looh acknowledged in the Hospital recording on 10.12.2020 secretly made by her that by the “11 people” in the recording, the Plaintiff meant all 9 children and the 2 surviving wives of the Plaintiff; she acknowledged that the shares were held on trust or as nominees as made clear from the spoken Cantonese words of “doi ling”. Her now S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 65 opportunistic explanation that she meant to say “to lead” (as opposed to “to represent”) is rejected. Significantly, she did not did not assert ownership when it was her own evidence under cross-examination that she could “stand up to the Plaintiff” in instances when the Plaintiff is wrong. In the face of multi millions weighing in the bargain for her, I reject her feeble explanation that she kept silent because “because it is already common understanding between [the Plaintiff and her]”. 102.3 The trust deed, which the Plaintiff described as his “will”, prepared by his solicitor, Tan Sri Rais Yatim, on 1. 2. 2020 and Draft Will both made provisions for the non-breakup of his assets and empire and fair distribution of the trust fund (comprising the Plaintiff’s assets) to all 9 children and spouses and supports his case of fair and equitable distribution. Notwithstanding the Individual Defendants’ contention that the Trust Deed or Will contained a list of asserts and made no mention whatsoever of the trust set up for generations, I accept the evidence of the Plaintiff and his witnesses that it does not capture all of his assets at the material time and that he only found out subsequently and that this explains the Plaintiff’s reference to and reliance on the Trust Deed during the Dec 10 Meeting. He could not have known the Trust Deed did not provide for his entire assets of 100% as he does not write and read English and S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 66 Malay and have to depend on others. If the Individual Defendants’ case is to be believed, it means the Plaintiff having already given away 70% of his assets, he will still be giving more assets to the Individual Defendants from the Plaintiff’s balance 30%. It is improbable, simply do not make sense and completely goes against the grain of his value of fair and equitable distribution if in fact he was aware the Trust Deed covers only 30% of his 100%. But he was not aware and having been made aware, he has terminated the Trust Deed. 102.4 There is then the Phone Call of 17.5.2021 between Carmen Looh and the Plaintiff again which Carmen Looh secretly recorded. Once more, she made no express assertion of ownership. It begs the burning question yet again WHY, if the shares were truly hers. And it must be borne in mind that the Plaintiff was unguarded in both the 10 December hospital meeting and the Phone Call of as he did not know his trusted daughter Carmen was secretly audio-recording both events. 102.5 At the Bahau Meeting which was expressly requested by the Plaintiff to be recorded, as opposed to Nathan’s privately and separately audio- recording of the same, Bill, Carmen and Nathan did not openly and expressly assert that the shares registered in their names or in the names of S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 67 Sampson and Shandy were given to them in consideration of their respective contribution or per the premise of their pleaded Defence. In the face of the Plaintiff’s challenge to their continued ownership of the shares, their non -assertion of ownership at the meeting is mind blowing. Why did they not confront or remind their father that the shares were given to them, if indeed it was so? The irresistible conclusion can only be they knew that the shares do not belong to them. They had ample time to prepare for the Bahau meeting as shown by the evidence. Bill, Carmen and Nathan knew 5 days beforehand of the Bahau Meeting that the Plaintiff would seek a return of the shares registered in their names. Bill and Nathan travelled together to the Bahau Meeting, these two brothers discussed the matter and according to Bill, Nathan and him would be telling the Plaintiff that the shares in their names belong to them. But they did not. At the Bahau meeting, the only meaningful words Bill said was to the effect of “wait for Sampson’s return”, Nathan defied the Plaintiff’s instructions to return the shares, spoke of unrelated and incoherent events, whilst Carmen focused on her guarantorship only arising from her directorship in the companies (as opposed to shareholding). To this, the Plaintiff asserted that he would discharge Carmen’s guarantees. They knew conflict was brewing so WHY DID THEY NOT SAY IT STRAIGHT THAT THE SHARES IN S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 68 THEIR NAME BELONG TO THEM? Obviously, it must be that the shares are their father’s and not theirs. [103] Why did it not strike the Individual Defendants at all that their father would find issue with the transfers? [104] This court as a court of conscience will not just blindly accept the 5 indiv D’s ipse dixit assertion that the transfer of shares to them is a gift but will instead protect the aged and infirm from being tricked or misled in any way by others, and yes, including his own children in whom he reposed trust and confidence into parting with his property. [105] An alleged gift must be proved, and only if a gift is proved will the law not question the rationale no matter how improvident the gift and inconsistent with hitherto values and belief. [106] Despite the purported love for their father, and each of them testified, professing that they share his values of unity, fairness, equality and preservation of family wealth, yet they cling on to the 70% and even fought their octagenarian father’s bid for an early trial. Why? Because a dead man tells no tales! And they will then have in aid of their tale, the presumption of advancement! [107] Providence made it possible for the Plaintiff to testify despite his legs being amputated in the course of trial, and the Plaintiff has given his version - that the transfers are not gifts. I believe him. Indeed, I have no S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 69 reason not to arising from corroborated and credible evidence of his witnesses. [108] It was very clear, to me that the Individual Defendants, by their stratagem of the so-called gifts were salting away and securing their own nest. [109] In the ultimate analysis, the evidence in support of the Individual Defendants that the transfers or allotment of shares are gifts to them was weak, both inherently unbelievable and inherently improbable given the circumstances of this case. I find the respective Individual Defendants’ account that the Plaintiff intended a gift to them of the shares is not credible. Considering the totality of the evidence before me, there is sufficient evidence leaning in favour of the Plaintiff’s case. [110] This means the presumption of advancement is rebutted and must be found against the Individual Defendants. The Plaintiff is entitled to all the shares registered in the Individual Defendants’ name on the basis of the pleaded trust. I make the findings that the Plaintiff contributed personally the entire acquisition of all the substantial assets associated with his empire, which began in around the 1970’s. He did not intend to give full beneficial ownership of his shares to the Individual Defendants. Despite intensive cross-examination for 19 days from his hospital bed by the individual Defendants’ counsel, the Plaintiff remained consistent throughout in his wishes and objectives, including a fair and equitable distribution of his assets to his nine children after his demise, non-division of his assets, preservation S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 70 of generational wealth and looking after the larger and extended Looh family including the Plaintiff’s siblings. [111] The entirety of the evidence in chief, the cross-examination and the re-examination, the transcripts of audio recordings of the 10 the December meeting, Phone Call and Bahau Meeting, the documentary evidence before the court, the conduct of the parties, assessed, weighed as a whole show to this court the Plaintiff’s consistent intention was always that family or third parties would hold shares for him on trust; and there is simply no good reason for the Individual Defendants to justify their entitlement to 70% of his assets. [112] The beneficial interest thus “resulted” back to the Plaintiff. The elements of imposing a constructive trust are also present such that to allow the Individual Defendants to retain the shares will be unconscionable. Whether on a resulting trust or constructive trust, the Plaintiff gets back his shares. Fraud whether equitable or common law fraud has also been proven. [113] In my considered view, on the material before the court, the Plaintiff’s counsel in their industry, had set out the facts and the relevant authorities in lucid details. I find myself to be in complete agreement with Plaintiff’s counsel’s analysis of the evidence and authorities, and am persuaded by the force of their arguments that on the facts, there was the Plaintiff’s intention to create a trust or to retain the beneficial interest in the shares of his companies. I have adopted parts of their submissions in this S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 71 judgment but find it unnecessary to deal with each and every point raised in all the submissions. Corporate Defendants [114] As for the Corporate Defendants, given the way the companies were restructured as manifested by evidence before the court, I agree with the Plaintiff’s counsel that the Corporate Defendants’ shareholdings are the result of the Individual Defendants’ “restructuring” of the Plaintiff’s assets and companies. The fate of the Corporate Defendants is inextricably linked to that of the Individual Defendants who are presently in control of the Corporate Defendants. The evidence show Sampson Looh to be clearly in the saddle, took responsibility for designing and executing the entire exercise to strip their father’s assets. Articles do not recognize Trust [115] The Individual Defendants and the Corporate Defendants also argue that the Articles of Association of the companies do not recognize a trust. I find this argument to be futile. The Articles do not vaporize the trust in favour of the Plaintiff. The Articles do not in any manner in my view affect the validity of the trust arrangement between the Plaintiff and the Individual Defendants which is of no concern to the Corporate Defendants. As between the Plaintiff and Individual Defendants, the trust can be enforced . Evaluation and assessment of the credibility of the witnesses S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 72 [116] As “evidence” is not confined to documents and the Court is enjoined by s. 3 of the Evidence Act to consider oral statements by witnesses, the evaluation and assessment of the credibility (or otherwise), of the witnesses were crucial to the present case. In assessing credibility of the witnesses, I have taken note that credibility of a witness embraces not only the concept of his truthfulness i.e. whether the evidence of the witness is to be believed but also the objective reliability of the witness i.e. his ability to observe or remember facts and events about which the witness is giving evidence and this court must pay attention to a number of factors which, inter alia, include the following as exposited by Gillen J in Sean Thornton (a minor by his mother and next friend) v Northern Ireland Housing Executive [2010] NIQB 4: (i) The inherent probability or improbability of representations of fact; (ii) The presence of independent evidence tending to corroborate or undermine any given statement of fact; (iii) The presence of contemporaneous records; (iv) The demeanour of witnesses e.g., does he equivocate in cross examination; (v) The frailty of the population at large in accurately recollecting and describing events in the distant past; (vi) Does the witness take refuge in wild speculation or uncorroborated allegations of fabrication; S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 73 (vii) Does the witness have a motive for misleading the court; and (viii) Weigh up one witness against another [117] Sir George Farwell in the Privy Council case of Bombay Cotton Manufacturing Company v Motilal Shivlal ILR 1915 39 Bom 386, PC, in addressing the credit of a witness upon cross-examination, said that ‘it is most relevant in a case where everything depends on the judge’s belief or disbelief in the witness’ story.’ [118] The tale spun by the Individual Defendants that they were given 70% of their father’s wealth is not believable to this Court and was blown to smithereens when tested under incisive cross-examination by both the Plaintiff’s counsel, Mr Gopal Sreenevasan and Mr. Robert Low. The importance of oral evidence through cross-examination is underscored by the following authorities: 118.1 Carmarthenshire County Council v Y [2017] 4 WLR 136 at [7] to [9]: 7 ….Oral evidence-in-chief now requires the permission of the judge be given. FPR r 22.11 provides the right to cross-examine a witness on his or her witness statement. Thus, the general rule is that facts in issue are to be proved by written evidence-in- chief and oral evidence given under cross-examination. Of course, facts may also be proved by hearsay evidence pursuant to the Civil Evidence Act 1998 and FPR rr 23.2–23.5, but the general rule is that oral evidence given under cross-examination is the gold standard. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 74 8 Why is this? It is because it reflects the long-established common-law consensus that the best way of assessing the reliability of evidence is by confronting the witness. In Crawford v Washington (2004) 124 S Ct 1354, para 62 Scalia J, when discussing the explicit command to afford cross- examination of witnesses in criminal cases contained within the Sixth Amendment to the US Constitution, stated: “To be sure, the clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined. Cf 3 Blackstone, Commentaries, at 373 (‘This open examination of witnesses … is much more conducive to the clearing up of truth’); M Hale, History and Analysis of the Common Law of England 258 (1713) (adversarial testing ‘beats and bolts out the truth much better’).” 9 It should not be thought that this consensus or viewpoint is confined to criminal causes. Thus, in Goldberg v Kelly (1970) 397 US 254, a case about the entitlement to receive certain federal welfare benefits, Brennan J stated, at p 269: “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” 118.2 Berezovsky v Abramovich [2012] EWHC 2463 (Comm): S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 75 92. … However, it would not have been practical, given the length and complexity of the factual issues involved, for the court to have required evidence in chief to have been given orally. It was for that reason that cross-examination, in particular of Mr. Berezovsky and Mr. Abramovich, assumed such a critical importance. [119] In deciding the matter, I will make clear that I have preferred the evidence of the Plaintiff’s witnesses whom I viewed as ‘more credible’ in support of the Plaintiff’s contentions, as compared to the Defendants’ witnesses whom I found ‘evasive’ when troubling questions were put to them, and were not credible. The Defendants’ witnesses’ evidence simply do not add up. Even if there were discrepancies in the Plaintiff’s witnesses' evidence, if at all, were minor and not relevant, and on the whole, the Plaintiff’s witnesses were forthright, their evidence was comprehensive, compelling, convincing and consistent with the documents and the overall probabilities. As alluded earlier, some latitude is accorded the Plaintiff due to his advanced years, testifying from hospital, medical conditions and owing to having to cope with a translator. In the context of the entirety of the evidence before the court, any lingering doubts that I have, I would resolve in favour of the Plaintiff. Exemplary/aggravated damages [120] In Khaw Cheng Poon & Ors v Khaw Cheng Bok & Ors and another appeal [2005] 6 MLJ 540; [2005] 3 CLJ 753, Gopal Sri Ram JCA (as he then was) delivering the judgment of the Court of Appeal said: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 76 … Exemplary damages are only awarded in special circumstances. These circumstances are contained in the speech of Lord Devlin to which we have already referred, that no new categories are admissible to the Devlin list has now been settled in the decision of the House of Lords in Cassell & Co Ltd v Broome [1972] AC 1027. (Emphasis added.) [121] In Rookes v Barnard and others [1964] AC 1129, Lord Devlin stated unlike ordinary damages whose purpose is to compensate, that of exemplary damages is to punish and deter, and there are two categories of cases when it should be awarded, viz: (a) oppressive, arbitrary or unconstitutional action by the servants of Government; (b) the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff. [122] In Big Junkyard Sdn Bhd & Anor v Chan Kah Wai [2023] 1 CLJ 564 the court held: "[41] Thus, aggravated damages are given as additional compensation where there is injury to the feelings of the plaintiff that is caused by or exacerbated as a result of exceptional conduct of the defendant. The conduct must be high- handed or malicious act or an act done in an oppressive manner. Mere wrongful conduct is not sufficient. There must be something exceptional in the act that was done. The matter was lucidly stated by Lord Devlin in Rookes v Barnard [1964] AC 1129 at page 1232 as follows: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 77 I doubt whether the facts disclosed in the summing up shows even a case for aggravated damages … present there seems to be no evidence that the Respondents were motivated by malevolence or spite against the appellant ... Again in so far as disclosed in the summing up there was no evidence of offensive conduct or of arrogance or insolence. (Emphasis added.) [42] ………there are two elements relevant to the availability of an award for aggravated damages: firstly, exceptional or contumelious conduct or motive on the part of the defendant in committing the wrong; secondly, intangible loss suffered as a result by the plaintiff, that is injury to feelings or personality. Based on the above principles, the facts of the case at hand does not make out a case for aggravated damages. There is nothing exceptional about the action of the second defendant. There is no evidence of offensive conduct or arrogance or insolence of motive or that the second defendant was motivated by malevolence or spite….." [123] In Rookes v Barnard supra, Lord Devlin also expressed the view that awards of exemplary damages should be moderate and that the resources of the parties was a relevant consideration. It follows from this that an award of RM10 million sought by the Plaintiff would wreak hardship on the Individual Defendants considering their means. I find that too modest a sum would make no impact on the Individual Defendants. I have taken into consideration also the conduct of the Individual Defendants right down to the time of judgment in opposing early trial as well as denying the Plaintiff who established the family business a right of inspection of companies records until the judicial hand of intervention was sought by the Plaintiff. As children and trustee, it is the Individual Defendants bounden duty to protect the interests of their aged and illiterate father and not let their own interests and self-vested agendas conflict with their duties to their father. They took advantage of their father’s trust in S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 78 them, of his ill- health, illiteracy and old age. In Plaintiff’s counsel’s words, “They must know that the Plaintiff would agree to put shares in their names when they asked, because to him the shares were all his. They knew that the Plaintiff would not trouble with a written trust deed, because this had been his practice, for decades, with his family members. They knew, and deliberately, with intent, abused their positions of trust.” There are exceptional circumstances here. The cumulative conduct of the Individual Defendants here justify the award of exemplary damages against them but not aggravated damages. The Plaintiff is a victim of the Individual Defendants’ greed and avarice. Shakespeare’s Act 4, Scene 3 in Hamlet aptly reflects the greed here: “With this, there grows In my most ill-composed affection such A stanchless avarice that, were I king, I should cut off the nobles for their lands, Desire his jewels and this other's house; And my more-having would be as a sauce To make me hunger more, that I should forge Quarrels unjust against the good and loyal, Destroying them for wealth.” [124] For the aforesaid reasons, I order that each Individual Defendant pay a sum of RM500,000 as exemplary damages to the Plaintiff. [125] Having heard the parties on the orders to be made and clarified on 22.11.2023, there will be judgment for the Plaintiff for the orders sought in the reamended SOC as clarified on 22.11.23; consequential orders, costs of RM1,100,000.00 (subject to allocator) to be paid jointly and/or severally by S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 79 the Individual Defendants in favour of the Plaintiff, Looh Keo @ Looh Lim Teng; Costs of RM75,000.00 (subject to allocatur) to be paid jointly and/or severally by the Individual Defendants in favour of the 12th Defendant, Privilege Vintage Sdn Bhd; Interest at 5% per annum on all monetary sums (including such sum as shall be found to be due upon the taking of accounts) and costs awarded from the date of the Judgment herein until the date of full realization. The costs ordered was justifiable on account of the criterias in Order 59 r 16 ROC 2012 - interalia, this is not a run of the mill case, the trial took 49 days. [126] It has been an enjoyable trial by all accounts. I am grateful to counsel for the respective parties and thank them profusely for the very substantial efforts expended in research and their written submissions which have greatly assisted the court in arriving at a decision. Dated: 22nd November 2023 - sgd - ………………………. Liza Chan Sow Keng Judge High Court of Malaya at Kuala Lumpur COUNSEL: For the Plaintiffs : Gopal Sreenevasan (together with him, Robert Low, Karen Yong, Michelle Chiew, Chong Lip Yi and Nanthaniel Low) Messrs Robert Low & Ooi S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 80 For the 1st – 5th & 13th Defendants : Lambert Rasa - Ratnam (together with him, Andrew Chiew, Chia Oh Sheng, Lim Jun Xian and Athena Chan) Messrs Lee Hishammuddin Allen & Gledhill For the 6th – 9th, 11th & 14th Defendants : Rishwant Singh Messrs Cecil Abraham & Partners For the 12th Defendant : Ramsun Ho Messrs See Ramsun & Tan CASES CITED: Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697; [2017] 5 CLJ 418 Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61 Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1 ESPL (M) Sdn Bhd v Radio & General Engineering Sdn Bhd [2005] 2 MLJ 422 Ikumi Terada v Jemix Co Ltd & Ors And Another Appeal [2019] 1 LNS 881 Pembinaan Lagenda Unggul Sdn Bhd v Geohan Sdn Bhd [2018] MLJU 196 Geh Cheng Hooi & Ors v Equipment Dynamics Sdn Bhd and other appeals [1991] 1 MLJ 293 Yeong Ah Chee @ Yan Hon Wah v Lee Chong Hai & Anor & 13 Other Appeals [1994] 2 MLJ 614 at pg 624; [1994] 3 CLJ 20 Fawziah Holdings Sdn Bhd v Metramac Corporation Sdn Bhd & another Appeal [2006] 1 CLJ 996 S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 81 Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 Goh Jui Leang v Tay Sing Hwa [2018] 1 LNS 828 Lin Ah Moy v Lee Cheng Hor & Anor [1970] 2 MLJ 99 Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67 Tay Choo Foo v Tengku Mohd Saad Tengku Mansur & Ors And Another Appeal 2009] 1 MLJ 289; [2009] 2 CLJ 363 Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751 Zung Zang Wood Products Sdn Bhd & Ors v Kwan Chee Hang Sdn Bhd & Ors [2012] 5 MLJ 319 Soon Peng Yam & Anor v Bank of Tokyo-Mitsubishi (Malaysia) Bhd [2004] 2 MLJ 31; [2004] 1 CLJ 532 Md Zainudin bin Raujan v Public Prosecutor [2013] 3 MLJ 773 CGU Insurance Berhad v Asean Security Paper Mills Sdn Bhd [2006] 3 MLJ 1; [2006] 2 CLJ 409 Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378; [1995] 3 All ER 97; [1995] 3 WLR 64 Ng Pak Cheong v Global Insurance Co Sdn Bhd [1995] 1 CLJ 223; [1995] 1 MLJ 60; [1994] 3 AMR 2663 Hart v O’Connor [1985] 1 AC 1000 Lai Fee v Wong Yu Vee [2023] 3 MLJ 503 Keng Soon Finance v MK Retnam Holdings Sdn Bhd & Anor [1989] 1 MLJ 457 S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 82 Carmarthenshire County Council v Y [2017] 4 WLR 136 Berezovsky v Abramovich [2012] EWHC 2463 (Comm) Khaw Cheng Poon & Ors v Khaw Cheng Bok & Ors and another appeal [2005] 6 MLJ 540; [2005] 3 CLJ 753 Rookes v Barnard and others [1964] AC 1129 Big Junkyard Sdn Bhd & Anor v Chan Kah Wai [2023] 1 CLJ 564 STATUTE/LEGISLATION REFERRED: Section 3, 114(d) of the Evidence Act 1950 Section 17 of the Contracts Act 1950 S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

WA-22NCC-112-03/2022

PLAINTIF 1. ) LOOH KEO @ LOOH LIM TENG 2. ) LOOH CHAI BOON (Mendakwa sebagai wakil Plaintif Pertama) DEFENDAN 1. ) LOOH CHEE PENG 2. ) Loo Chee Peng 3. ) Looh Chee Wee 4. ) Looh Pik Loo 5. ) Looh Kit Siang 6. ) Looh Loo Yeok 7. ) PROSPELL ENTERPRISE SDN BHD 8. ) YOKE HOH SDN BHD 9. ) LOOH OIL REFINERY SDN BHD 10. ) MESTIKA CEMERLANG SDN BHD11. ) SIM LIM PLANTATIONS SDN BHD 1 2. ) PRIVILEGE VINTAGE SDN BHD1 3. ) GEORGETOWN SPECIALIST CENTRE SDN BHD1 4. ) GALAXY ATTRACTION SDN BHD

Companies and Corporations — Shares — Ownership of shares — Transfer of shares to 5 individual Defendants by illiterate Plaintiff father — Pre- existing relationship of trust and confidence — Whether Plaintiff had beneficial ownership of shares in companies — Trusts and Trustees — Characteristics of trust — Resulting Trust — Constructive trust — Importance of cross-examination — Case for award of exemplary damages made out

25/11/2023

YA Puan Liza Chan Sow Keng

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=0646c527-75bb-47dc-972c-4c1f383ccd55&Inline=true

1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) SUIT NO: WA-22NCC-112-03/2022 BETWEEN 1. LOOH KEO @ LOOH LIM TENG (NRIC No.: 420405-04-5225) 2. LOOH CHAI BOON (NRIC No.: 651019-05-5335) (Suing as P1’s attorney) … PLAINTIFFS AND 1. LOOH CHEE PENG (NRIC No.: 830122-10-5381) 2. LOOH CHEE WEE (NRIC No.: 810914-14-5885) 3. LOOH PIK LOO (NRIC No.: 820908-05-5364) 4. LOOH KIT SIANG (NRIC No.: 910426-14-5307) 5. LOOH LOO YEOK (NRIC No.: 850301-10-5668) 6. PROSPELL ENTERPRISE SDN BHD (Company No.: 199001010304 / 201874-U) 7. YOKE HOH SDN BHD (Company No.: 198201002536 / 82282-T) 8. LOOH OIL REFINERY SDN BHD (Company No.: 201301008946 / 1038788-M) 25/11/2023 19:36:23 WA-22NCC-112-03/2022 Kand. 382 S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 9. SIM LIM PLANTATONS SDN BHD (Company No.: 200701035071 / 793100-K) 10. MESTIKA CEMERLANG SDN BHD (Company No.: 199801006931 / 463058-P) 11. GALAXY ATTRACTION SDN BHD (Company No.: 200101001101 / 536857-K) 12. PRIVILEGE VINTAGE SDN BHD (Company No.: 201501043228 / 1168549-A) 13. GEORGETOWN SPECIALIST CENTRE SDN BHD (Company No.: 201601022775 / 1193714-M) 14. SEATEX PLANTATIONS SDN BHD (Company No.: 197901008221 / 52507-X) … DEFENDANTS GROUNDS OF JUDGMENT INTRODUCTION [1] This action is a family dispute where the octogenarian Plaintiff seeks the return of the shares in Companies presently registered in the names of his 5 youngest children, the 1st to 5th Defendants (“Individual Defendants”), which the Plaintiff claims are held on trust for him. Background [2] The backdrop of this case tells of a most remarkable feat of a self- made man, with only a standard one education by reason of poverty and circumstances, illiterate and unable to read in English and Malay, who S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 started working at 8 years old to help support his family, went on to build a substantial business empire and provided for his family. [3] The Plaintiff has 9 children by 3 wives. He is a traditional Hakka Chinese patriarch, an authoritative man who headed and directed both his immediate and extended family. In running the Plaintiff’s business, he was a man who expected obedience and he received it. He took responsibility for the entire family and was in turn respected by them. Dr Liong (PW8), the Plaintiff's youngest brother, explained it this way: “PW8: Let me be very clear again. Looh Lim Teng, my brother, told me "I am the owner of all these shares. When I ask you to assign to whichever nephew or make them the director, you please follow my instruction". So, I say "yes, brother, that is your share and you are my eldest brother. I follow instruction". That is the usual practice over the years. Can I add a bit? My family is a typical Hakka conventional family. We work on a very important concept called family governance. That means, we don't need contract. But by virtue of the fact he is my eldest brother and we respect him a lot, you can see over the years, all the brothers, sisters, we work tirelessly together with him. So we do not need contract. But we saw a man of honouring. That's why, when my brother asked me to do it, I will do it faithfully.” [4] 6 other family members of the Plaintiff testified to like effect comprising: Liong Kiu (PW5), the Plaintiff’s younger brother, Admund Looh (PW7), the Plaintiff’s eldest son), Desmond Looh (PW6), the Plaintiff’s 4th child; Lim Meow Fook (PW2,) Plaintiff’s brother-in-law; Lang Tuang Mauh (PW3), another of the Plaintiff’s brothers-in-law, Chan Chung Yen (PW4), the Plaintiff’s daughter-in-law (Michael Leong’s wife). S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 [5] The Individual Defendants are 5 out of 9 children of the Plaintiff. D3 is from the Plaintiff’s 2nd wife whilst D1, D2, D4 and D5 are from the Plaintiff’s 3rd wife. They were involved and had employment in the Plaintiff's business in its later years effective as follows: D1/Sampson Looh : 2008 D2/Bill Looh : 2004 D3/Carmen Looh : 2012 D4/Nathan Looh : 2011 D5/Shandy Looh : 2013 [6] At time of filing of action, the Plaintiff was 80 years of age and has had open-heart surgery in September 2020. He had to and still is undergoing dialysis on a weekly basis in Penang. [7] This action was filed as a result of the Individual Defendants’ refusal to cooperate when the Plaintiff sought to put his affairs and assets in order after his open heart surgery in September 2020. Assets built through the years of Plaintiff’s toil and efforts [8] By Bill Looh’s (DW2) own estimation, the assets of at least approximately 8700 acres of oil palm plantation land alone has a conservative value ranging between approximately RM261 million and RM348 million. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 Changes in share ownership and directorship after the individual defendants joined the Plaintiff’s business [9] The Individual Defendants presently in various combinations, control the 6th to 14th (except the 10th to 12th) Defendants at the Board and/or shareholder levels. [10] The changes in shareholding after the individual defendants joined at various times the Plaintiff’s business are: Date Company No. of Shares Percentage Sampson Looh (D1) 26.10.2007 Sim Lim Plantations Sdn Bhd 75,000 3.75% 14.04.2008 Mestika Cemerlang Sdn Bhd 1 50% 08.02.2013 Prospell Enterprise Sdn Bhd 1,000,000 50% 14.03.2013 Looh Oil Refinery Sdn Bhd 5,000 50% 08.07.2014 Prospell Enterprise Sdn Bhd 1,500,000 50% 16.02.2015 Looh Oil Refinery Sdn Bhd 50,000 1% 27.12.2016 Yoke Hoh Sdn Bhd 860,000 10% 17.01.2019 Georgetown Specialist Centre Sdn Bhd 510 51% Bill Looh (D2) 03.03.2008 Galaxy Attraction Sdn Bhd 500,000 50% 05.05.2008 Galaxy Attraction Sdn Bhd 1,900,000 50% 14.03.2013 Looh Oil Refinery Sdn Bhd 5,000 50% 02.09.2016 Privilege Vintage Sdn Bhd 10,000 1% S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 15.12.2016 Prospell Enterprise Sdn Bhd 25,000 0.5% 27.12.2016 Yoke Hoh Sdn Bhd 1,634,000 19% 23.01.2017 Prospell Enterprise Sdn Bhd 25,000 0.5% 17.01.2019 Georgetown Specialist Centre Sdn Bhd 200 20% 04.04.2019 Prospell Enterprise Sdn Bhd 450,000 9% 25.04.2019 Privilege Vintage Sdn Bhd 90,000 1% Carmen Looh (D3) 16.02.2015 Looh Oil Refinery Sdn Bhd 50,000 1% 02.09.2016 Privilege Vintage Sdn Bhd 10,000 1% 27.12.2016 Yoke Hoh Sdn Bhd 688,000 8% 19.12.2018 Georgetown Specialist Centre Sdn Bhd 490 49% 04.04.2019 Prospell Enterprise Sdn Bhd 500,000 10% 23.04.2019 Georgetown Specialist Centre Sdn Bhd 290 29% 25.04.2019 Privilege Vintage Sdn Bhd 90,000 1% Nathan Looh (D4) 02.09.2016 Privilege Vintage Sdn Bhd 10,000 1% 25.04.2019 Privilege Vintage Sdn Bhd 90,000 1% 27.12.2016 Yoke Hoh Sdn Bhd 688,000 8% Shandy Looh (D5) 02.09.2016 Privilege Vintage Sdn Bhd 10,000 1% 25.04.2019 Privilege Vintage Sdn Bhd 90,000 1% S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 27.12.2016 Yoke Hoh Sdn Bhd 430,001 5% [11] After the individual defendants joined the Plaintiff’s business, except for Shandy, the rest were appointed directors at various times as follows: Director Company Date of Appointment Sampson (D1) Prospell Enterprise Sdn Bhd 1.6.2012 Yoke Hoh Sdn Bhd 27.12.2016 Looh Oil Refinery Sdn Bhd 18.3.2013 Sim Lim Plantations Sdn Bhd 26.10.2007 Mestika Cemerlang Sdn Bhd - Galaxy Attraction Sdn Bhd - Privilege Vintage Sdn Bhd 19.11.2018 Georgetown Specialist Centre Sdn Bhd 22.1.2019 Seatex Plantations Sdn Bhd - Bill (D2) Prospell Enterprise Sdn Bhd 23.1.2017 Yoke Hoh Sdn Bhd 10.10.2006 Looh Oil Refinery Sdn Bhd 9.3.2020 Sim Lim Plantations Sdn Bhd - Mestika Cemerlang Sdn Bhd - Galaxy Attraction Sdn Bhd 24.12.2007 Privilege Vintage Sdn Bhd - Georgetown Specialist Centre Sdn Bhd 28.2.2019 Seatex Plantations Sdn Bhd 10.10.2006 Carmen (D3) Prospell Enterprise Sdn Bhd 11.4.2017 Yoke Hoh Sdn Bhd 27.12.2016 Looh Oil Refinery Sdn Bhd 18.7.2014 Sim Lim Plantations Sdn Bhd - Mestika Cemerlang Sdn Bhd - S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 Galaxy Attraction Sdn Bhd - Privilege Vintage Sdn Bhd - Georgetown Specialist Centre Sdn Bhd 17.4.2019 Seatex Plantations Sdn Bhd - Nathan (D4) Prospell Enterprise Sdn Bhd - Yoke Hoh Sdn Bhd - Looh Oil Refinery Sdn Bhd 9.3.2020 Sim Lim Plantations Sdn Bhd - Mestika Cemerlang Sdn Bhd - Galaxy Attraction Sdn Bhd - Privilege Vintage Sdn Bhd - Georgetown Specialist Centre Sdn Bhd - Seatex Plantations Sdn Bhd 4.7.2011 [12] The Individual Defendants, in various combinations, presently control the 6th to 14th (except the 10th to 12th) Defendants at the Board and/or shareholder levels. [13] It is not in dispute that the Plaintiff had a relationship of trust and confidence with the Individual Defendants, being his children and close kin. [14] In this case, the octogenarian Plaintiff claims that all the shares in the name of the Individual Defendants are held on trust. He never intended to give the shares to them. The Individual Defendants on the other hand claims that the Plaintiff has given away 70% of his wealth to them. [15] The amended defence in essence states that: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 15.1 the Plaintiff has never alleged that shares held in the Individual Defendants' names were beneficially owned by him or held on trust for him, 15.2 for the 7th Defendant (Yoke Hoh) only, the shares were transferred to the relevant Individual Defendants for their "contributions"; 15.3 a presumption of advancement / gift arises in relation to all the shares transferred to the Individual Defendants by or at the behest of the Plaintiff. [16] The parties’ respective claims were for the full beneficial interest of 70 % of his wealth, and nothing in between. Burden of proof [17] It is trite law that the Plaintiffs, have both the “burden of proof” to make out a prima facie case as well as the initial onus of proof to adduce evidence to prove their claim. The onus of proof would only shift to the Defendants if the Plaintiffs have made out a prima facie case. See for e.g., the Federal Court decision in Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697; [2017] 5 CLJ 418 where Jeffrey Tan FCJ held that: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 “[56] Thus a plaintiff has both the burden of proof as well as the initial onus of proof. In Britestone Pte Ltd v Smith & Associates Far East, Ltd [2007] 4 SLR 855, the Singapore Court of Appeal per VK Rajah JCA, delivering the judgment of the court, explained that at the start of the plaintiff’s case the burden of proof and the onus of proof coincide: … at the start of the plaintiff’s case, the legal burden of proving the existence of any relevant fact that the plaintiff must prove and the evidential burden of some (not inherently incredible) evidence of the existence of such fact coincide. Upon adduction of that evidence, the evidential burden shifts to the defendant, as the case may be, to adduce some evidence in rebuttal. If no evidence in rebuttal is adduced, the court may conclude from the evidence of the defendant. If, on the other hand, evidence in rebuttal is adduced, the evidential burden shifts back to the plaintiff. If, ultimately, the evidential burden comes to rest on the defendant, the legal burden of proof of the relevant fact would have been discharged by the plaintiff. The legal burden of proof — a permanent and enduring burden — does not shift. A party who has the legal burden of proof on any issue must discharge it throughout. Sometimes, the legal burden is spoken of, inaccurately, as ‘shifting’; but what is truly meant is that another issue has been engaged, on which the opposite party hears the legal burden of proof. [57] The rule is that ‘the onus of proof of any particular fact lies on the party who alleges it, not on him who denies it; et incumbit probation qui decit, non qui negat, Actori incibit probation … The plaintiff is bound in the first instance, to show a prima facie case, and if he leaves it imperfect, the court will not assist him. Hence the maxim Potior est condition defendantis. A plaintiff cannot obviously advantage himself by the weakness of the defence. A plaintiff’s case must stand or fall upon the evidence adduced by him. When, however, the defendant, or either litigant party, instead of denying what is alleged against S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 him, relies on some new matter which, if true, is an answer to it, the burden of proof changes sides; and he, in his turn, is bound to show a prima facie case at least and, if he leaves it imperfect, the court will not assist him. Reus excipendo fit actor’ (Woodroffe and Amir Ali, Vol 3 at pp 3190- 3191)..” [18] In the case of Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61, the Federal Court held: “Sections 101, 102, 103 and 106 of the Evidence Act 1950 deal with the burden of proof. Under s 101, it is provided that whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. Under s 102 the burden of proof lies on that person who would fail if no evidence at all were given on either side. Under s 103, the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Under s 106, when any fact is especially within the knowledge of any person the burden of proving that fact is upon him.” [19] In Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1, the Federal Court has pronounced the position of the law on the standard of proof on fraud in civil cases is that on balance of probabilities at para 49 of the judgment: “… that at law there are only two standards of proof. namely, beyond reasonable doubt for criminal cases “while it is on the balance of probabilities for civil cases. As such even if fraud is the subject in a civil claim the standard of proof is on the balance of probabilities. There is no third standard. ….” S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 The Principal Issue [20] In the tussle over the shares, the Plaintiff says that all the shares in the name of the Individual Defendants are held on trust and he never intended to give it to them but the Individual Defendants posit 70% of the Plaintiff’s wealth was given to them. This action thus raised squarely the question of whether as a matter of fact and law, there exists an express trust or a resulting trust. This pivots on the Plaintiff as transferor’s actual intention which is very fact sensitive. This intention can be direct evidence or inferred from all available evidence, including that of the Plaintiff’s conduct. [21] The Court of Appeal in ESPL (M) Sdn Bhd v Radio & General Engineering Sdn Bhd [2005] 2 MLJ 422 at [19], [24]; Ikumi Terada v Jemix Co Ltd & Ors And Another Appeal [2019] 1 LNS 881 at [38]; Pembinaan Lagenda Unggul Sdn Bhd v Geohan Sdn Bhd [2018] MLJU 196 at [96] & [97] pronounced to the effect that whether there is intention to create a trust can be determined from all the evidence before the Court. [22] If the merits are with the Plaintiff, then he will succeed otherwise his claim will be dismissed. The law on resulting and constructive trusts [23] As the subject matter involves a trust, it will thus be convenient to say a few words about the subject. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 [24] The Federal Court explained how trusts are created in Geh Cheng Hooi & Ors v Equipment Dynamics Sdn Bhd and other appeals [1991] 1 MLJ 293: "Trusts are either (i) express trusts, which are created expressly or impliedly by the actual terms of some instrument or declaration, or which by some enactment are expressly imposed on persons in relation to some property vested in them, whether or not they are already trustees of that property; or (ii) trusts arising by operation of law (other than express trust imposed by enactments) (see para 523 of 48 Halsbury's Laws of England (4th Ed)). Trusts arising by operation of law could be constructive and resulting trusts. Although we would agree with the view that a trust should not normally be imported into a commercial relationship, yet we would hold that in cases such as those involved in these appeals the court could and should consider the facts to determine whether a fiduciary relationship existed. We therefore agreed with Mr Wong that in the present cases we must consider the circumstances concerning the relationship between the parties. We were satisfied and agreed with the learned judge that in the circumstances agreements themselves do not contain an express clause that the proceeds of sale would be held on trust, as it is clearly manifested in the agreements and the correspondence concerned that it was the intention of the parties that the Emporium or its outlets as licensors should, after deduction of the fees and commissions agreed to be paid to them, make over to the concessionaires or consignors all payments by third customers. We also agreed with the learned judge and Mr Wong that the principle in Re Hallet's Estate should be applied to these cases and that the cash found in the tills of the various outlets and in the bank accounts as at 10 March 1987, are the subject matter of a trust or several trusts in favour of the concessionaires and consignors who can therefore trace the money there as well as to the proceeds of the sale to Inview Sdn Bhd.” S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 [25] Geh Cheng Hooi made clear that: 25.1 trusts can arise by operation of law, that is, either a resulting trust or constructive trust; 25.2 the court needs to consider the relationship between the parties to determine whether there is a trust; 25.3 it is not necessary to have an express clause with the word trust in it as long as the correspondence or agreement concerned manifest an intention to create a trust. [26] The Supreme Court in Yeong Ah Chee @ Yan Hon Wah v Lee Chong Hai & Anor & 13 Other Appeals [1994] 2 MLJ 614 at pg 624; [1994] 3 CLJ 20 at p 26, explained the 3 essential elements before a valid trust is said to exist: “The 3 essentials of a valid trust are (a), certainty of words (b), certainty of subject and (c) certainty of object.” [27] These 3 certainties were also discussed in Fawziah Holdings Sdn Bhd v Metramac Corporation Sdn Bhd & another Appeal [2006] 1 CLJ 996 where the Court of Appeal said: “[59] The law governing the certainty of a trust is that laid down by Lord Langdale MR in the seminal case of Knight v. Knight [1840] 49 ER 68. There it was held that for a trust to be certain three requirements must be fulfilled. First, there must be certainty of intention. Second there must be certainty of subject matter: both in terms of the corpus and the beneficial interest. Third, S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 there must be certainty of the objects of the trust. A trust is void if there is uncertainty in any of these three elements”. [28] A resulting trust gives effect to the parties implied or presumed intention. The Federal Court explained what is a resulting trust in Takako Sakao (P) v Ng Pek Yuen (P) & Anor [2009] 6 MLJ 751; [2010] 2 AMR 609 when referring to Westdeutsche Landesbank Girozentrale v Islington LBC [1996] AC 669 in the following words: "The device of a resulting trust was invented by the Court of Chancery to give effect to the implied intention of parties in relation to the acquisition and disposal of moveable or immovable property. Both types of resulting trust are traditionally regarded as examples of trusts giving effect to the common intention of the parties. A resulting trust is not imposed by law against the intentions of the trustee (as is a constructive trust) but gives effect to his presumed intention." [29] The oft-cited quote of Lord Browne-Wilkinson case of Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669, 708, explained the circumstances in which a resulting trust may arise as follows: “Under existing law a resulting trust arises in two sets of circumstances: (A) where A makes a voluntary payment to B or pays (wholly or in part) for the purchase of property which is vested either in B alone or in the joint names of A and B, there is a presumption that A did not intend to make a gift to B: the money or property is held on trust for A (if he is the sole provider of the money) or in the case of a joint purchase by A and B in shares proportionate to their contributions. It is important to stress that this is only a S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 presumption, which presumption is easily rebutted either by the counter- presumption of advancement or by direct evidence of A’s intention to make an outright transfer: see Underhill and Hayton pp. 317ff, Vandervell v. IRC [1967] 1 All ER 1 at 8,; [1967] 2 AC 291 at 312ff and Re Vandervell’s Trusts (No 2), White v. Vandervell Trustees Ltd [1974] 1 All ER 47 at 63ff,; [1974] Ch 269 at 288ff. … Both types of resulting trust are traditionally regarded as examples of trusts giving effect to the common intention of the parties. A resulting trust is not imposed by law against the intentions of the trustee (as is a constructive trust) but gives effect to his presumed intention…” (emphasis added) [30] The Court of Appeal case of in Goh Jui Leang v Tay Sing Hwa [2018] 1 LNS 828 cited with approval Lord Browne-Wilkinson’s dicta: “[38] A resulting trust is an implied trust by operation of law and is meant to restore or to jump back the equitable interest in property to its original beneficial owner. The nature is not based on the actual intention of the parties. However, it comes from the rising of presumed intention. Reference can be made in the case of Westdeutche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 where House of Lords sets out two situations: (i) Situation in which a person makes a contribution to the purchase price of property (ii) Situation in which the settlor has failed to explain the allocation of equitable interest in the property. [39] The case of Megarry J in Re Vandervell’s Trust [1974] Ch 269 suggested that there are two type of resulting trust: (i) Presumed resulting trust (ii) Automatic resulting trust S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 [40] A presumed resulting trust is made in or a transfer is made into the name of another person without any express trust being constituted. There is a presumption that the other holds property in question on resulting trust for the real purchaser or the transferor. In other words, it is created by implication as the result of a purchase in or transfer into the name of another.” (emphasis added) [31] In the case of Lin Ah Moy v Lee Cheng Hor & Anor [1970] 2 MLJ 99, the Federal Court held that inadequacy of consideration is evidence of the transferee holding the shares on resulting trust to the transferor: “…There was ample evidence for the learned trial judge to come to the conclusion that the transfers were made in trust. As regards the transfers of the 300 shares, which are the subject matter of this dispute, the learned trial judge, having seen and heard the witnesses, made a finding that there was no consideration for this transfer. Moreover, even assuming that there was consideration given by the appellant, surely inadequacy of the consideration, which was abundantly clear on the evidence, would be some evidence of a resulting trust. There can certainly be no question of a presumption of advancement in the case of a transfer from a brother to a brother or from a brother to his brother's wife. That, in our judgment, was a sufficient answer to the fifth ground of appeal that a transfer without consideration is incapable of establishing the existence of a resulting trust. It is exactly in those circumstances that the court must find a resulting trust in favour of the original transferor. It is true that a transfer without consideration creates a rebuttable presumption of a resulting trust. Was this presumption rebutted on the evidence? In our judgment, it was not. That disposed of the sixth ground of appeal.” S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 Constructive trust [32] In Takako Sakao supra, Gopal Sri Ram FCJ, one of Malaysia’s eminent jurists explained the concept and application of a constructive trust thus: [13] … Traditionally, courts have declined to provide a definition of a constructive trust. As Edmund Davies LJ said in Carl Zeiss Stiftung v Herbert Smith & Co [1969] 2 Ch 276 at p 300: English law provides no clear and all-embracing definition of a constructive trust. Its boundaries have been left perhaps deliberately vague, so as not to restrict the court by technicalities in deciding what the justice of a particular case may demand. But it appears that in this country unjust enrichment or other personal advantage is not a sine qua non. Thus in Nelson v Larholt [1948] 1 KB 339, it was not suggested that the defendant was himself one penny better off by changing an executor's cheques; yet, as he ought to have known of the executor's want of authority to draw them, he was held liable to refund the estate, both on the basis that he was a constructive trustee for the beneficiaries and on a claim for money had and received to their use. Nevertheless, the concept of unjust enrichment has its value as providing one example among many of what, for lack of a better phrase, I would call 'want of probity', a feature which recurs through and seems to connect all those cases drawn to the court's attention where a constructive trust has been held to exist. [14] In Paragon Finance plc v DB Thakerar & Co [1999] 1 All ER 400, Millett LJ (later Lord Millett) explained the concept of a constructive trust in terms that is difficult to improve: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 A constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of property (usually but not necessarily the legal estate) to assert his own beneficial interest in the property and deny the beneficial interest of another … [33] The Takako Sakao principle that that the constructive trusts arise by operation of law when unconscionable or wrongful conduct is demonstrated was cited with approval by subsequent cases of the Federal court such as: 33.1 Perbadanan Kemajuan Pertanian Selangor v JW Properties Sdn bhd [2017] 8 CLJ 392 at [58] and [59]: "[58] From decided case authorities it has been established as a principle of law that constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of the property (usually but not necessarily the legal owner) to assert his own beneficial interest in the property and deny the beneficial interest of another. (See the cases of (1) Takako Sakao v. Ng Pek Yuen & Anor. [2010] 1 CLJ 381; [2009] 6 MLJ 751 (FC) and (2) Vellasamy Pennusamy & Ors. v. Gurbachan Singh Bagawan Singh & Ors. [2012] 2 CLJ 712; [2010] 5 MLJ 437 (CA)). [59] It has also been held that a 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. (See the case of Hassan Kadir & Ors. v. Mohamed Moidu Mohamed & Anor. [2011] 5 CLJ 136 (FC)). A constructive trust is a remedial device that is employed to prevent S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 unjust enrichment. It has the effect of taking the title to the property from one person whose title unjustly enriches him, and transferring it to another who has been unjustly deprived of it. (See the case of Tay Choo Foo v. Tengku Mohd Saad Tengku Mansur & Ors. And Another Appeal [2009] 2 CLJ 363; [2009] 1 MLJ 289 CA)." 33.2 In Datuk M Kayveas v See Hong Chen & Sons Sdn Bhd & Ors [2014] 4 MLJ 64, the Federal Court elucidated: “[32] A trust is an obligation enforceable in equity, which rests on a person as owner of some property, for the benefit of another or for the advancement of certain purposes (Principles of the Law of Trusts by HAJ Ford and WA Lee). As distinct to a trust for a purpose, a beneficial owner may enforce it by a suit as in the current case. Equity, which was historically dispensed by the Chancery Court, and against his person (i.e. in personam) now compels the trustee to administer the trust in accordance with his conscience, with even a possible sanction of imprisonment until he has made good the loss caused to the trust property. On the issue of restitution, Lord Denning MR in Hussey v Palmer [1972] 3 All ER 744 had occasion to say at p 747: Although the plaintiff alleged that there was a resulting trust, I should have thought that the trust in this case, if there was one, was more in the nature of a constructive trust … By whatever name it is described, it is a trust imposed by law whenever justice and good conscience require it. It is a liberal process, founded on large principles of equity, to be applied in cases where the defendant cannot conscientiously keep the property for himself alone, but ought to allow another to have the property or a share in it. The trust may arise at the outset when the property is acquired, or later on, as the circumstances may require. It is an equitable remedy by which the court can enable an aggrieved party to obtain restitution. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 [38] From the various opinions above it may be construed that a constructive trust arises by operation of law irrespective of the intention of the parties, in circumstances where the trustee acquires property for the benefit of the beneficiary, and making it unconscionable for him to assert his own beneficial interest in the property and deny the beneficial interest of another. Being bereft of any beneficial interest, and with equity fastened upon his conscience, he cannot transfer any interest to himself let alone a third party. If he does, then a constructive trust comes into existence. An aggrieved party, by equitable remedy, may demand restitution of the property if he has been deprived of his beneficial interest.” (emphasis added) 33.3 Recently in Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67: [111] It is trite law that the intention to create a trust is applicable in situation of express trusts and not in constructive trusts. A constructive trust are trusts that may be implied in the absence of any declaration/intention of a trust, where the trustee has induced another to act to their detriment they would acquire a beneficial interest in the land/property. A characteristic feature of this trust does not owe its existence to the parties’ intention, but by operation of law. In Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751, it was held that: A constructive trust is imposed by law irrespective of the intention of the parties. And it is imposed only in certain circumstances, e.g. where there is dishonest, unconscionable or fraudulent conduct in the acquisition of property. What equity S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 does in those circumstances is to fasten upon the conscience of the holder of the property a trust in favour of another in respect of the whole or part thereof. [112] Constructive trust is viewed as a device under which equity will intervene so as to create a trust relationship between the parties in order to make a person accountable for the trust to prevent any unfairness or injustice. Equity will impose obligation on the defendant to hold the property for the benefit of another. [34] Bogert on Trusts 6th Edition, page 287, Sec. 77 states: “Constructive trusts do not arise because of the expressed intent of a settlor. They are not “intent-enforcing” trusts, but in a general way may be called “fraud-rectifying” trusts, if the word “fraud” is used in the sense of any kind of wrongdoing and not confined to an intentional false representation. It would seem preferable to treat these trusts as created by courts of equity, rather than to regard them as being brought into being as a result of acts of the parties. Whenever equity finds that one has title to property, real or personal, originally acquired by any kind of wrongdoing or, although innocently obtained, now held under such circumstances that retention of the title will result in unjust enrichment, equity may declare such title-holder to be the trustee of a trust constructed by it for the purpose of working out justice, which is merely a convenient means of remedying a wrong. It is not a trust in which the trustee is to have duties of administration lasting for an appreciable period of time, but rather a passive, temporary trust, in which the trustee’s sole duty is to transfer the title and possession to the beneficiary. The decree establishing the constructive trust amounts to a holding that the defendant ought to be treated as if he had been a trustee for the plaintiff from the time the defendant began to hold the property unconscionably. The S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 constructive trust does not exist merely because of the wrongful holding, but requires a court decree for its origin and this decree is retroactive in effect to the date when the unlawful holding began.” [35] The following excerpt from Halsbury's cited in Tay Choo Foo v Tengku Mohd Saad Tengku Mansur & Ors And Another Appeal 2009] 1 MLJ 289; [2009] 2 CLJ 363 sums up the concept and application of constructive trusts: [93] On constructive trusts, Halsbury’s Laws of England (4th Ed - Reissue) Vol 48 at pp 301–306 reads as follows: Nature of constructive trust. A constructive trust attaches by law to specific property which is neither expressly subject to any trusts nor subject to a resulting trust but which is held by a person in circumstances where it would be inequitable to allow him to assert full beneficial ownership of the property. Such a person will often hold other property in a fiduciary capacity and it will be by virtue of his ownership of or dealings with that fiduciary property that he acquired the specific property subject to the constructive trust. A stranger who receives property in circumstances where he has actual or constructive notice that it is trust property being transferred to him in breach of trust will, however, also be a constructive trustee of that property. A person who holds property on a constructive trust is a constructive trustee in respect of it. He cannot claim for himself any increase in value of the property or any profits earned by it. If he becomes bankrupt, the property is not available for his general creditors but for the beneficiaries in whose favour the constructive trust subsists." S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 Analysis and findings [36] I now turn to the evidence. I should at the outset state that the Individual Defendants’ assertion at paragraph 3.105 of their post trial submissions that prior to CS Hee & Co’s letter dated 1.3.2022, the Plaintiff never claimed the shares were held on trust for him is not true. Firstly, it is clear from the transcript of the Hospital recording on 10.12.2020 read as a whole for context, that the Plaintiff has asserted the shares are held on trust. The Plaintiff had also asserted that the 70% shares in Prospell in the names of Sampson Looh, Bill Looh and Carmen Looh were meant for the “11 people”. Secondly, the Individual Defendant’s said assertion is also contradicted by Q& A 52 – Nathan’s Main Witness Statement; Q& A 99 – Carmen’s Main Witness Statement; Q& A 92 – Bill’ s Main Witness Statement that on 25.12.2021, during the family Memorial Day (interchangeably “Bahau Meeting”), the Plaintiff had demanded that Carmen, Bill and Nathan return their shares and acknowledge in writing they are his trustees of his shares. [37] To establish a resulting trust, the Plaintiff will need to show that the Individual Defendants did not pay for the shares transferred or allotted to them, and that he had no intention of gifting the shares to the Individual Defendants which the Individual Defendants rely on as proof that the Plaintiff had no such intention. [38] In Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751, where Gopal Sri Ram FCJ held: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 [17] When A purchases Blackacre in B's name, providing, let us say, the whole of the purchase price, equity presumes that the common intention of the parties is for B to hold Blackacre on a trust that results to A. This is referred to as a presumed resulting trust. That a trust should result to A is fair and just because A provided all the money and B provided nothing. But if A is B's husband, parent or guardian or otherwise stands in loco parentis to B, then equity presumes that the common intention of the parties is to make a gift of Blackacre to B. This is referred to as the presumption of advancement. However, as the Court of Appeal pointed out in Heng Gek Kiau v Goh Koon Suan [2007] 6 CLJ 626 the correct approach to cases where a gift is asserted is: … for a court first to determine the true intention of the purchaser. The question whether the purchaser in a particular case had a donative intention is to be determined objectively through a meticulous examination of the facts and evidence of the surrounding circumstances. If after such an examination the court concludes that there was a donative intention on the part of the purchaser that is the end of the matter and there is no room for the operation of the presumption of resulting trust or advancement as the case may be. It is only where there are no or insufficient facts or evidence from which a fair inference of intention may be drawn that a court should turn to presumptions as a last resort to resolve the dispute. In arriving at this conclusion the Court of Appeal in that case applied with approval the following passage in the judgment of Gabriel Moss QC (sitting as a Deputy High Court judge) in Kyriakides v Pippas [2004] EWHC 646 (Ch) which we also regard as being good law: Where there is no declaration (of intention), the court puts itself in the position of a jury and considers all the circumstances of the case, so as to arrive at the purchaser's real intention: Snell paras 9–15. It is only where there is no evidence to contradict the S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 presumption that it will prevail: ibid. The case law has developed in such a way that even 'comparatively slight evidence' will rebut the presumption and a 'less rigid approach should also be adopted to the admissibility of evidence to rebut the presumption of advancement': Lavelle v Lavelle [2004] EWCA Civ 223 (CA) per Lord Phillips MR at para 17. I suspect the position we have now reached is that the courts will always strive to work out the real intention of the purchaser and will only give effect to the presumptions of resulting trust and advancement where the intention cannot be fathomed and a 'long-stop' or 'default' solution is needed. [39] I take note that the Individual Defendants have relied on the presumption of advancement arising out of the close relationship of father and children. The presumption of advancement no doubt gave the Individual Defendants as recipient of the shares an advantage which, if not negated, will operate to form the basis of proof. However, this was not a case where the parties were not present to give evidence of their intentions. In this significant aspect, I agree that the presumption of advancement only comes into play if the Plaintiff’s intention cannot be discerned from the evidence and the authorities cited by the parties are to be distinguished in this respect. The Plaintiff here although elderly, sickly and testified from hospital numerous days and in the course of trial, had his legs amputated, has the mental faculties or clarity of mind to provide the court with useful evidence of his intentions and personal knowledge. He had defended the presumption of advancement on the basis that he was still competent to testify as to his intentions regarding the transfer which was to create a trust or to retain the S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 beneficial interest in the shares of his companies. Unless supported by objective evidence, the presumption of advancement will not be given greater weight. [40] In assessing the Plaintiff’s evidence, I will at the outset declare that I agree with the Plaintiff’s counsel that more latitude should be given to vulnerable witnesses with medical conditions such as the Plaintiff, especially when evidence was being given through a translator - see Zung Zang Wood Products Sdn Bhd & Ors v Kwan Chee Hang Sdn Bhd & Ors [2012] 5 MLJ 319, where the Court of Appeal made the following observation about a similarly elderly and infirm witness: [59] We note, as the JC has noted, that the father was 81 years old at the time of the trial. He was frail looking and sickly. He attended each and every sitting of the trial to complete his evidence. Being the founder of the family business, he brought Mathew into the family business. He gave Mathew an overseas education and credited him with a Master's degree in Business Administration, besides substantial shares in the family business. He appointed Mathew to manage all the family companies. The JC also observed the father's demeanour, anger, disappointment and bitterness at being cheated by Mathew. He found the father to be honest and straightforward witness, albeit a bit inconsistent due to his memory lapse, confusion, old age and ill health. There was no reason for the father to lie at all, especially at his advanced age and poor health. Plaintiff’s evidence [41] The Plaintiff, as a traditional Hakka man, is a firm believer in certain core values which he tried to impart to his children. These values included S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 unity within the family, fairness, equality, and the preservation of wealth. All the Individual Defendants agreed that they too believed in these values. The Plaintiff's vision and fervent wish was for his assets, which he accumulated over 50 years, to be passed down through the generations for at least 50 years. The thought of breaking up his assets for distribution was odious to him. Witness statement PW1A 70. Q: Could you please tell this Honourable Court your family values? A: 70.1 First and foremost, I value unity within my family. I do not like my family to be divisive. 70.3 Due to my values and belief in family unity, I never intended to divide my assets. I am mindful that for a family with multiple wives and children, a division of assets is akin to a division of the family. This happens to a lot of the tycoons. I do not want that to happen to my family. Also, it is “pantang” (against my superstitious belief) to talk about division of my assets during my lifetime. 70.4 I am also mindful that having 3 wives and our respective children, I in fact have 3 families. I have strived and endeavoured to treat all my children in my 3 families equally and fairly to promote unity amongst them all. For instance, I took all of my children into my companies. I believe that by treating everyone equally, there will be less chance for disputes. They will be able to stay united and preserve the family wealth. 70.5 I have also imparted the values of fairness and equality in my children. In this regard, I often reminded Ah Wen, as my eldest son, to set an example by practising fairness and equality in his dealings with his siblings. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 70.6 I have a vision of having my wealth preserved and lasting for generations of my family, that is for 50 years with an option to extend for another 50 years. It is my wish that the welfare and interest of generations of my family (including education) will continue to be provided for and supported even after I am gone, just like how I have continuously provided for and supported my parents, my siblings, my wives and my children. I also believe in giving back to society, hence I wish to also contribute to charity using my assets. 70.7 I know this is a challenge given the Chinese saying that the wealth and/or legacy built by the 1st generation does not last past the 3rd generation. As such, I have sought and strived to ensure that my wealth and legacy would sustain and endure within the Looh family by a fair distribution of my wealth amongst my family members. I believe that fair treatment will promote unity and harmony amongst my family members, which can in turn can promote enduring prosperity. [42] These values of fairness, equality, unity, preservation of wealth imparted by their father the Plaintiff was candidly admitted by Sampson and Carmen Looh during cross-examintaion and both further testified they each believe in those values. [43] The Plaintiff testified that he personally acquired and funded the acquisition of all the substantial assets associated with his empire, which began in around the 1970’s. This was not challenged during cross- examination of the Plaintiff. Sampson Looh (DW1), Bill Looh (DW2) and Nathan Looh (DW4) confirmed that no substantial assets have been added to the Plaintiff’s empire by the Individual Defendants. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 [44] P also testified that he was the boss in the family business, he was the primary decision maker; he made all of the major decisions, including the acquisition of lands and properties and the price thereof, the acceptance of any financing, the charging of his assets or his companies’ assets to the financiers, fixing of salaries of the management personnel, and more. Particularly when it comes to any financial matters, he is the one calling the shots. He brought his family members into his companies, including his younger brothers, brother in laws and children because he trusted them to build his business empire with him. He testified that he brought his children into the family business to train them and provide them a living whilst they gained experience and contacts. He did this for each of his children, and if they left the family business to start their own ventures, he was happy for them and wished them well. Shares that were in their names were transferred back to the Plaintiff or his nominated transferee whenever required by the Plaintiff. [45] He adduced evidence to show due to his illiteracy and lack of formal education, he was required to rely on and trust, those who assisted him in his work and business dealings and was, in this sense, vulnerable. These trusted persons were mainly the Plaintiff's family members, although there were also several individuals, not of the family, who he relied on to get work done. These included, the late Tun Ninam Shah, a friend of the Plaintiff’s; Noorazman, his employee; and Wong Nam, his estate manager.: 21. Q: That brings us to the 1990s. Could you tell this Honourable Court more about your other business ventures in the 1990s? S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 A: 21.3 I recall having placed some of my trusted employees and friends in Prospell since the beginning of Prospell to either hold shares or directorships or both on my behalf. Such persons include, for instance:- i. the late Tun Ninam Shah, who was my friend; ii. Noorazman, who helped me to liaise with the Selangor State Government at that time; and iii. Wong Nam, who was my estate manager based in Bahau at that time and had been working for me since my 30s. He is my 1 st ever estate manager. [46] It is not in dispute that the Individual Defendants were involved and had employment in the Plaintiff's business in its later years, beginning with Bill Looh (DW2) in 2004. It is also not in dispute that the Plaintiff had a relationship of trust and confidence with the Individual Defendants, being his children and thus, close kin: 46.1 Under cross-examination: LR Can I refer you to ID85, Dato’, page 8? This is a members’ written resolution of Yoke Hoh dated 23.6.2017. Can we go to the body of the resolution, Dato’? Can I put it to you this resolution shows Ah Peng, Ah Wei, Pik Loo, Jit Siang and Loo Yi, as shareholders of Yoke Hoh, approved, amongst others, the execution of a 3 rd Party charge by Yoke Hoh in favour of Bank Pertanian Malaysia Berhad for banking facilities granted to Prospell. PW1 If the signing is for the use of the estate, then the signing and all, it was only me, Ah Hoi and Ah Peng only. If there is S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 going to be any signing, I should be the one who signing as a chairman. How to believe them? They only taking salaries from me, you think lah. Because last time, they said they can do it online, can go online. And then I said can do online. TRANSL Then witness said – PW1 Last time asked me to come and sign – TRANSL And then witness said – PW1 I also don’t know. I wouldn’t be giving to them. Because now for signing, now you ask me to come and sign, so the best, my lawyer has to be in there, then only I know what is he telling me to sign. Last time was different, I trusted my son and daughter. Now, everything must let the lawyer see first. Then only I can understand and then lawyer ask me to sign, then I sign. 46.2 In his witness statement WSPW1A: 57. Q: What were the considerations which you took into account in deciding who to name as the registered directors and shareholders in your companies? A: 57.1 The primary consideration is trust and loyalty. I would only name myself or persons whom I trusted at that time as the registered directors and shareholders in my companies. For instance, my wives, my siblings and in laws, my children and some of my loyal employees. 59. Q: Why does it not matter to you who are the named directors and shareholders of your companies? S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 A: 59.1 This is because it is known that the shares in the companies are mine. The named directors and shareholders of my companies were or are nominal only. They were or are merely there to represent me and they hold shares for my benefit. 59.2 Further, these persons would be persons whom I trusted at that time and would do what I instruct them to do. 60. Q: How would such named directors and shareholders of your companies know that they were or are nominal only? A: 60.1 I would have told them personally or through whoever that was handling the paperwork in respect of naming of registered directors and shareholders that these companies are mine. The fact that the companies are mine is obvious because:- i. I paid for everything in my companies; ii. I was the ultimate decision maker; and iii. such named shareholders did not pay for any shares registered in their names. 60.3 Further, I never told any of such named directors and shareholders that I gave them the shares in my companies as gifts. Everyone in my family knows that I am against the idea of dividing my assets, and I have previously mentioned that there will not be division or gifting of assets unless I expressly say so. As such, such named directors and shareholders would know that they were and are merely nominal. 60.4 In addition, if I truly intended to give the shares to such named shareholders as a gift instead of on a nominal basis, I would have mentioned it to my family. For example, I gifted 8 S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 shop lots in Taman Pelating, Bahau to some of my family members, including my wives, my siblings and my children. I mentioned this openly to my family members and many are aware of this. 62. Q: Why do you not deemed such documents in writing to be necessary for your family members? A: 62.1 All this while until the filing of this suit, all the named directors and shareholders of my companies who are my family members recognised that the companies are mine, and that they were or are merely representing me and holding shares for my benefit. They have been carrying out my instructions for decades without any issue. Essentially, I operated based on trust and belief. This is known to all. After all, they are my family members. Hence, I did not see any need to draw up any documents in writing before this. 46.3 Witness statement PW1B: 14. Q: Please refer to answer 56.1 of your Earlier Witness Statement where you mentioned that you decided and have control over who to name as the registered shareholders in your companies. Who decided on the shareholding of the registered shareholders? A: 14.1 I also decided and controlled the percentage of shares to put in the name of the registered shareholders. This has been my practice until sometime after Ah Peng started working in my companies, where I left it to Ah Peng to decide the percentage of shares to put in the names of the registered shareholders and to S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 report to me after he decided on the shareholding, because I trusted Ah Peng at that time. 14.2 2 I also trusted that Ah Peng would report to me of the decision he made on the percentage of shares as I have told him to so report. Further, Ah Peng knew full well of my practice in having nominees to hold shares on my behalf so I trusted that he would decide the shareholding of the nominees properly. In fact, Ah Peng once told me that he would act in the best interests of me and my family as he knew that the shares in his name was for the benefit of me as his beloved father and the family as a whole 46.4 In cross-examination, Sampson Looh (DW1) admitted: GS Right. Now, taking all of that into consideration, up until you have fallen out with your father, would it be fair to say that you trusted him? DW1 Yes. GS Yes, and would you say that he also trusted you? DW1 Yes. 46.5 His older brother, Bill Looh (DW2) also accepted: RL And would it be a fair statement to say that at least before this dispute started, your father trusted you? DW2 Yes. 46.6 Their half-sister, Carmen Looh (DW6) agreed: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 36 GS And would you say, and would you accept that he had trust in you? DW6 Yes. 46.7 Their sister, Shandy Looh (DW3) agreed: RL I’m going to suggest to you, as father and daughter, you have a special relationship with your father. Therefore, you owe him a duty to explain things to him properly. DW3 Yes, I do owe him explanation 46.8 Their youngest brother, Nathan Looh (DW4) recognised the special relationship although he disagreed as to the duty that came with it: RL It’s one question. Never mind, you say two. So, you agree that you have a special relationship with your father, being father and son? DW4 Yes. RL Because of that special relationship, I’m going to suggest to you that you owe him a duty to explain things to him properly. DW4 Duty to explain things? I don’t think so. RL And also because of that special relationship, you owe your father a duty to also explain to him properly all documents which he signs. DW4 I disagree. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 37 [47] That the Plaintiff was in control and the decision maker in the companies was unshaken during cross-examination and 7 of his family members PW2 to pW8, who at various times were either employed by the Plaintiff or held shares and directorships at the Plaintiff’s behest, gave consistent evidence that that the shares they had in the Plaintiff's companies were at all times held on trust for him. he is the boss and they follow his instructions. and each of them who had been a shareholder returned the shares when asked to by the Plaintiff; if they had been directors, they resigned at his request. The family members other than the 5 individual Defs who had been shareholders and directors in the P’s companies included: 47.1 Liong Kiu and Dr Liong, the Plaintiff’s brothers; 47.2 Lang Tuang Mauh and Lim Meow Fook, the Plaintiff’s brothers-in-law; 47.3 Admund Looh (PW7, Michael Leong, Jenny Looh, and Desmond Looh, the Plaintiff’s children from the 1st and 2nd families; and 47.4 Chan Chung Yen, the Plaintiff’s daughter-in-law. [48] Notably, some of these family members individuals including Admund Looh (PW7), Michael Leong, Dr Liong (PW8), Desmond Looh (PW6), Chin Yew Lian (the Plaintiff's second wife and Carmen Looh's mother and some who were not including the late Tan Peck Soo, who was the General Manager of the Plaintiff's group of companies also became S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 38 guarantors for loans that the companies took, yet none of them asserted ownership or management rights. Chan Chung Yen (PW4), Liong Kiu (PW5) and Desmond Looh (PW6) for instance in evidence, testified when asked to do so by the Plaintiff, the transfers they effected for shares held in their names was because the Plaintiff was the true and beneficial owner of the shares. Dr Liong, Tan Peck Soo and Admund Looh also became guarantors for loans taken by the companies without becoming shareholders in their own right in those companies. None of these family members paid for the shares nor received any consideration when they returned or transferred the shares to another at the Plaintiff's behest. [49] It is common ground that the 5 Individual Defendants and the Corporate Defendants also paid nothing for the transfers and allotments of shares to their names. Their evidence when analysed made it manifestly clear that they too took instructions from the Plaintiff, although when it suited them, they would say that matters were discussed with their father before decisions were made. [50] As to why there is no evidence of a written trust deed with any of his family members, the Plaintiff testified: 62. Q: Why do you not deemed such documents in writing to be necessary for your family members? A: 62.1 All this while until the filing of this suit, all the named directors and shareholders of my companies who are my family members recognised that the companies are mine, and that they were or are merely representing me and holding shares for my benefit. They have been S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 39 carrying out my instructions for decades without any issue. Essentially, I operated based on trust and belief. This is known to all. After all, they are my family members. Hence, I did not see any need to draw up any documents in writing before this. 62.2 To elaborate, I had always conducted my business and affairs in a very traditional manner, whereby everyone would have to obey my instructions. In fact, no one has ever questioned or disobeyed my instructions. A lot of times, all I had to do was just give instructions, be it in person or via phone calls, and matters will be sorted out per my instructions. To illustrate, I used to ask my brothers in law to sign documents in Kuala Lumpur. They complied and immediately travelled from Bahau to Kuala Lumpur to sign per my instructions and without any question. [51] Having looked at the matter entirely, considered the copious documents and the totality of the evidence, and having carefully considered the submissions of the parties, and giving due regard to P’s explanation I find the P’s evidence on why it was not necessary to record the nominee arrangement with the Individual Defendants , was not credibly challenged in cross-examination. Thus, P’s evidence ought to be accepted — see Soon Peng Yam & Anor v Bank of Tokyo-Mitsubishi (Malaysia) Bhd [2004] 2 MLJ 31; [2004] 1 CLJ 532 and Ayoromi Helen v Public Prosecutor [2005] 1 MLJ 699; [2005] 1 CLJ 1, where in the later case, the Court of Appeal held that: Failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness’s testimony. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 40 [52] In any event, the Plaintiff’s evidence as to why no nominee arrangement with the Individual Defendants were recorded is not inherently improbable, and I accept his evidence. I feel confident to found my conclusion on his evidence because they are his children; there was no basis not to trust them before the shares were transferred to them. There is also consistency as with other family members before these Individual Defendants joined the business and were registered as shareholders. In this regard, in assessing the facts in issue on the basis of their ‘inherent probability or improbability’ I have taken heed of amongst others, the elucidations in: 52.1 Md Zainudin bin Raujan v Public Prosecutor [2013] 3 MLJ 773 FC: [33] It is trite that the inherent probability or improbability of a fact in issue must be the prime consideration in deciding whether a witness is credible or not. It is the duty of the court to sieve the evidence and to ascertain what are the parts of the evidence tending to incriminate the accused which he accepted. In Public Prosecutor v Dato’ Seri Anwar bin Ibrahim (No 3) [1999] 2 MLJ 1 at p 79 Augustine Paul J (as he then was) summed up the tests for determining the credibility of a witness as follows: The Privy Council has stated that the real tests for either accepting or rejecting the evidence of a witness are how consistent the story is with itself, how it stands the test of cross-examination, and how far it fits in with the rest of the evidence and the circumstances of the case (see Bhojraj v Sitaram 1936 AIR PC 60). … It must, however, be observed that being unshaken in cross-examination is S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 41 not per se an all — sufficient acid test of credibility. The inherent probability or improbability of a fact in issue must be the prime consideration (see Muniandy & Ors v Public Prosecutor [1966] 1 MLJ 257). It has been held that if a witness demonstrably tells lies, his evidence must be looked upon with suspicion and treated with caution, but to say that it should be entirely rejected would be to go too far (see Khoon Chye Hin v Public Prosecutor [1961] 1 MLJ 105). It has also been held that discrepancies and contradictions there will always be in a case. In considering them, what the cour t has to decide is whether they are of such a nature as to discredit the witness entirely and render the whole of his evidence wor thless and untrustworthy (see De Silva v Public Prosecutor [1964] 1 MLJ 81). The Indian Supreme Court has pointed out that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments (see Ugar v State of Bihar 1965 AIR SC 277). It is useful to refer to Public Prosecutor v Datuk Haji H arun bin Haji Idris (No 2) [1977] 1 MLJ 15 where Raja Azlan Shah FJ (as His Highness then was) said at p 19: In my opinion, discrepancies there will always be, because in the circumstances in which the events happened, every witness does not remember the same thing and he does not remember accurately every single thing that happened... The question is whether the existence of certain discrepancies is sufficient to destroy their credibility. There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A court is fully competent, for good and cogent reasons, to accept one part of the testimony of a witness and to reject the other. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 42 In the absence of any contradiction, however, and in the absence of any element of inherent improbability, the evidence of any witness, whether a police witness or not, who gives evidence on affirmation, should normally be accepted (see Public Prosecutor v Mohamed Ali [1962] 1 MLJ 257). (Emphasis added) 52.2 CGU Insurance Bhd v Asean Security Paper Mills Sdn Bhd [2006] 3 MLJ 1; [2006] 2 CLJ 409 (CA) per Gopal Sri Ram JCA (as His Lordship then was): “[53] In our judgment, the correct approach to the judicial assessment of evidence in a case where a witness has been contradicted by his or her previous inconsistent statement is to treat the whole of the evidence of that witness with caution. But the judge must consider and accept or reject, for good reasons, the explanation given by the witness for the inconsistency. He may accept the whole or parts of the witness' evidence as inspires confidence in him as having a ring of truth for one or more reasons. For example, the evidence in question or parts of it may be consistent with the probabilities of the case or with other irrefragable evidence. Or the judge may, after paying careful attention to the demeanour of the witness, feel assured that his evidence in court is consistent with the probabilities of the case and is the truth.” [53] From documentary evidence before the Court, including direct evidence of the Plaintiff and his family members, it is manifestly plain that the Plaintiff had no intention of gifting shares in his companies to anyone, S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 43 including the Individual Defendants, but had instead always intended to retain beneficial interest in the shares of his companies. [54] Even if I am wrong, nevertheless there is a consistent course of conduct by the Plaintiff to enable Court to find a presumption of intention in favour of the Plaintiff pursuant to s.114(d) of the Evidence Act 1950, which provides: “Court may presume existence of certain fact 114. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. … (d) that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist is still in existence.” [55] With the presumption of intention, it falls on the Individual Defendants to rebut the presumption. [56] The Individual Defendants proffer of (i) a bare denial of the Plaintiff’s long-standing practice of putting shares in the names of family members and trusted third parties and the Plaintiff’s intention; (ii) feigning no knowledge of the Plaintiff’s arrangements with these family members and trusted third parties; and denial that the same arrangement applied to them and the shares they hold in the Companies do not add to their case. Bare denials do not go towards discharging the onus or evidential burden of proof S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 44 shifted to them given the weighty evidence adduced by the Plaintiff - Letchumanan Chettiar [57] Fact that the Individual Defendants are in possession of share certs of the various shareholding which they now hold do not add to their case one whit. This is because the Court will not overlook that the Plaintiff is illiterate and dependent on others to manage and handle documents. His evidence is that the share certificates were kept in a safe in Bahau. He had never relinquished possession of them. Until this dispute began, he had no cause to doubt that the share certificates would still be in the Bahau safe. It is also the Plaintiff’s evidence that Carmen Looh (DW6) and Madam Yun, the secretary, had access to the safe, and if the Individual Defendants now had possession of the share certificates, it is because Carmen Looh would have taken them out without his knowledge. This evidence is telling: GS I'm also going to suggest to you that if you took these share certificates, you took them without telling your father. DW6 I – GS In other words, your father never knew that you were holding these certificates. DW6 I didn't tell my father about taking this. GS Yes. You didn't tell your father that you had possession and were holding the share certificates. DW6 I didn't tell him. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 45 GS Good. And I have to… I'm going to say to you that your father never said to you, “Please keep these certificates”, as well. DW6 He didn't say that. [58] There you have it. Added to that, none of the other 4 Individual Defendants, have claimed that the Plaintiff had allowed them to take the share certificates, or even that he was aware they had the share certificates in their possession. I thus agree with Plaintiff’s counsel that this, puts paid to their reliance on the share certificates and it is entirely plausible that the evidence about the Individual Defendants’ possession of share certificates is more likely than not to have been as a result of legal advice rather than a natural occurrence arising from the agreement of the Plaintiff. [59] On a consideration of the entire evidence and not bits here and there, no doubt is left in my mind that the Plaintiff never intended to give the 5 children his shares; they were his children and there was no basis at that time they could not be trusted for mere e.g., this passage when he was under cross-examination: LR Can I put it to you, Dato’, you know perfectly well all these claims are not true, insofar as your five youngest children are concerned? PW1 Disagree, what you say. LR Can I also put it to you, Dato', that since Ah Peng, Ah Wei and Pik Loo acquired their shares in Prospell, they have exercised their rights as shareholders in their own right and not as a nominee? PW1 I disagree. I already said I 100% I control, I haven’t divided the family yet. Haven’t divided yet. If I am going to divide it, I am going to divide S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 46 it in an equal shares. I got nine children, three wives. I cannot be giving them to divide to only few of them specifically. What is the reason, what is the grounds? Yes, it is different if he is helping the company. Because these shares, these keys, Pik Loo has been taken it, so Pik Loo has taken it, she can actually burn it with fire or anything. Because everything I trusted my daughter, because one is a son, one is a daughter. Then, that was why I sign all to them. On the balance of probabilities, the Plaintiff has made out prima facie case that it was his consistent practice and intention that members of his family and third parties, including the Individual Defendants, always held shares in his companies as trustees and if they were directors, as his nominees. [60] Naturally, I have considered the Plaintiff’s character - as the patriarch of a large and traditional Hakka Chinese family, of a generation where the eldest son would assume responsibility for looking after his immediate and extended family. His family circumstances combined to leave him with little formal education and no literacy in English and Malay; he was working by the age of 8 as a rubber tapper. In the autumn of life, the Plaintiff has built a business empire consisting of at least 8700 acres of palm oil plantation land which generated, over the last 20 years, an average of RM25.4 million in revenue through his leadership, vision and funding. I readily agree with the Plaintiff’ counsel that “this is, by any measure, a success story, hard-earned and hard-won.” S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 47 [61] He rules the roost as the head of the family and the business he was in charge. I accept that “He was “Da Ge”, big brother, to his siblings, and was respected as the boss and the head. Many of his family members worked in the Plaintiff’s companies, including his older children. Some of them were there for decades, some for shorter periods. They were there and they helped, assisted and yes, contributed to the Plaintiff’s business.” [62] As mere example (and there are many examples) to debunk the Indvidual Defendants’ tale of “sacrifice” and contributions”, Admund Looh (PW7) being the eldest of the Plaintiff’s son and in what is the equivalent of a “Prince Charles” now “Prince Harry” in a traditional Hakka family, too had shares in the Companies that were registered in his name. Admund Looh’s unchallenged evidence was that he chose to stop his tertiary education in the UK because he did not want to financially burden the Plaintiff. Admund Looh then returned to Malaysia to assist the Plaintiff in the family business and stayed with the Plaintiff for at least 10 years. By Sampson Looh’s standards, this must surely constitute a “sacrifice”. Even so, Admund Looh did not claim that the shares belonged to him because the Plaintiff would never have given away his hard earned assets. Another example is Liong Kiu (PW5), the Plaintiff’s younger brother, also known as Uncle Hoi. Liong Kiu’s unchallenged evidence was that he had been working with his brother, the Plaintiff, for about 50 years. The Plaintiff called Liong Kiu his right-hand man. It cannot be disputed that 50 years’ service must surely count as a contribution. Sampson Looh and Liong Kiu were both registered as 50% shareholders in Mestika Cemerlang on the same day, yet only Sampson claims that the share belongs to him absolutely. Liong Kiu was steadfast that S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 48 the 50% he held was held on trust for the Plaintiff as were shares in his name in a timber company. He also corroborated the Plaintiff’s evidence that share certificates are kept in the safe in the Bahau office. [63] I reject Sampson Looh’s version of events as being inherently improbable when one takes into account the value of the shares he held in Mestika Cemerlang and Sim Lim. Mestika Cemerlang was the owner of approximately 39 acres of land in Buloh Kasap, Segamat, which Sampson accepted had a purchase price of RM8 million. This meant that his 50% shareholding, allegedly given to him in 2008 for nothing more than joining his father’s business, was worth at least RM4 million. As for Sim Lim, it was a company newly incorporated for the purpose of entering into a very valuable joint venture agreement with Yayasan Negeri Sembilan for the development of a new oil palm estate. It was most curious that Sampson Looh told no one about his father’s munificence which turned him at 25- years-old into a multi-millionaire. His reason for this silence – a fascinating but nevertheless and unbelievable “I just didn’t tell”. With respect, it was not a plausible explanation for one receiving a gift of such magnitude. I find it more probable that he did not tell because it never happened. In any case, Sampson Looh’s claim that Mestika Cemerlang and Sim Lim shares were given for his contribution was not pleaded in the Re-Amended Defence and cannot be entertained. Counsel for the Plaintiff had recorded a general reservation to object, in submissions, to any evidence that had not been pleaded. See: Instantcolor System Sdn Bhd v Inkmaker Asia Pacific Sdn Bhd [2017] 2 MLJ 697, FC at [60], Iftikar Ahmed Khan (as the executor of the estate for Sardar Mohd Roshan Khan, deceased) v Perwira Affin Bank Bhd (previously known as Perwira Habib Bank Malaysia Bhd) [2018] 2 MLJ 292, FC at [27]. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 49 [64] Neither do I find convincing the tale by the Individual Defendants have whipped up before this Court of “sacrifice” and “contributions”, of “rescuing” their father and his companies. According to them, the family business was in dire straits because of the poor management by the Plaintiff and the elder sons from the first and second family. After they joined the family business, they successfully rehabilitated the business of the plantation Companies and, these efforts so impressed or moved their father that he gave them 70% of his wealth and control over his companies and assets. Fact of the matter is, despite there were some problems with the banks on loans, the objective documentary evidence shows that at all times, the Companies had a substantial land bank which provided a surplus of assets over liabilities. The Companies’ assets could and were used to satisfy their debts. Indeed, despite the sale of assets to satisfy these loans, the Plaintiff still preserved at least approximately 8700 acres of plantation land. There is no evidence at all that any of the Individual Defendants had advanced any money at all not even one cent in personal funds to settle the company loans. Thus in alleging the companies had gone to rack and ruin at the hands of the Plaintiff and other family members and in the process exaggerating their “contributions” besides sounding hollow, particularly when as alluded earlier, added nothing to the Individual Defendants’ tale. It seems to me an ill conceived machination, and not to be countenanced by the court. As part of the restructuring which Sampson carried out, Yoke Hoh was placed under Prospell which gave him 50% indirect control of Yoke Hoh. Prior to Yoke Hoh being “moved” to becoming a subsidiary of Prospell, it together with Seatex was a subsidiary of LLT Holdings. LLT Holdings as a holding company was completely clean. It is also the Individual Defendants’ case S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 50 that part of the restructuring was a transfer of shares in Yoke Hoh from Prospell to the other 4 Individual Defendants. This too made little sense other than enriching themselves as these transfers could have occurred while Yoke Hoh was still a subsidiary of LLT Holdings except that other members of the family may have come to know of it. When the lack of logic in this was put to Sampson Looh, it was telling that he had no answer. [65] Sampson also credited himself with the ‘turning around’of the companies on the basis of the audited financial statements of Prospell for the year 2020 and 2021. However, when this evidence was tested in cross- examination, what became apparent was that any improvement in the companies’ fortunes could be directly attributed to these factors: 65.1 The injection of Sim Lim into the Plaintiff’s business. It will be recalled that the Sim Lim deal was included by the Plaintiff. 65.2 A substantial increase in the price of palm oil in 2020. In fact, Carmen Looh, Sampson Looh and Bill Looh accepted this fact during Prospell’s board of directors meeting on 25.5.2022. 65.3 By the Individual Defendants’ own evidence, the efforts of the operations staff on the plantations. [66] The other 4 Individual Defendants evidence on their contributions are not spectacular, far from it and appears to be calculated to support S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 51 Sampson’s machinations that are patently an exercise in self- aggrandisement, and a disingenuous opportunistic posturing to explain away their actions to take over 70% of the Plaintiff’s assets for themselves. The Plaintiff’s counsel aptly described their contribution as “When held up to the light however, they were nothing more than a marketing exercise or the proverbial chicken which “bertelur sebiji, riuh sekampung”. Their contributions in my view, when analysed, certainly do not outweigh that of other family members who had also contributed to the business. All things considered, there is simply no good reason for the Individual Defendants to justify their entitlement to 70% of his assets and for Samsoon Looh, if one accepts that he did make some “contributions”, it cannot reasonably or with any degree of proportion entitle him to half of the Plaintiff’s business empire and wealth in the hundreds of millions of ringgit. I do not find him to be a credible witness. [67] Notably, the Share transfer forms here to the Individual Defendants do not reflect “alleged contributions “or for love and affection; it stated money’s worth instead which Individual Defendant did not pay. [68] At any rate, it is significant that the Individual Defendants’ plea on “contributions” at Paragraph 117(c) of the Re-Amended Defence is only in respect of Yoke Hoh. There is also no plea that the sahres were given for their “continuing contribution’. The Individual Defendants are bound by their pleadings - see Instantcolor System (supra) at [60] and Iftikar Ahmed Khan (supra) at [27]. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 52 Not Gifts [69] The Plaintiff had vehemently disavowed any gift to the Individual Defendants of his shares. The evidence when analysed as a whole simply do not support the Individual Defendants posit that the Plaintiff had intended to give them such a big bounty. I accept the Plaintiff’s evidence summarized in these words that “if I truly intended to give the shares to such named shareholders as a gift instead of on a nominal basis, I would have mentioned it to my family. For example, I gifted 8 shop lots in Taman Pelating, Bahau to some of my family members, including my wives, my siblings and my children. I mentioned this openly to my family members and many are aware of this.” And he has told the Individual Defendants that they were holding his shares on trust for him. The conduct and surrounding circumstances are equally pointed, in that the Plaintiff's intention was and has always been plain. In his own words numerous times, the shares "100% are mine" and were "put name only". Counsel for the Plaintiff pointed out in fact that the Plaintiff in cross-examination said no less than 50 occasions that “he put name only”. He never once said otherwise. He also said in no less than 27 occasions to the effect that the companies / assets / shares are “100% all mine”. [70] Already in 2016, the Plaintiff was diagnosed with kidney failure. It is common ground that until this time he was vital and fully occupied in his business both on an operational and management level. After his diagnosis S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 53 in 2016 and his attempts at treatment in Switzerland it became obvious that he would need permanent dialysis. In early 2018 he moved to Ipoh and in early 2019 he moved to Penang so that his brother Dr Liong could supervise his medical treatment. [71] The evidence both direct and indirect, the facts and circumstances of the case demonstrated a deliberate plan conceived by the Individual Defendants to strip their father of his assets. It was unconscionable. [72] The indubitable evidence is the Plaintiff cannot read and write in BM or English, it was not the character of the man to be totally partial to these 5 sons and daughters as he was reasonably even handed with all his family. [73] Evidently, he the Plaintiff, had riches and wealth. Beyond any question, he was worth many millions, and many times over. [74] Such improvident gift was unusual but he was also prudent and restrained in his ways. Indeed, like most businesses, there will sometimes be cash flow problems and lean times. With such a large family and extended family to care for to boot, the Plaintiff had no choice but to be prudent and restrained, even though it was never a case of penny pinching in his spending as the children did have private schooling and overseas tertiary education, at least for those who applied/were qualified to do so. He provided for them. He had too, a good a head on his shoulders in the way he acquired and managed his assets and loans. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 54 [75] To the Plaintiff, it could be reasonably said even tapping rubber at a mere age of 8 years to help support his family, that taking care of his family and extended family was his mission in life and to build a hospital for the public to fulfil his late grandmother’s wishes. That intention withstood the passage of time from the 1970s to this day – 50 years. As Da Ge, he looks and takes care of all; That was the measure of the Plaintiff. [76] The Plaintiff's vision and fervent wish was for his assets, which he accumulated over 50 years, to be passed down through the generations for at least 50 years. The thought of breaking up his assets for distribution was anathema to him. In the draft will / trust deed – prepared by Tan Sri Rais Yatim, the Plaintiff was still seeking to distribute his assets fairly amongst his nine children; it in fact reflected equality and preservation of wealth. More on this Trust Deed later. [77] Is it then to be believed that the Plaintiff with his principle of unity, fairness, equality and preservation of wealth had love and affection only for these Individual Defendants to the extent that he divested his bulk of his assets to them, and even worse still put himself in a highly disadvantageous position of losing control of his business and be a minority shareholder and Board member? He, who was always in 100% control? [78] Rather, is there a systematic exploitation of an old and sickly man? Were those around him lining their pockets? S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 55 [79] Whether a transaction is or is not unconscionable: this is a question which depends on the particular facts of the case. [80] The facts are not edifying. Instead they were shocking… the evidence shows greed and avarice after the Individual Defendants took control of the Plaintiff’s business. I agree with the Plaintiff’s counsel that even if they made some contribution, and they ought to, considering they were paid a salary, “There is no proportionality in their assertion when taken against what they said they contributed. It was greed pure and simple”. This greed for example, is manifested in Sampson treating the company as his own private ATM machine, helping himself to millions of ringgit without any responsibility for having to put it back. What stupendously raised the eyebrows is that, Bill Looh, a director in Prospell, was not aware of this and hence could not have approved it. Apart from treating it as his private ATM machine, Sampson Looh also used the company to treat himself to lavish tastes including liposuction, haircuts and luxury cars. [81] The gifts of 70% of his wealth were so large and so improvident as not to be reasonably accounted for on the ground of the relationship of father and son or daughter. [82] In the circumstances of this case, the extraordinary bounty of 70% of his wealth equivalent to hundreds of millions handed out in the manner of say so by the Individual Defendants should excite grave and unremitting suspicion. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 56 [83] There is nothing to show that the Plaintiff was unhappy with his other children, wives and extended family in the form of his siblings and their families. They all held his affection. [84] What plausible reason then was there to explain the far reaching radical departure from his life long mission of providing fairly for all his family and extended family members and to preserve wealth? [85] It is not the character of the man to be totally partial to these Individual Defendants as he was reasonably even handed with all family members. Really, he looked after all of them. [86] Is it to be believed that the Plaintiff suddenly abandoned his life long commitment to his other family and extended family members? [87] How could it not be said that the proved or admitted facts showed a relationship of confidence and an abuse of that confidence? [88] Indeed, there is a very high degree of probability that those orgy of transfers could not have been unless he had taken leave of his senses OR if Sampson and the other 4 Individual Defendants had not used their position to obtain an advantage. This is because the transfers equivalent of 70% of wealth solely favoured them, the children of the 3rd wife and a daughter of the 2nd wife, was not satisfactorily explained. The strong suspicion that the radical change of a value and belief held for half a century were not the result of the free volition of the Plaintiff was not removed. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 57 [89] They, who took the extraordinary bounty and assumed majority power in the Plaintiff’s business have the burden of proof of that the transfers were fair and reasonable; that no advantage had been taken of the Plaintiff’s position and that no information which should have been communicated had been withheld. They failed to dispel bad faith, failed to substantiate the honesty and righteousness of the transfers. [90] In the instant case, the Individual Defendants have not adduced evidence to show that all care had been taken by them that the Plaintiff was put in possession of all material facts and information so as to enable him to decide fairly, fully and freely what he wanted to do with his property. [91] In the circumstances of this case, the Individual Defendants placed in the position they were in relation to the Plaintiff, must be in full view and complete appreciation of what he was doing. [92] In my respectful view, the Individual Defendants should, not only have drawn the Plaintiff's attention to the effects upon the execution of the transfer, but to also its consequential effect including all resolutions causing him to lose control of his business. [93] By keeping silent, they had actively concealed the material facts and thus committed dishonesty against the Plaintiff and their family members. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 58 [94] The definition of dishonesty, is set out in the judgment of Lord Nicholls in the decision of the Privy Council in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378; [1995] 3 All ER 97; [1995] 3 WLR 64 where he said: “…Honesty, indeed, does have a strong subjective element in that it is a description of a type of conduct assessed in the light of what a person actually knew at the time, as distinct from what a reasonable person would have known or appreciated. Further, honesty and its counterpart dishonesty are mostly concerned with advertent conduct, not inadvertent conduct. Carelessness is not dishonesty. Thus for the most part dishonesty is to be equated with conscious impropriety. However, these subjective characteristics of honesty do not mean that individuals are free to set their own standards of honesty in particular circumstances. The standard of what constitutes honest conduct is not subjective. Honesty is not an optional scale, with higher or lower values according to the moral standards of each individual. … “All investment involves risk. Imprudence is not dishonesty, although imprudence may be carried recklessly to lengths which call into question the honesty of the person making the decision. This is especially so if the transaction serves another purpose in which that person has an interest of his own.” “…Ultimately, in most cases, an honest person should have little difficulty in knowing whether a proposed transaction, or his participation in it, would offend the normally accepted standards of honest conduct.” [95] It is also useful to refer to s. 17 of the Contracts Act 1950 where it defines ‘fraud’ as follows: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 59 “Fraud’ includes any of the following acts committed by a party to a contract or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contracts: (a) the suggestion, as to a fact, of that which is not true by one who does not believe it to be true; (b) the active concealment of a fact by one having knowledge or belief of the fact; (c) a promise made without any intention of performing it; (d) any other act fitted to deceive; and (e) any such act or omission as the law specially declares to be fraudulent.” [96] Case laws suggest that the evidence required to prove an allegation of dishonesty, stands on the same footing as an allegation of fraud, which in most cases, would depend on circumstantial evidence to prove the allegation. In Ng Pak Cheong v Global Insurance Co Sdn Bhd [1995] 1 CLJ 223; [1995] 1 MLJ 60; [1994] 3 AMR 2663 (HC), Mohamed Dzaiddin J (as he then was) dealt with the reception of circumstantial evidence in proving fraud. The learned judge said, “...it is not the law of evidence that every step in the allegation of fraud had to be proved by calling live and admissible evidence nor is it the law that fraud cannot be inferred in the appropriate case. The inference, however, should not be made lightly; the circumstantial evidence must be so compelling and convincing that bearing in mind the high standard of proof the inference is nevertheless justified...”. [97] In CGU Insurance Berhad v Asean Security Paper Mills Sdn Bhd supra Gopal Sri Ram JCA (later FCJ) said, S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 60 “…While mere suspicion is insufficient, it is not the law that a litigant who alleges fraud must unravel each and every act of the person accused of fraud. Like any other fact, fraud may be inferred from circumstantial evidence with the added proviso that there must be a foundation of evidence and not mere suspicion.” (Emphasis added) [98] The evidence is undeniable. The individual Defendants conduct is besides being dishonest is also fraudulent, whether equitable fraud or common law fraud. To prove equitable fraud, the Plaintiff need not demonstrate that the Individual Defendants have an intention to deceive; the Plaintiff only need to show that there was a relationship of trust and confidence between the parties, and that there has been unconscionable conduct by the Individual Defendants - see Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751 FC: “[23] The 'fraud' of which Lord Halsbury spoke in Salomon v A Salomon & Co Ltd includes equitable fraud. In the recent Australian case ofThe Bell Group Ltd (In liquidation) v Westpac Banking Corporation (No 9) [2008] WASC 239; 70 ACSR 1, Owen J discussed the distinction between equitable fraud and fraud at common law. His Honour said: 4849One of the leading Australian texts on equitable principles is R Meagher, D Heydon and M Leeming, Meagher, Gummow and Lehane's Equity Doctrines and Remedies (4th Ed, 2002). When I refer to this text from time to time in these reasons I will do so by the shortened phrase 'Meagher, Gummow and Lehane'. At [12-050] the authors set out a non-exhaustive list of factual and legal situations that have traditionally been treated as species of equitable fraud. They include: (a) misrepresentation by persons under an obligation to exercise skill and discharge reliance and trust (for S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 61 example in fiduciary relationships), and inducements to contract or otherwise for the representee to act to his detriment in reliance on the representation; (b) the use of power to procure a bargain or gift, resulting in disadvantage to the other party; (c) conflict of interest against a duty arising from a fiduciary relationship; and (d) agreements which are bona fide between the parties but in fraudof third persons. ……….. 4853This, then, marks out a significant difference between common law fraud and equitable fraud. The latter does not require proof of an actual intention to deceive. To summarise, a plea of fraud at common law will not succeed absent proof of an intention to deceive. Such an intention is not an ingredient of equitable fraud which is, essentially speaking, unconscionable conduct in circumstances where there exists or is implied or imposed a relationship of trust or confidence.” See also Ktl Sdn Bhd Ktl Sdn Bhd v Leong Oow Lai [2014] MLJU 1405 at [93]. [99] As alluded earlier, that there is a relationship of trust or confidence between the Individual Defendants and the Plaintiff cannot be disputed. Their clinging on to the 70% wealth of the Plaintiff, taking over his business, and to enrich themselves at the Plaintiff’s expense is unconscionable to come S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 62 within equitable fraud. The Privy Council in Hart v O’Connor [1985] 1 AC 1000 at p 1024C described unconscionable conduct as follows: … "Fraud" in its equitable context does not mean, or is not confined to, deceit; "it means an unconscientious use of the power arising out of these circumstances and conditions" of the contracting parties; Earl of Aylesford v. Morris (1873) L.R. 8 Ch. App. 484, 491. It is victimisation, which can consist either of the active extortion of a benefit or the passive acceptance of a benefit in unconscionable circumstances. [100] The Plaintiff will have to show intention for common law fraud - Takako Sakao (supra): [23]…. The term common law fraud is often used to describe the tort of deceit, or the making of fraudulent misrepresentations. The tort of deceit is said to encompass cases where the defendant knowingly or recklessly makes a false statement, with the intention that another will rely on it to his or her detriment…….. In Armitage v Nurse [1997] EWCA Civ 1279; [1998] Ch 241; [1997] 3 WLR 1046, Millett LJ discussed the meaning of 'actual fraud' in the context of an exemption clause. At p 1053, His Lordship described actual fraud as connoting, at least, 'an intention on the part of the trustee to pursue a particular course of action, either knowing that it is contrary to the interests of the beneficiaries or being recklessly indifferent whether it is contrary to their interests or not'….. [101] Once fraud is proven, it vitiates all transactions whatsoever. Fraud unravels all. As cited by the Federal Court in Lai Fee v Wong Yu Vee [2023] 3 MLJ 503 at [63]: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 63 [63] In CIMB Bank Bhd v Maybank Trustees Bhd and other appeals, the Federal Court ruled that a party which had committed fraudulent misappropriation of trust monies could not benefit from its own fraud and that that party cannot rely on the exemption clause under the contract as a defence. Ariffin Zakaria CJ writing for the Federal Court referred to the following remarks of Lord Bingham in HIH Casualty and General Insurance Ltd, at para [15]: … fraud is a thing apart. This is not a mere slogan. It reflects an old legal rule that fraud unravels all: fraus omnia corrumpit. It also reflects the practical basis of commercial intercourse. Once fraud is proved, ‘it vitiates judgments, contracts and all transactions whatsoever’: Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at p 712, per Lord Justice Denning: ‘Parties entering into a commercial contract will no doubt recognise and accept the risk of errors and omissions in the preceding negotiations, even negligent errors and omissions. But each party will assume the honesty and good faith of the other; absent such an assumption they would not deal’. [102] I note the deafening silence too even at the three meetings/discussions prior to Plaintiff’s open-heart surgery on 29.9.2020 (“Pre-surgery Meetings”), post surgery 10 December hospital meeting, the Phone Call of 17.5.2021 and the meeting at Bahau during the ancestral memorial day on 25.12.2021 (“Bahau Meeting”) where the Plaintiff and all his children attended (except Sampson and Shandy). If the 70% of the Plaintiff’s wealth were given to them, there was not a whisper of protest nor reminder registered with the Plaintiff that these shares were no longer his. And they know conflict was brewing because one of them went and saw lawyers after the Bahau meeting. In this regard, the consistency of the S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 64 Plaintiff’s intention and wishes of a fair and equitable distribution is fortified the following: 102.1 the Individual Defendants asserted that the dinner at CRC Restaurant three days before open heart surgery was a celebration dinner and that there were no discussions of the Plaintiff’s intention of a fair and equitable distribution amongst his nine children, and the preservation of his assets and business empire. I accept the Plaintiff’s version as being inherently probable that he would have expressed his wishes and objectives, whether at the dinner at CRC restaurant or the night before surgery as the Plaintiff, facing such a major surgery and at that senior age would be fully aware of his mortality. It would not be repugnant with common sense and logic for him to wish to put his affairs in order. There is no lack of authorities on our shores including the Privy Council case of Keng Soon Finance v MK Retnam Holdings Sdn Bhd & Anor [1989] 1 MLJ 457 that the common sense approach can be applied to achieve a just result in arriving at a decision. 102.2 Carmen Looh acknowledged in the Hospital recording on 10.12.2020 secretly made by her that by the “11 people” in the recording, the Plaintiff meant all 9 children and the 2 surviving wives of the Plaintiff; she acknowledged that the shares were held on trust or as nominees as made clear from the spoken Cantonese words of “doi ling”. Her now S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 65 opportunistic explanation that she meant to say “to lead” (as opposed to “to represent”) is rejected. Significantly, she did not did not assert ownership when it was her own evidence under cross-examination that she could “stand up to the Plaintiff” in instances when the Plaintiff is wrong. In the face of multi millions weighing in the bargain for her, I reject her feeble explanation that she kept silent because “because it is already common understanding between [the Plaintiff and her]”. 102.3 The trust deed, which the Plaintiff described as his “will”, prepared by his solicitor, Tan Sri Rais Yatim, on 1. 2. 2020 and Draft Will both made provisions for the non-breakup of his assets and empire and fair distribution of the trust fund (comprising the Plaintiff’s assets) to all 9 children and spouses and supports his case of fair and equitable distribution. Notwithstanding the Individual Defendants’ contention that the Trust Deed or Will contained a list of asserts and made no mention whatsoever of the trust set up for generations, I accept the evidence of the Plaintiff and his witnesses that it does not capture all of his assets at the material time and that he only found out subsequently and that this explains the Plaintiff’s reference to and reliance on the Trust Deed during the Dec 10 Meeting. He could not have known the Trust Deed did not provide for his entire assets of 100% as he does not write and read English and S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 66 Malay and have to depend on others. If the Individual Defendants’ case is to be believed, it means the Plaintiff having already given away 70% of his assets, he will still be giving more assets to the Individual Defendants from the Plaintiff’s balance 30%. It is improbable, simply do not make sense and completely goes against the grain of his value of fair and equitable distribution if in fact he was aware the Trust Deed covers only 30% of his 100%. But he was not aware and having been made aware, he has terminated the Trust Deed. 102.4 There is then the Phone Call of 17.5.2021 between Carmen Looh and the Plaintiff again which Carmen Looh secretly recorded. Once more, she made no express assertion of ownership. It begs the burning question yet again WHY, if the shares were truly hers. And it must be borne in mind that the Plaintiff was unguarded in both the 10 December hospital meeting and the Phone Call of as he did not know his trusted daughter Carmen was secretly audio-recording both events. 102.5 At the Bahau Meeting which was expressly requested by the Plaintiff to be recorded, as opposed to Nathan’s privately and separately audio- recording of the same, Bill, Carmen and Nathan did not openly and expressly assert that the shares registered in their names or in the names of S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 67 Sampson and Shandy were given to them in consideration of their respective contribution or per the premise of their pleaded Defence. In the face of the Plaintiff’s challenge to their continued ownership of the shares, their non -assertion of ownership at the meeting is mind blowing. Why did they not confront or remind their father that the shares were given to them, if indeed it was so? The irresistible conclusion can only be they knew that the shares do not belong to them. They had ample time to prepare for the Bahau meeting as shown by the evidence. Bill, Carmen and Nathan knew 5 days beforehand of the Bahau Meeting that the Plaintiff would seek a return of the shares registered in their names. Bill and Nathan travelled together to the Bahau Meeting, these two brothers discussed the matter and according to Bill, Nathan and him would be telling the Plaintiff that the shares in their names belong to them. But they did not. At the Bahau meeting, the only meaningful words Bill said was to the effect of “wait for Sampson’s return”, Nathan defied the Plaintiff’s instructions to return the shares, spoke of unrelated and incoherent events, whilst Carmen focused on her guarantorship only arising from her directorship in the companies (as opposed to shareholding). To this, the Plaintiff asserted that he would discharge Carmen’s guarantees. They knew conflict was brewing so WHY DID THEY NOT SAY IT STRAIGHT THAT THE SHARES IN S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 68 THEIR NAME BELONG TO THEM? Obviously, it must be that the shares are their father’s and not theirs. [103] Why did it not strike the Individual Defendants at all that their father would find issue with the transfers? [104] This court as a court of conscience will not just blindly accept the 5 indiv D’s ipse dixit assertion that the transfer of shares to them is a gift but will instead protect the aged and infirm from being tricked or misled in any way by others, and yes, including his own children in whom he reposed trust and confidence into parting with his property. [105] An alleged gift must be proved, and only if a gift is proved will the law not question the rationale no matter how improvident the gift and inconsistent with hitherto values and belief. [106] Despite the purported love for their father, and each of them testified, professing that they share his values of unity, fairness, equality and preservation of family wealth, yet they cling on to the 70% and even fought their octagenarian father’s bid for an early trial. Why? Because a dead man tells no tales! And they will then have in aid of their tale, the presumption of advancement! [107] Providence made it possible for the Plaintiff to testify despite his legs being amputated in the course of trial, and the Plaintiff has given his version - that the transfers are not gifts. I believe him. Indeed, I have no S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 69 reason not to arising from corroborated and credible evidence of his witnesses. [108] It was very clear, to me that the Individual Defendants, by their stratagem of the so-called gifts were salting away and securing their own nest. [109] In the ultimate analysis, the evidence in support of the Individual Defendants that the transfers or allotment of shares are gifts to them was weak, both inherently unbelievable and inherently improbable given the circumstances of this case. I find the respective Individual Defendants’ account that the Plaintiff intended a gift to them of the shares is not credible. Considering the totality of the evidence before me, there is sufficient evidence leaning in favour of the Plaintiff’s case. [110] This means the presumption of advancement is rebutted and must be found against the Individual Defendants. The Plaintiff is entitled to all the shares registered in the Individual Defendants’ name on the basis of the pleaded trust. I make the findings that the Plaintiff contributed personally the entire acquisition of all the substantial assets associated with his empire, which began in around the 1970’s. He did not intend to give full beneficial ownership of his shares to the Individual Defendants. Despite intensive cross-examination for 19 days from his hospital bed by the individual Defendants’ counsel, the Plaintiff remained consistent throughout in his wishes and objectives, including a fair and equitable distribution of his assets to his nine children after his demise, non-division of his assets, preservation S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 70 of generational wealth and looking after the larger and extended Looh family including the Plaintiff’s siblings. [111] The entirety of the evidence in chief, the cross-examination and the re-examination, the transcripts of audio recordings of the 10 the December meeting, Phone Call and Bahau Meeting, the documentary evidence before the court, the conduct of the parties, assessed, weighed as a whole show to this court the Plaintiff’s consistent intention was always that family or third parties would hold shares for him on trust; and there is simply no good reason for the Individual Defendants to justify their entitlement to 70% of his assets. [112] The beneficial interest thus “resulted” back to the Plaintiff. The elements of imposing a constructive trust are also present such that to allow the Individual Defendants to retain the shares will be unconscionable. Whether on a resulting trust or constructive trust, the Plaintiff gets back his shares. Fraud whether equitable or common law fraud has also been proven. [113] In my considered view, on the material before the court, the Plaintiff’s counsel in their industry, had set out the facts and the relevant authorities in lucid details. I find myself to be in complete agreement with Plaintiff’s counsel’s analysis of the evidence and authorities, and am persuaded by the force of their arguments that on the facts, there was the Plaintiff’s intention to create a trust or to retain the beneficial interest in the shares of his companies. I have adopted parts of their submissions in this S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 71 judgment but find it unnecessary to deal with each and every point raised in all the submissions. Corporate Defendants [114] As for the Corporate Defendants, given the way the companies were restructured as manifested by evidence before the court, I agree with the Plaintiff’s counsel that the Corporate Defendants’ shareholdings are the result of the Individual Defendants’ “restructuring” of the Plaintiff’s assets and companies. The fate of the Corporate Defendants is inextricably linked to that of the Individual Defendants who are presently in control of the Corporate Defendants. The evidence show Sampson Looh to be clearly in the saddle, took responsibility for designing and executing the entire exercise to strip their father’s assets. Articles do not recognize Trust [115] The Individual Defendants and the Corporate Defendants also argue that the Articles of Association of the companies do not recognize a trust. I find this argument to be futile. The Articles do not vaporize the trust in favour of the Plaintiff. The Articles do not in any manner in my view affect the validity of the trust arrangement between the Plaintiff and the Individual Defendants which is of no concern to the Corporate Defendants. As between the Plaintiff and Individual Defendants, the trust can be enforced . Evaluation and assessment of the credibility of the witnesses S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 72 [116] As “evidence” is not confined to documents and the Court is enjoined by s. 3 of the Evidence Act to consider oral statements by witnesses, the evaluation and assessment of the credibility (or otherwise), of the witnesses were crucial to the present case. In assessing credibility of the witnesses, I have taken note that credibility of a witness embraces not only the concept of his truthfulness i.e. whether the evidence of the witness is to be believed but also the objective reliability of the witness i.e. his ability to observe or remember facts and events about which the witness is giving evidence and this court must pay attention to a number of factors which, inter alia, include the following as exposited by Gillen J in Sean Thornton (a minor by his mother and next friend) v Northern Ireland Housing Executive [2010] NIQB 4: (i) The inherent probability or improbability of representations of fact; (ii) The presence of independent evidence tending to corroborate or undermine any given statement of fact; (iii) The presence of contemporaneous records; (iv) The demeanour of witnesses e.g., does he equivocate in cross examination; (v) The frailty of the population at large in accurately recollecting and describing events in the distant past; (vi) Does the witness take refuge in wild speculation or uncorroborated allegations of fabrication; S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 73 (vii) Does the witness have a motive for misleading the court; and (viii) Weigh up one witness against another [117] Sir George Farwell in the Privy Council case of Bombay Cotton Manufacturing Company v Motilal Shivlal ILR 1915 39 Bom 386, PC, in addressing the credit of a witness upon cross-examination, said that ‘it is most relevant in a case where everything depends on the judge’s belief or disbelief in the witness’ story.’ [118] The tale spun by the Individual Defendants that they were given 70% of their father’s wealth is not believable to this Court and was blown to smithereens when tested under incisive cross-examination by both the Plaintiff’s counsel, Mr Gopal Sreenevasan and Mr. Robert Low. The importance of oral evidence through cross-examination is underscored by the following authorities: 118.1 Carmarthenshire County Council v Y [2017] 4 WLR 136 at [7] to [9]: 7 ….Oral evidence-in-chief now requires the permission of the judge be given. FPR r 22.11 provides the right to cross-examine a witness on his or her witness statement. Thus, the general rule is that facts in issue are to be proved by written evidence-in- chief and oral evidence given under cross-examination. Of course, facts may also be proved by hearsay evidence pursuant to the Civil Evidence Act 1998 and FPR rr 23.2–23.5, but the general rule is that oral evidence given under cross-examination is the gold standard. S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 74 8 Why is this? It is because it reflects the long-established common-law consensus that the best way of assessing the reliability of evidence is by confronting the witness. In Crawford v Washington (2004) 124 S Ct 1354, para 62 Scalia J, when discussing the explicit command to afford cross- examination of witnesses in criminal cases contained within the Sixth Amendment to the US Constitution, stated: “To be sure, the clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined. Cf 3 Blackstone, Commentaries, at 373 (‘This open examination of witnesses … is much more conducive to the clearing up of truth’); M Hale, History and Analysis of the Common Law of England 258 (1713) (adversarial testing ‘beats and bolts out the truth much better’).” 9 It should not be thought that this consensus or viewpoint is confined to criminal causes. Thus, in Goldberg v Kelly (1970) 397 US 254, a case about the entitlement to receive certain federal welfare benefits, Brennan J stated, at p 269: “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” 118.2 Berezovsky v Abramovich [2012] EWHC 2463 (Comm): S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 75 92. … However, it would not have been practical, given the length and complexity of the factual issues involved, for the court to have required evidence in chief to have been given orally. It was for that reason that cross-examination, in particular of Mr. Berezovsky and Mr. Abramovich, assumed such a critical importance. [119] In deciding the matter, I will make clear that I have preferred the evidence of the Plaintiff’s witnesses whom I viewed as ‘more credible’ in support of the Plaintiff’s contentions, as compared to the Defendants’ witnesses whom I found ‘evasive’ when troubling questions were put to them, and were not credible. The Defendants’ witnesses’ evidence simply do not add up. Even if there were discrepancies in the Plaintiff’s witnesses' evidence, if at all, were minor and not relevant, and on the whole, the Plaintiff’s witnesses were forthright, their evidence was comprehensive, compelling, convincing and consistent with the documents and the overall probabilities. As alluded earlier, some latitude is accorded the Plaintiff due to his advanced years, testifying from hospital, medical conditions and owing to having to cope with a translator. In the context of the entirety of the evidence before the court, any lingering doubts that I have, I would resolve in favour of the Plaintiff. Exemplary/aggravated damages [120] In Khaw Cheng Poon & Ors v Khaw Cheng Bok & Ors and another appeal [2005] 6 MLJ 540; [2005] 3 CLJ 753, Gopal Sri Ram JCA (as he then was) delivering the judgment of the Court of Appeal said: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 76 … Exemplary damages are only awarded in special circumstances. These circumstances are contained in the speech of Lord Devlin to which we have already referred, that no new categories are admissible to the Devlin list has now been settled in the decision of the House of Lords in Cassell & Co Ltd v Broome [1972] AC 1027. (Emphasis added.) [121] In Rookes v Barnard and others [1964] AC 1129, Lord Devlin stated unlike ordinary damages whose purpose is to compensate, that of exemplary damages is to punish and deter, and there are two categories of cases when it should be awarded, viz: (a) oppressive, arbitrary or unconstitutional action by the servants of Government; (b) the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff. [122] In Big Junkyard Sdn Bhd & Anor v Chan Kah Wai [2023] 1 CLJ 564 the court held: "[41] Thus, aggravated damages are given as additional compensation where there is injury to the feelings of the plaintiff that is caused by or exacerbated as a result of exceptional conduct of the defendant. The conduct must be high- handed or malicious act or an act done in an oppressive manner. Mere wrongful conduct is not sufficient. There must be something exceptional in the act that was done. The matter was lucidly stated by Lord Devlin in Rookes v Barnard [1964] AC 1129 at page 1232 as follows: S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 77 I doubt whether the facts disclosed in the summing up shows even a case for aggravated damages … present there seems to be no evidence that the Respondents were motivated by malevolence or spite against the appellant ... Again in so far as disclosed in the summing up there was no evidence of offensive conduct or of arrogance or insolence. (Emphasis added.) [42] ………there are two elements relevant to the availability of an award for aggravated damages: firstly, exceptional or contumelious conduct or motive on the part of the defendant in committing the wrong; secondly, intangible loss suffered as a result by the plaintiff, that is injury to feelings or personality. Based on the above principles, the facts of the case at hand does not make out a case for aggravated damages. There is nothing exceptional about the action of the second defendant. There is no evidence of offensive conduct or arrogance or insolence of motive or that the second defendant was motivated by malevolence or spite….." [123] In Rookes v Barnard supra, Lord Devlin also expressed the view that awards of exemplary damages should be moderate and that the resources of the parties was a relevant consideration. It follows from this that an award of RM10 million sought by the Plaintiff would wreak hardship on the Individual Defendants considering their means. I find that too modest a sum would make no impact on the Individual Defendants. I have taken into consideration also the conduct of the Individual Defendants right down to the time of judgment in opposing early trial as well as denying the Plaintiff who established the family business a right of inspection of companies records until the judicial hand of intervention was sought by the Plaintiff. As children and trustee, it is the Individual Defendants bounden duty to protect the interests of their aged and illiterate father and not let their own interests and self-vested agendas conflict with their duties to their father. They took advantage of their father’s trust in S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 78 them, of his ill- health, illiteracy and old age. In Plaintiff’s counsel’s words, “They must know that the Plaintiff would agree to put shares in their names when they asked, because to him the shares were all his. They knew that the Plaintiff would not trouble with a written trust deed, because this had been his practice, for decades, with his family members. They knew, and deliberately, with intent, abused their positions of trust.” There are exceptional circumstances here. The cumulative conduct of the Individual Defendants here justify the award of exemplary damages against them but not aggravated damages. The Plaintiff is a victim of the Individual Defendants’ greed and avarice. Shakespeare’s Act 4, Scene 3 in Hamlet aptly reflects the greed here: “With this, there grows In my most ill-composed affection such A stanchless avarice that, were I king, I should cut off the nobles for their lands, Desire his jewels and this other's house; And my more-having would be as a sauce To make me hunger more, that I should forge Quarrels unjust against the good and loyal, Destroying them for wealth.” [124] For the aforesaid reasons, I order that each Individual Defendant pay a sum of RM500,000 as exemplary damages to the Plaintiff. [125] Having heard the parties on the orders to be made and clarified on 22.11.2023, there will be judgment for the Plaintiff for the orders sought in the reamended SOC as clarified on 22.11.23; consequential orders, costs of RM1,100,000.00 (subject to allocator) to be paid jointly and/or severally by S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 79 the Individual Defendants in favour of the Plaintiff, Looh Keo @ Looh Lim Teng; Costs of RM75,000.00 (subject to allocatur) to be paid jointly and/or severally by the Individual Defendants in favour of the 12th Defendant, Privilege Vintage Sdn Bhd; Interest at 5% per annum on all monetary sums (including such sum as shall be found to be due upon the taking of accounts) and costs awarded from the date of the Judgment herein until the date of full realization. The costs ordered was justifiable on account of the criterias in Order 59 r 16 ROC 2012 - interalia, this is not a run of the mill case, the trial took 49 days. [126] It has been an enjoyable trial by all accounts. I am grateful to counsel for the respective parties and thank them profusely for the very substantial efforts expended in research and their written submissions which have greatly assisted the court in arriving at a decision. Dated: 22nd November 2023 - sgd - ………………………. Liza Chan Sow Keng Judge High Court of Malaya at Kuala Lumpur COUNSEL: For the Plaintiffs : Gopal Sreenevasan (together with him, Robert Low, Karen Yong, Michelle Chiew, Chong Lip Yi and Nanthaniel Low) Messrs Robert Low & Ooi S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 80 For the 1st – 5th & 13th Defendants : Lambert Rasa - Ratnam (together with him, Andrew Chiew, Chia Oh Sheng, Lim Jun Xian and Athena Chan) Messrs Lee Hishammuddin Allen & Gledhill For the 6th – 9th, 11th & 14th Defendants : Rishwant Singh Messrs Cecil Abraham & Partners For the 12th Defendant : Ramsun Ho Messrs See Ramsun & Tan CASES CITED: Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697; [2017] 5 CLJ 418 Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61 Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1 ESPL (M) Sdn Bhd v Radio & General Engineering Sdn Bhd [2005] 2 MLJ 422 Ikumi Terada v Jemix Co Ltd & Ors And Another Appeal [2019] 1 LNS 881 Pembinaan Lagenda Unggul Sdn Bhd v Geohan Sdn Bhd [2018] MLJU 196 Geh Cheng Hooi & Ors v Equipment Dynamics Sdn Bhd and other appeals [1991] 1 MLJ 293 Yeong Ah Chee @ Yan Hon Wah v Lee Chong Hai & Anor & 13 Other Appeals [1994] 2 MLJ 614 at pg 624; [1994] 3 CLJ 20 Fawziah Holdings Sdn Bhd v Metramac Corporation Sdn Bhd & another Appeal [2006] 1 CLJ 996 S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 81 Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 Goh Jui Leang v Tay Sing Hwa [2018] 1 LNS 828 Lin Ah Moy v Lee Cheng Hor & Anor [1970] 2 MLJ 99 Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67 Tay Choo Foo v Tengku Mohd Saad Tengku Mansur & Ors And Another Appeal 2009] 1 MLJ 289; [2009] 2 CLJ 363 Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751 Zung Zang Wood Products Sdn Bhd & Ors v Kwan Chee Hang Sdn Bhd & Ors [2012] 5 MLJ 319 Soon Peng Yam & Anor v Bank of Tokyo-Mitsubishi (Malaysia) Bhd [2004] 2 MLJ 31; [2004] 1 CLJ 532 Md Zainudin bin Raujan v Public Prosecutor [2013] 3 MLJ 773 CGU Insurance Berhad v Asean Security Paper Mills Sdn Bhd [2006] 3 MLJ 1; [2006] 2 CLJ 409 Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378; [1995] 3 All ER 97; [1995] 3 WLR 64 Ng Pak Cheong v Global Insurance Co Sdn Bhd [1995] 1 CLJ 223; [1995] 1 MLJ 60; [1994] 3 AMR 2663 Hart v O’Connor [1985] 1 AC 1000 Lai Fee v Wong Yu Vee [2023] 3 MLJ 503 Keng Soon Finance v MK Retnam Holdings Sdn Bhd & Anor [1989] 1 MLJ 457 S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 82 Carmarthenshire County Council v Y [2017] 4 WLR 136 Berezovsky v Abramovich [2012] EWHC 2463 (Comm) Khaw Cheng Poon & Ors v Khaw Cheng Bok & Ors and another appeal [2005] 6 MLJ 540; [2005] 3 CLJ 753 Rookes v Barnard and others [1964] AC 1129 Big Junkyard Sdn Bhd & Anor v Chan Kah Wai [2023] 1 CLJ 564 STATUTE/LEGISLATION REFERRED: Section 3, 114(d) of the Evidence Act 1950 Section 17 of the Contracts Act 1950 S/N J8VGBrt13EeXLEwfODzNVQ **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

AC-A53KJ-76-07/2021

PLAINTIF NORMAHAYU BINTI MAHAYUDDIN(mendakwa melalui suami dan wakil litigasinya) HASAN BIN ABU BAKAR (870120085299) DEFENDAN Rasif Bin Bah Sa'ad

Plaintif telah memfailkan notis rayuan bertarikh 10/11/2023 terhadap keputusan saya yang diberikan pada 8/11/2023 di mana mereka merayu terhadap liabiliti dan kuantum (Lamp 52).Manakalan Defendan memfailkan rayuan silang bertarikh 20/11/2023 di mana mereka merayu terhadap kuantum dan isu wakil litigasi (Lamp 57).Saya mendapati Plaintif gagal membuktikan kes terhadap Defendan atas imbangan kebarangkalian.Oleh itu, tuntutan Plaintif ditolak dengan kos.

24/11/2023

Tuan Gan Peng Kun

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=17dc1ae6-cd21-4341-87c7-ab999f637df5&Inline=true

24/11/2023 16:50:52 AC-A53KJ-76-07/2021 Kand. 61 S/N 5hrcFyHNQUOHx6uZn2N99Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 5hrcFyHNQUOHx6uZn2N99Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 5hrcFyHNQUOHx6uZn2N99Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 5hrcFyHNQUOHx6uZn2N99Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 5hrcFyHNQUOHx6uZn2N99Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 5hrcFyHNQUOHx6uZn2N99Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 5hrcFyHNQUOHx6uZn2N99Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 5hrcFyHNQUOHx6uZn2N99Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 5hrcFyHNQUOHx6uZn2N99Q **Note : Serial number will be used to verify the originality of this document via eFILING portal AC—A53KJ—76—D7/2021 Kand. 61 zam/zuu m DALAM MANKAMAN sssvsu nu rzwx mun mum NEGERI pssux nmm. nunzvm eumm mu: 1 1 a-52 Aunuu noun-nuvu awn wmuvunum lmcndakwl mnlam warm .1... wakll lmgulnyl . msm am ABU am»: am: am mm sA'An (A) (E) vuurmr om ...nsrsunm ALASAM psucmxnum pzuuzunuu Flamhllelah mem1aHkan nous vayuan herlankh mm 1T2D23|eVhznflap kepuluun says yang dmenkan pane an v2u2:s GI mm muexa merayu lemadnp hnbmu darn kuanmm um» 52» Manakman mama“ memfanknn rlyusn many mam. zulwzoza av mama meveka meliyu Iemndap kuanlum dan ISM wak-W ‘mow mmp 57) WAKIL LlTlGA§ Devfendan dmam muahan hefluhs Ialah memoanmxan xsu wakxl lmgam mm Flammm mane mm F\am\wl(SF7wd.nk mevVdavalPannlah Mahkamah Tlnfigw meng\kulA7Sk2(‘\) ma Mengm A 75 x 3(2) KKM‘ psrvvlah D:Van(IkanwakI\ hhgasu um: Mihkamxh hung! sdalah ndak pm A 75 x 3(2) KKM mempelurwkkan iepem henkul -[21 Excepl as nmvnded by paragraph 4:; M15) or by rule a, an older apparnnng . Wgnlrulv Iuplasemallve ova pevwn under dasnbmly .5 ml necesss/Y “ 5 Sewn Ilu dalam ke! W, pevwmjuin wakn Imglsl (Limp 24) an Pemkunn muam (Lamp 25) dwmlkan ma 14/12/2022,xedarvgKanwnLd:n vemyalann Iumulan amxan pad: 2:/mom Glen nu xevdapfl mmnan salami salu lahun 5 hulan s rmp. mangwkm kas Majid Jnkui v rm mum omura Dr: mun] 1 cu cu asalkan pelseluwnn waku hhgasw ad: flfluflkan‘ w1\aupun mrmm mm rm hnlen duenrna sen-Bgal mam: lehah memalum kaedah vane dnzmvkan 7 Mahkamah Ymggx memmuskan suaemman -u was mu sa/dby the m and 54:. dslendanls Mal 1». p;am:.nr...: «ma to ma m Fuml 194719 m cemncars mm by Ms solmtorzclmg mm nursun under mmmny, and In! lhal ransnrl mo mo surl had me" rmpmoéfly commenced and must be slluok out 1 da mi mm mt comglamr nmami wlrd bccauu In: yamm sollcllor an: m. m m. mm. in Farm «am Alma .1 m . timl mi: nggflcnlon was hoard mm hadbun ccmglinnci mm m M . u 0\eh mu sayn mervdapall ma vanu mbangkllkarv elem Delendan mak bevmem (B) I~£l|\.|fl 9 Pan. as/2021, um Vanm kuring e an pagu, kaduadua Plamm dz/I Delenaan bevgevak u. Tamk mm. dam amh yang mu m Mengwkulrmah P1 Flammdan Deiendan bevuerikflanalzskebawah 2 sw smrywqummznzmuu «ms smm ...m.mm be used m mm .. mm-y mm: dun-mm VII mum pm <1 12 12 u 15 15 17 P\amII1 menunggang mama: minnknm Dsluudan mamlndu kereta oevenann mzmpunym purmmpang dahm me‘. -emmak mnnngull Iebagm saksv flmam vemmavmn Mengxkul my Plmnlll, nevema» lzlah mehngglr museum mamw dnn Iselukang Versw vm hanya amxm aleh kereukzn van: kadu:-dunkemjeraan Gan nun masaxan paglwax peIIy\asal(SF1) Penhng dvben pemahan hahsvra P\aml<l iendm mu fllpinggfl mambenkan kaiuangan kuana kecnduaan yang dmammya P\3IrI|W ma {Leak membum sahiung lepal polls sehmggl parmmvaan human alas sebab yang um aeoan mambukh adalameflalak Itas Dam Phlnmumukmemhukhkan kesalas Ambangan ummngum Dawn m Mnhd Shabudin Abu Nluln v Mulmmmnd Snrwan Abu Baku um] I ms Au, Mahknmah Tmqgu memuluskan seaammn ‘Tm: my was Dmugnl Dy lhi ;=:.mmr...am Du/den rs on ma Pvawllflf In pmve ms clam, based on Ms balance oirllcbabmlvcs The mm." of Dmvs rails wun ms mum/r and live P/umM1v: Lo machsrqe us arms to pram rt: cnusa a« when mm: the Dsivmtarrt as mm by me Federal Com m the case cl Lslcnumanan Crwmar Alsganunn [As Exscumrlu $VAlams!oo Ash! m..~,.mdn A Ana! V Secum Pvanlalmn Sdn am 12017; 5 on us [2017] o ML./6B7 Based on Lelclvumanin Chemausupmj cuss, section an ofllva Evvdenue Ac! v95o was referred hommg lhal Illa away. to establish the case mm lhlmqnom on Ms party who assnns m. allmvallve 9/Ins rsius " Meugm versx Delendan‘ moiosnkal Flzmlvl G-Ilang flan auh belikang dam Iehnh melanggav hzhaglan mug" slhehh km mm mama Vem ml upam d:\am ream pm yang dmuat men Delsndan (D3) dan mmangx dahm penynla sum Delendan M45502; 3 sm snmrywquumxmznznmwn mm. smm ...m.mm .. LAIQ4 m mm .. mmmy mm: dun-mm VII mum pans! 15 19 2n 21 22 23 24 25 as Vem iadermkwan emu pdnk mg. m. mntnmkal Phmlll yang fliliflg dun xmh mam; Delundan um malanggiv bahaglan hadaparv Revel: Delemam Mam Inmhuflah mu tanlzng Vupak av man Deiendan uwepas musk dalam pemenksaan bangs meh peguim wamm Mengnknl DeVe«d:n‘ P\|m\f cube mungalak Vunak aw lalu leflanggal um; nemazn Mehhm kgpida kemsakan pida rmtcmkzl flan mm yang awamxan wen SP1 m sm man 5115 nun. wssm ma dalam Vaonran Dnspnknm my saw mendapah vets! Delendan m. mampurlyal mm K-bavanqkahan (mars pmbublej Im xemna sekwanw kevela Delendan mehluliavhanamanbelakana mmasuul Flamm sepem vem mamm, wdah |e«|u levdapnl kerusakzn an bahaglan belikang mnlnsxkm Tslzpl bahagwan belakang mn|u!Aki\ Vingslmg ndnk mengahrm kewsakan. seflangkan bahagwan rvadauan km kerela kemek am menganarm kemsilun. kemiakan Vim iecem dwsanarawkan dilam N can sus wssm Kemsakamkemsakan pada monosmax den mm was new am: «mm §ambavF1(d)*(P} Berkenaan Iovak an M3 mm uambar wzm lemav-31 saw Vwak am Iepl man Manum\5F1, karclzlebh dmhah kefludukan om nu kedudukzn kendsvaalv max memhanm uya dawn menervlukan WK penemhungan 4 sm smrywqummznzmuu mm. smm ...m.mm .. LAIQ4 w may he mm-y mm: dun-mm VII mum pm 27 2a 29 an 31 :2 33 mung dlban psmalwan bzhawa Vzklz mung mum am: lnalvgellk luvik mv Izaak dmyuakan dnlnm D3 mahuyun dlhm wssm am pemenksean mam: Delundan Mntah menghauanknn Derendan lxdak memasukkan v.-ma mamur cub: mengshk lupik an da\am ca iskvanya Viki: vm msl/umsnlal dalam mlnynhlbkln pllzngglvin dung-In nevmm Dan iarvgal msnghawankan |uga Vakia mu lmak mmuman dnmm wssm mahupnn Dsmanks-an mum: Defelvdnn 0\en Ilu. say: udak mensnma kalerangan Daianmn mam vemenksun mas um». Flammmba mangahk hulk an Walau spawn‘ wamm marsm malmkw baban mambukh swam y-lug xnyn huvawkan m um, um yang dlkzlengnhkan owe» pegunm P1amIn {flak konswshen dervgnn kemsnkan pnda mnlas-km Plamm flan kelsfiz Dslandan nae: apqrapa katnrungan um yang dvkemukakan unluk menyoknng vets! Pmmmnm Manakzl: katirlngnn sm yang Isanyak mszmaman nlah pequam vvam damn: mam" mereua untuk menyokung vam wumm aflilah dengavcakap flan bersxlal pervdapal semazmmn mum kes Lin: J». Naur v Mrlwlu rnomu rn ip 4. Anor[2n19] 1 ms 1:51). M-ahkamah memuluskan sedelmklan mg mun shamd not allam any wstgvvt m the ovmorvcs olarv to mat a yarhvular party has haerv nsglrgnnl DI not (or wards in ma! «Nam because 41; wmvmar a pm rs hams /or negligence oromsrwrss rs m be deemed by AM cmm, sm snmrywquumxmznznmwn mm. smm ...m.mm .. LAIQ4 m mm .. mmmy mm: dun-mm VII mum pans! (21 an ID has no peI:v1na( knawmdgo mgardmg ma amdervz The /o-s knowioogs a/the accident rs dmvsd saloly mm. m. result: ulme Io’: lnveshgubon m alher ward: the /on ewdence n9gaA1mg who u mum: 9: non mrvsmutss htarsay ewdurlcs I my on m. fol/owmg mgmenr of any Hook me Ag c4 (wan; zsmmg .; . Hrgh Caurl Judge) in mm»: Pmsecutov v Stew SunH!1i65] 1 ms Ma, (15651 1 MLJ 145, 5: us, .!:/ol1aws- "TheIrv5PGcIw‘xsv»denceAham».1endurnesledmm tube/revellval the accused was avmevolme mamm was rvglmy slmck am as nsarssv. upon omcuan rnfsad by as/mm mmw Vomflhams mom. and 4:» an /0's zvrdwcs ruglrflvng mm It M9/rgmv ararnemm, rs purely ms or Her opmlan The mun cannot swap! oumlarv evident: unlau mm :5 5 rsiwvdrvt Issue am,» the mm mm /5 beyond his cum mmperence wharem me now! may ampr in uxperl apwmm um : 45(1) EA Secllan 45(1) EA nmvmas as /anew: - ‘Damion: ulsxperu 4541/ When Ins soul! has to lam an aommn upon a pm!!! or rmgn law orafsctenczorarl, urn: mmuntrlymgnnumnnfissof handw/Ilmg m Myer mwassrons, Ins apamm won Ihsl uumt M perwrvs specuw may m mat (warm r-w. mm or in. mm queslrons as to mentrly or yenulnenexs W hsrmwmmg or finger rmpussrons, are rs/oven! fiets ‘ 35 Dalnm kendaan sedewmkmn say» menaagnu rum gagax memhuklwkan m lemadav Delendan am wmbanwzn kehamnfikalmn as Olemm Iunlumn Flmnhfdwlalikdeagankm (C) LMETLJ 5 sm 5«rcFyHNquuMxu«znzNmm mm. smm ...m.mm .. LAIQ4 w may he mm-y mm: dun-mm VII mum pm 37 Pnnsnp undang-umlng bemubung mm" ganu mgladalah maniac Dawn kn Ngnul KI: smug s Anni v AldIAbdalI1n mu] 2 cu in, Mahknmah Pelsekumnn memnluskin ;a¢.mm.n ‘Galvan! damngo: n,-law me damlge mm ms raw Wmplvss m wmnys achonable per 59 - and .5 mm: m gorwval [arms m ma pleading: mmomm. nmmy avqusnmymg m. anlmmt Thuy mum imam has al enrmngs as wen .; damages Ior mm and suflonng and /or: or amemue: my Is/ale lo Hams oldamuga wlvumar puvnllly or mm pucumary Spam! dnmagns on m. ollrlrhnnd mm m be spocrfma/(y p/saved and slrvclly pm»/ed may mm m Desi expenses and ms 0! aarmngs The em: has muslbs pmadod mm m. placvsn amaunl oi /lam has become cloarbslora me Ins! Lon Dflulms uammg: arpast. mu am am: lrnm m.m'.,« /on whnch comes under :uscra( damagvs The reason my snacml damages new m at speafically pleaded rs m order In cumply wvm us abject mm. .5 m nrystamze the mug and In nu! lho daiendunls an llreirguam and mi! mam wmsuhar have to "me! man the case comei on me! (See Dumsalla v EaIr11959] wu: un, Pmfhps v Pmmps (1575: can my, my and Ong Ah Long V Dr s Undsmuad /1953; cu (Rep) am- as Sekzpas mernbaca dan manaml upmn pevuhman um Inpalan pm. Plamm (P5. vs, P14, me, pm dnn layman pakar Dulandan 107 um um) sens Revvsed Cnmpenamm or Persona! Vnjury Award) zms. uyi herpundapal germ mgv am m.ar¢-namm xavem benkul 1:) Ymumnmc Dram mnury » RM50 000 Lb) Deep Vacerahon wmmd — me can (C) Degmvlng umury ngm mu pad _ RM15 mu m) mgm aw —7|nb «acme — RM22,(ll)0 1 sm snmrywquumxmznznmwn mm. smm ...m.mm .. LAIQ4 m mm .. mmmy mm: dnuumnl VII mum pom! my Mumyll scan — Rma can to Muscles mum . mama my nmcanon no ammmwawcuuano-nx — nmzomo as Garm rum xnasauausmn seven: mum 13} Kemsnkin pnkamn -Ixdak nmkhkan on Pavnalanjaln kamalga me\:waAF\aInl1ld\hown1\ » dakdvbukukzn (cw F'erhe\amaan F'\amM unmk vavalzn an hasantal — mmuu Kmpavsaluw (en Fevbelanjaan ma-um unluk nwaxan mam \uav— mak dlbuhmkan (ab Pemelamann Delxamnnn un|uk vawanm pesakvl M31 . um amxnm (0 K05 psmbodihsn .1. vmlrnlnl -udak acuxmn (5) xx perubedahan pada Maia akin dmang -max dwbubmkan my Kos mngkallkerusw rod: —mak dlbuknkan up Kn: pembehin wmp|nnl— Iwdakdwhuknkan uh Kns makanan Dena? »(u1ak dwbukmun no Km mambmkn mnmsxkal — xmzm muuk F201 (17 Kus ‘nuvsma cave'»1xdak mhenarkzn 3 sm 5«rcFyHNquuMxu«znzNmm mm. smm ...m.mm .. LAIQ4 w may he mm-y mm: dun-mm VII mum pm V Lapmu. pakav P\amM we» dam Vawvan Dakar cam... um menyalakan P\n|nM.ndi\|h Indlpelnianflnr hevdawhvung acnvmes‘ Am) Kas amhulans — mm an «mm 791 0.; Kemmngin penflapatan — max dwhukllkan (0) Perbalarqaan\ap9IirvDuI\s‘.APJ Devuba(an,Dikar—RM1‘S75 rm an hosnuax Columbus Asxa — RM2D5 an «.5 (mm mm Faedah V 2 5°/. Iemhun nus gm mg! km: din um !.ema\angan sehmgga mm penghakwman 5-=r. wanna alas aw rug! am flan lankh myuanan saman sshmgga tankh neru_:n.xm.. . 5% selamm alas|um\a7| Deflghakmnan den tankrvvenghakxman semngga lankn Denyebiawan Dsnulv Kas menalkm ska\a >4 mm mm MANKAIIIAH szsvzu sum sum mun 22 Novwask 2-:2: reg-.....:m Plamm Duo‘ Aminll. naw Man] 4 Icluin Danhan‘ sy-d, Amnrm s Pnrlmn Fluulmclrl nmnnan Ramk: Devi mm Amuhi Andnw 5 Cu sm 5«rcFyHNquuMxu«znzNmm mm. smm ...m.mm .. LAIQ4 w may he mm-y mm: dun-mm VII mum pm

Tika 2.6.0 & Pytesseract-0.3.10

WA-25-403-12/2021

PEMOHON SUNWAY GRAND SDN BHD RESPONDEN MENTERI KEWANGAN MALAYSIA

ADMINISTRATIVE LAW: Remedies – judicial review – application for leave – Minister of Finance – did not make decision on request by letter to set aside or exempt tax – Sections 135 and 127(3A) of the Income Tax Act 1967 – circumstances where no response amounts to ‘a refusal to make a decision’ – whether such decision susceptible to judicial review ADMINISTRATIVE LAW: Remedies – judicial review – letter to Minister of Finance – no response – order in the nature of mandamus – discretionary power – whether mandamus can be issued

24/11/2023

YA Dato' Amarjeet Singh a/l Serjit Singh

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24/11/2023 12:08:45 WA-25-403-12/2021 Kand. 59 S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N uX6N8JfHvE6DhSU9A9HhFQ **Note : Serial number will be used to verify the originality of this document via eFILING portal w.\—25—ao3—12/2n21 Kand. 59 2»:/11,2122: 12:02-as DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAN NEGER1 WVLAVAH PERSEKUTUAN KUALA LUMPUR (BAHAGIAN KUASA—KUASA KHAS) PERMOHONAN SEMAKAN KEHAKIMAN WA-25-403-12/2021 Dllam nerkara suaiu permohnnan yang 1aIan dihual kspada Responder: menunn Seksyen 135 dan Seksyen 135 dan Seksyan 1271aA) Ana Cukai Penaapacan 1957 yang benankh 13.12.2021 den kepulusan Rpcnden yang a. anggap an buak pada I7 12 2021. Dan Dalam perkara sualu permohonan unluk snlava 1am, suam Perinlah Cemurari: Dan Da1am perkara Aluran 53 Kaaamkaadah Mnhknmah 2012 Amam Sunway G1-and sun and Pemnhun Dan Msnleri Kewangan Ma1ay:.1a Respunden am uxnNwHvEwrsunAwnFu nine s.n.1...1a.m111... .1... w my 1... WW1-y mm: dnuumnl Vfl .mm M1 JUDGMENT lmrodunlon [1] On 25.6 2023, \ dwsrmssed (ho applvcauon for Weave Io wmmenoe wdxcial renew pmoeedmg bmugm by the apphcanl‘ Sunway Grand Sdn em agamsl me Mmisler far Finance (‘the Mm\s|ar'j (or the kmowmg pnnmpal 1eI|e4s (as slated rn endosure 1): (i) an order lha| lhe Minister exemse ms powers under secmn 135 and/or secuon 1Z7(3A)a1|IIe mcome Tax An 1967 (“lTA“) co set asme or exemp| ms lax m |ha nouces av aaamonal assessmem for In: Year 0! Assessmem HM‘) 2015, VA 2015 and VA 21111 and nolificalron cl non~4:hargeabHily lav me VA 2013 and VA 2019 all daled dalsd 1422021 (“me Vmpugned assessmenls“) made by the D\rec(or—Gener3> av Inland Revenue ('DGIR") on account ov me same bmng unagat ma. unlawful and/or rn excess of aulhamy, Vrrauonal, m uxnNumvEwrsunAwnFn «mm. smm ...m.mm .. U... w my me nrW\nnU|Y mm: dnuumnl Vfl mum Wm! (cl The Mlnlslefs declsion was made wlmoul havlrlg any regard lo lhe |sgl|lma|e expeclalmrls of ma epplrcanl as me Mlnlsler lalled lu consider the declslcns 0! me supenor calms In relabon |o lhe inlerprelalion and conslrucllnn cl leglslallen and which alsregara conslllulas a aarual ol me legllimale expeclzlmn a! the applrcanl me Ion lo bu nppllaa er leave Ilngl [31 ms brlrlgs me we the duly of me rudge heanng an aDphca|IOH Var leave To ablaln leave 0! court to commence ludlolal revlew me estabhshed (est ls aptly descrlbed by me Federal calm m was A: Pacific sdn alul v. T: In: uulanal and [2u1214 cu 475 m |he lollawrng words: wlmeul me need (0 go lnlo aepll. at me abundant aulhcrilles, sulfice ll we state mar leave may be gramed ll me leave appllcallon ls not thought cl as lrlvalaus. and ll leave ls granlsd. an arguable case m Va»/our ol granllng ms rellsl soughl al the subslarlllve hearlng may be me resullam uuwome. A rider musl be attached to me appllcalian lhougn le. unless lne mallar n m uxnNwHvEwrsulzAs'mnFn “Nana Sum! mrvlhnrwm be UIQG M my r... nflmruflly ml. dnuuvlml Vfl eFluNa Wm! (or ludlclal revlew ls amenable la ludlual review almlulely nu sucoess may be snvluged [91 The lesl m WRP Asia Paclflc Sdn Ehd envlsages three calegorlas where leave 01 courl will be relused. The flrsl ls where me appllcalicn IS «mm In be vmolous and vexallous‘. In Tang Kwnr Him s. 015 v. Pnngumnn Danaharla Nzsional Bhd !- Or! [2005] 5 MLJ SD and Tail Gull Hung V. Pcrbadanan Yabuvlg Pnndldllun nnggi Nasiorlal [2015] 3 AMR 35 lhe com of Appeal set om the es|ab|lshsd Invalous and vexahous slhlallons, namely, where Ihe appIlca|lan: Ii] IS made by a busybady_ an IS misguided or misconcslvad or are lrlvlal mmplamls ol adminlslvallve amars: (ml IS made uutsme the prescrlbea tlme; (iv) ls made agalnsl a person or body thal is immlmlzsd (mm bemg lmplaaded lrl legal pruoeedlngs, and (V) where there ls an allemallve remedy or more avproprlale remedy‘ 11 m uxnNwHvEnursunAwnFn “Nair ml ...m.mm .. U... M my me mm-y mm: dnuuvlnnl Vfl .mm Wm! [ml The second arises when me applicauen is noi lourlu lo be «nucleus and vexanous. leave will be nevermelcss be relused where an arguable use larlunherInves1lgallcn at me subslannve stage is riei made cut. The threshold for this mualmn is very low. All Ihal V5 requrrea at rrus svage ls ler me ludge to peruse the malaria: placed by me applrcarrl pelere me court l'| being an ex parts application. |a see whether ‘an arguable case VI lavour cl granting (ha relrel seugrii ai xne subslanuve hearing may be the resultant outcome‘. Leave 01 court will be granied unless “absalulely no success may be envisaged" [11] The third is wnere me mallerlor review s npi amenable In lemcial review in lms srluailon lnciude mailers |hal are nun- luslidable, policy considerations and management prerogalrve. In lrus regarv me Federal court in Dr Mlerml Jnyakumar luv :1 v. P-gu-m up up Malnysll [ma] 2 CLJ 1009 said- [24] On lhe isi question, we are oi me Vifiw that me decision or exercise cl discretion snughl in be reviewed under Judicial review based on policy corlssdemllon or marragemerri praregalrve may be u m uxnNulHvEwrsulzAwnFn “Nair Sum! mmhnrwlu .. H... In may i... nflmnnllly mm: dnuuvlml Vfl .mrc Wm! uexenmned at me leave stage «saw. u vs not a mqwemenl that «ha ouurl must only came on the Issue aher neanng aH the evidence at the subsvanuve mnlicn for judncxal revxew [25] As It: me 2nd quesmn, me Justiaahmly M such daemon vs dependent on me namcular van: 0! the case on ma lacls cl Hus case‘ we agree wnn me Own afAppea! that me wssues rawsed m me name of motion lor Veave ware not ‘udlczavy reviewable and henna not juslwfilble. Applying me (an [12] The Ammey Genera! raised me louowmg mailers as to my leave ought not to be granted (n ma Munster did not make any deusxon wmcn Vs sumac! |o Nd review; (u) me apphcaucn under secnuns 135 and 127(3A) 0! ma ma |o me Mwsler is lnvoleus and vexahaus; and (In) the vehel prayed V0! .5 m essence an order 01 mandamus the Ingredients of wmch are absent. After oonsmenng me arguments rased m me m uxnNumvEwrsunAs'mnFu «mm. smm ...m.mm .. U... m may he mmuny -mm: dnuumnl Vfl mum Wm! S|JbmlSSIOnS, it is my considered view lnal me appllcahon var leave I3 Indeed Vrlvoluus and vexaiioua. [131 Fnsl and foremost ll I5 innpcrunl lo keep in mind lnai ine Minisier in inc irlslunl case did nal exercise his powers or made any decision under Sections «as audio! 127(CIA| all me ITA as requested by me applicanl m is lellsr dalad I3.12.1|‘l21. In me said lellen whlch was addressed |a lne Minialar, lna appllcanl gave lis reasons wny lne aecision ol ine DGIR was wrong and concluded as (allows I4. As me DGIR has mlsapplled me law we humbly request the MOF lo d/MCI the D61}? to IEVVEW may exstclse or power and lunctrons so that me law Is applied correctly and Iamy :5. ln lunneiance In ma raquesi for inc MOF lo glve the DGIR dlmclmns ul a general cnaacier, we also wish to seek lna MOF's approval lo grani lax exemption lo 5655 In respen 0! me addluonal ux payable and penally arising «min ma issue above /n view that the D6»? has acted ammanly and 15 m uxnNulHvEnursunAwnFu “Nair Sam! nuvlhnrwm be UIQG a may i... nflfllruflly mm: dnuuvlml Vfl .nuna Wm! un/aw/ufly, we humbly requesr me MOF 10 gram lax exemption under sactran 127(.‘!A) lo sesa. I6. Funher, as (he mom has Issued me assessrhems rh «ms regam, we humbly raquest your good woe to gwe me necessary mreamns to the DGIR aha/or gram the tax sxemphon urgerrrly by 1712 2021, llwe do nor receive a rep\y «mm your good orifice wuhrh a week from me reeerpr of this wener we will assume ms: your good one /s not consrdsrfng our raquas! far a drracrion and/or lax sxempzrorr and we reserve an our legal nghls acwrdmgw [14] secohaxy. me apphcanl sougru declarahnns seekmg lo declare Ine rmpugners assessments made by the DGIR nuns and word The crucxal point rs that Ihe Minister did nan make the mlpugned assessmenrs. The grounds arrsmw were an aH—oul assault on the aecrsmn onhe DGIR Therevore, me DGKR wauld be lhe proper pany agamsl whom (ha reliefs or dslflaranon are suughl. Apan Mam mar me body specrfimlly conferred power (A: delermme whether me impugned assessme-ms were correctly made was the Special cemmrssroners of Income Tax ("scum :5 m uxnNwHvEwrsunAs'mnFn “Nana smm mmhnrwm .. U... m may r... m1mn.uIy mm: dnuumnl Vfl mum v-max by way of an appeai against the dedsion oi |he DGIR Further, the decliramns cannoi ca mnda againsl the Minisiar nu ma reasons given below [15] since the Minisiar and mu make any decision‘ the Issue oi iaiiing In give any reason does not arise and such a mrnpiaini is claariy ‘lnvnlous and vexancus' and an abuse av (ha gram: 0! the noun No success an be envisaged on ims grouna. Rslisfsaaking mar |hul M/nuts! exbrcises powar [15] I win new address me msi issue that the principui order was In me nature 0! mandamus and that "1: ingredients oi mandamus are not eslabhshed on the racis, which iacis even ii were lo be assumed true, would mi in iaw entitle |ha applinl lo reliel. The aaening words M me principal order are ‘an order for me Rsspandani (Mlmifed to exercise his power‘ The power ietenaa lo aie housed in ssmians 135 Ind 127(.'iA) onne WA The words are aampeiiing Wolds ana directed to (he Mimsler In exemse ins pnwer In the manner dictaled by me apphcanl. The miiei sought. as in is worded, IS In pun and suhslanoe an may 1: m uxnNmmvEnDrs\.mAwnFn «mu. s.n.i luvihnrwm .. met! a may he nflmruflly -mm: dnuamnl VI .nuua Wm! lrl lne nature cl mandamus. ll ls oenalnly not the words lor oblalning an oroer lor eerfrorari. ms was ramgnlzad by lne appllcanl, as ll subsequently submitted ln the applicant‘: wrillerl sllornlssld rebl‘/. [171 ll ls lnla mal an order ol cemorari is to -zllasn the legal eflecl of a declslnrl and lnls ls nol lnade olll by me words empluyad in me onnclpel nlllel edllgrn Wha| ls prayed vol IS (a exeruse a pmllel. I have oorlsidereo lne Submissions and agree wlln Federal counsel who appeareo lor ma Annmey General ln.-ll wnel ll. soughl IS an order ln the nelllre ol rrrarrdarrllls wlllcn oannol ln law be grarned on me lace ol wnal nad oeen pleaded by me appllcarll. As such were is no arguable case [or me prmclpal nrder soughl ll) be lnvesllgalea at me Subilanllve slage [II] The reason are order cannol be glallled law ls because rnandalnlls does nol lle In perlunn a discrelionary gamer and only lles where |he aoplloanl has a legal ngh| In oornpal me paflormance at a duly provlded ln a slalllla The use of me word ‘may‘ ln lloln the secmns relled by me apvllcanl conler discrelronary power and no: a duly on me I! rn uxnNNMvEnD/SUEAWMFG “Nair Smnl mmhnrwlll be UIQG a may l... nflfllrullly ml. dnuuvlml vn nFluNfl vtmxl MlrIIs|er For ease cl relerenee the secllons are reproduced below seeuon 135 ol the ITA stale: The Mlnister may gwe tn me Direclnr General dtradluns 0! a ganarel charac1ev(nnl lrlcnrlslslen| wI|h tms Act) as to me exevctse ol the funcllans oi the Dlrector General under (hls Ant, and me utrecwr General shall glve enact |o any dlrectmns se glven whlle se:llon127(3A)cHrle lTA state- The Mmtster may, VI any pameular case exempt any person from all or any of lhe pn-M VI ol tms Act. allhar generally or ln respect at any Income at a pamcular klrld at any class of rncurrte cl a parllcular klnd. [Is] There ls a plethora el auttmnties on the palm and ll l5 sumclenl |u clle the lollorrvtng lnslrucllve extract lrem MP Jain, Admmistmliva Law oi Ma/ays/a and slrtgepore. All Edluon, at 615 (see Conn ol Appeal declslons cl Menleri sesar Nngari Pnhnng narul mkmur v suruuru Gontll-ng Mnkmur Sdn is r~ uxnNwHvEwrsunAwnFa “Nair amt nuvlhnrwm e. n... M my t... mtnu-y mm: dnuuvlml Vfl nFluNa vtmxl End [2010] 5 CLJ 123 and land Karim Abas & or: v Krtun Punulrlh Jubuun M-I Ehwnl Kuululn sokuran whom me same exvacl lrom earheredmon dune book were appnea): Mandamus .a mus a very wne remedy which Is avauama agamsl a pubhz; omcev to see that a duty 15 pefluvmed or named out w acmrdance wmh law. Enlnlceume by mandamus us a duly cl a puhhl: nature. ma peflormance of whim unperauva and not opuonal or duscrelmnary rnus, flan officsr has power. rams! man a duty, and does not use web pcwer, mandamus is not rssued if me olficel refuses to sxsrcrss ma power for the wrong reasons [201 The decxsxon m Karpal an Ram Singh v Kotua Haklm mgau 2011] 4 CLJ 179 Is rulevanl. There. an mdarov mandamus was sought duechng ma Cmel Jusuoe to respond to the apphcanrs requesl under Seciion 13 0! me Judges‘ Code of Ethics 2009 in act in the manner dmaled by me apphcanl It was mm that mere must be wide! the law some duty cas| upon me pubhc ofiicer before an order of mandamus can be made I! the puhlnc offioar does not carry ou\ ms duly, ma eaun wfll caH zn m uxnNuMvEnursunAwnFn «mm. saw nmhnrwm .. d... w my a. nflmnnflly am. dnuumnl Vfl mum Wm! andlor unreasonable and whxch resuned In a denial ov me apphcanfs legmmala axpectannn‘ (u) s aeclamnon that the uonmbuuan M RM6J5o.unn 00 made by me apprraam re ms Penang State Govemmenl m relamon «u the wnslruclmn or km-cos\ resrdenual unns (“raw east oancribunorr) rs daducnbla urmer Section 3311) 01 me Im. (In) a dedaralxan |ha| me Iuwcusl oonnnbunon Is daaucmble under Section 4:415) at me ITA, [2] My reasons lov dwsrmssma the spokesman are as fulluws. ‘nu background (acts [:1 The facts are as averred In we affidawl venfyung «acts filed In support anne appncauon for weave II rs scared mar me prirrapal aclrvlly of me apphcanl rs propany davempmenl and slate governments rs convened me power to delermme the number of low-cost houses that can he bum by Droneny developers Tho Panang srara Government reqmms me 2 m uxnNwHvEnursunAwnFn “Nana sum mmhnrwm .. med w my r... nrW\n|U|:I mm: dnuumnl Vfl mum v-max upon him to oettorm that duty by an order of mandamus. The oourt tound that saclton ta. (mm the language used, dtd hm tmpuse a duty on the chtetsusttce to act tn a manner dtctated by the appticant The prtrtctpte was tuctdty stated as tottows: what can be entdreed through mandamus ts a duty ot a ptthltc nature. the oertonrtanee dtwhtch ta trnperatwe and not epttonat er diactettonsry wtrh the consented authority Thus, tt an affioer has power. rather than a duty, and rt he does not use hrs power, mandamus ts not issued to compel htrn to exerctse hts at-mer. whether there ts an arguable case 10: an order ofcsmarari [21] As stated above, the apptxanr subsequently tn tts written subtnrsstan—tn—repty submitted that the order sought sgatnst the Mtntster was an order ol cenrorart and not an order at mandamus. Thts subrhtssrort cannot be correct as shown above, The eppttcant was seektng the rettet as tt ts tretrted because the Mtntster dtd nn| respond to the appttcents tsrter dated 13 12 2021 requesttng httn tn exercise hts powers under sectton 135 at the ITA and/er seetton 127(3A) ol the ITA. I had zx IN uxnNLt!HvEnDr£uflAwltFQ «war. Smut mmhhrwm be u... In may t... utttutttt Mthtn dnuuvtml Vfl .nuua vtmxt exwalned above why me mine: as prayed by me applrcam cannot be granted. The law is "us An order o4 csrliorari re (0 quash a -demon‘ or ‘amen’ of a pubhc body oraumcrivy wmle an order of mandamus rs a command rssuea m a pumrc may or amhunty |o pervarrn a pm: my mandalad bylaw wmch n had L-med or ommed In do [22] Nalwnmshandmg thal camaran was nu| prayed as a relief, | Druoeeaed m consider the cause papers to de|ermme whemer csmaran could be sought on me grounds or revrew and (ads lha| were pleaded by the apphcanl. The applicant had amculaled the pawl m 105 applicanfs wrmen submlsswan-|n»rep\y as «allows: us. In Ah/i-Ahlr‘ SL/ruhsmaya (supra) lhe Federal Cour! adopted Ihe deuslcn rn Council of CM] Sfirwce Umuns (supra) lha| a rzflusal by (ha deuston mixer to make a decwsxon can a\so amount to a decision susoeplwme ID |ud\ua\ review \n the Vending zuagrneru Dy Raus snerrv FCJ, |he calm held lha|: [251 u .5 (me raw that the purpose 01 an order vor canimari is In quash the Vega! aflecl cl a 11 m uxnNwHvEnursunAs«nFu “Nana smm mmhnrwm be H... e may r... mm-y -mm: dnuumnl Vfl mum WM deuslon. Vn England‘ .n we case 0! Connor! 0/ can: service llmbrvs V Mmmel for cum Se/was [1954] 3 All ER gas lhe House 0! Lords held that lot a decision to be susceplm/9 to the caurfs rm/iawmg powers. lhsvs must firs! be a decrsmn by a risasmn maker or a refuse/by mm m make a decision‘ and, mu: decwsion mus| aflad the aggrieved pafly by enner allenng nis nghm or uons or depriving mm of me benefits which he has been permmaa In emoy. [27] We adopt the same Maw 21. Based on the dedsmn of our Federa\ coun In Ann- Ah/I Suruhanjaya (supray lhe Anaheim suhmns man a decxswon amenable Ia wdlaal review can Incmde a purponea rmrmemslan sud: as man in |he present mailer, so Vang as Ina aecnnon affeds me aggneued parly menu by akermg ms rights or obhgaucns or by deprwing mm of me benems wmcn he has been permmed to away 1; m uxnNmmvEnursunAwnFn «mm. smm lunhnrwm .. U... m may n. mn.u-y -mm: dnuamnl VI mum Wm! 22. in in. presenl nieller, ma applicani nas expressly slated in ils ielier dated 21 a7 2021 lnal me iailure by me Respondenl to respond lo lne lelten will be heated as u rajacllorl by me Responaenl oi me Applioanrs appeal arm that me Appllwm snail pluoeed Io oorninence the necessary legal pmceedings on lnis premise 35. AI llie oulsel, lne Applicanl wisnes lo hignlignl that me Apphcam nail prayed lor an onser oi cenlorarl instead of an order or mandamus. Tne A605 oonlenlion mat the prayer snugm hylhe App cam is in alien a mandamus is wllnoul merit. 41. This applicalion is made consequent lo llie Responder-iI‘s lailure lo exevclse aiacreiion under seclions 135 and l27i3A) This is an unlawml acl by me Respondenl wnion iris Applicant had sougnl In challenge oeloie lnis Horlourabla coin and also seek an Older ol oeniorarrlo quasn lnis unlawful acl. 2. rn uxnNmmvEwrsuvAwviFn “Nair s.n.i luvlhnrwm be UIQG a may i... nflfllruflly mi. m.i.n VI .nuna Wm! [23] Yhe apullcanl ls lneretore relying on the second lyde of deusron sleled in Council M CMI Survlco Union: v ullrrlmr (or CMI smlce [1954] 3 All ER 935 Le mere ls a “relusal lo make a decisl0n'. Thls ls clear as in Councll ol CM! Service Umons me daemons susoepllble R) an uraer al cefllola/l are one 0! Mn rypes. rype one is where lne declsrormraker has made a nee-slorr and me two rs where there ls e declslon reluslng Io make a deolslon ll is also clear mar e retueel Io make a deersren ls dlfierenl 1mm e deuslon relectlng me requests mar were made under seelme 135 and/ar127(3A)ol lhe ITA [24] The Mlnlsler dld nal make a declslun relusind la make a daclslon on me sald requesls ll lollows mar mere ls no declslorl suseepllble Io csrtlovan In dorrwrg In lnls eonduslon, I had to firs! decide whether l could oonslder Ihe rellef of cenicwarl when me rellef was not expressly pleaded and men deude wnemer there was a ‘relusal to make a declsmn‘ that was suseeplrble to me remedy ol cemoran [25] In deordrng me firs: quesllon. 4 kept ln mlnd the eslahllshed prlrrclple that a judge neenng an appllcallon hr 25 m uxnNmmvEnursuvAwnFn «war. Sum! navlhnrwm rs. UIQG k may r... mm-r mm: mm. VI nFluNfl Wm! reave under Order 53 0f me mes of Court 2012 has (0 adopt a iiaxibie approach when delarmming iecrirusai obiactions (see Tang Kwor Ham 5. Ors v Pangurusnn mnaham Nneienai and 5 Or: [206] | cm 927 and Mzlzysian Trad. Union Caviar": 8 On V Mlntlrl You-ya, Mr Dun Komunlkul & Ann! (201412 cu 525;. Adupnng this approach, i found mai grounds had been pleaded In me Order 53 statement [see paragraphiib seeking to quash a purponed decision of INS Minister on iiiagamy and iraziona/iry inmcaung inai the relief oi carfroran was in ooniempialion riotwilhsmndmg that the Valle! was nol expressly stated or prayed «or. [26] The grounds lo quasn the purponed decision oi |he Minisiar have aireaay been aiiuaea Io In paragraph [7] above. since there are grounds mused «or such remedy, I am oi the VVBW inai Ihe appiicani IS enirued lo ouniena that it nas pm iorwam a case «or me rwel ei cemolan Thus, it me applicants are abie to esianiish an arguable case, this Com is than in a pasicion Io make an order that necessary amandmems be made |o me cause paper: to reiieci me oorrect ieiiei sought. :5 r~ uxnNwHvEwrsunAwnFn “Nana s.n.i mmhnrwm a. U... w my r... nrwiruflly mm. dnuuviml Vfl .mm Wm! m] Now‘ lhe grounds snaned nu ma Order 53 slalemenl aneged Mal me Mimscer ma aeamea or purparlsd In have made a aeusuon (as opposed In a refusal In make a aecismn) on me request onhe apphcanl. It \s auegea than (he purported dsmsmn us nddled wnn errors and Much decision ws name to be quashed on grounds 0! il/egalily and mahona/rly Harem the fatal flaw in the applicant‘: case us exposed [za] The moommvemhre fac| show that the Imsler did not make any decision and did noi repvy In the appncanrs newer There is lherafom no nexus between me around: rawsed m me Order 53 soaxemem and me reliev ov cermwarr, gwen me fad mm me Mlnlsler as declslommaker am not make a aemsm u was a pure onussxon In reply me lenev where we vequesls were made, The gmunds me apphnl raised m me Order 53 statement seeks to quash a ficlmcus decismn or aclvon oi remsmg to make a session As such, no arguame case our invesmgauon a| me suhsxanuve stage Is made but am me apphcalinn us one which is in essenee lrwebus and vexamous [29] The second queslmn was whemer there was a decision by the Mmisler refusmg ha make a decwslon (as opposed to 17 m uxnNmmvEnursunAwnFn «me. am ...m.mm .. H... a may he mmuny -mm: dnuamnl VI mum Wm! making a decision). The decision by a decision-maker remsing on make a decision IS susoephble to an erdar of conrorari‘ (aecisiori in me second sense enunciated in Council a! cr»/1 same Unions. in me irisierii case, we Mimsieruid not reply 1a me applicants ieuer wriere ll was sought for me MinIs|av |o exercise his vowers under seciioris 135 or 1271311) at me in In «re manner dlcfalefl by me apphcanl [:17] The principles WI respeci oi a 're1usa1 in make a decision were estabhshed in RI Bukit Sunhawang Rubber Co Ltd v sembawnng Exutn La: [1951] 1 MLJ 259 Ind lcllowed in wimoim AI-Vauma Sdn Ehd A mini v. Plnlzdhir 1-arisii Km Tingui [2015] 9 cu no The prine-pies can be summarized as ioiiows (i) A reiusei to make a decision may be an ahsoIu|e relusal in terms or mere may ha oormuci amourmng |:) e reiueei. were me vesvondent has not reiused cnmpliarroe in exnress terms 11 rs a quesiion of fact wiiemer ms oonauci evinces a clear determination not to comply (11) There musi be clear evidence of a refusal ii: am. This can 11 r~ MENNMVEEDISUEAWHFQ “Nair s.n.i nuvihnrwm be .1... e may 1... nflmnnflly -mm: dnuumnl vn nF\uNfl Wm! be aslabhshed pnmanly an the basxs of an mardinalely Vang any as to amount In a rsmsal |a Ixmsider and daxermme the applncalmn made to me decssion-maky (R v Central ProIessmna/ Commmee for Oplicrans [1949] 2 All ER 519) [:1] m my judgment, based on me facts auuaaa to by the appncams. (here was no Innvdvnate delay as the leller seekmg directions and lax sxsmpxinn was dzled 13 \2 202! The 1udAc\a\ rewew apphmtion was Need on 17122021. ms time frame does not evince an wnordvnam delay The Mmisler was bemg asked 10 review wha| |he DGR had done and la lune duechcuns and exempt taxes. [32] For compmeness, even it [hare is a decwsmn ma: quawmes as a ‘refusal to make a deusxorf that us suscepuble to certiarariwhat can be quashed. N at an. ws memy the daemon relusmg to make a de::Is\on. The case oi hln mu mu Naalmddln v The Registrar at Socislics [2012] MLJU 1623 \s structwe There the avnlncam made an applvcalvon la the Regxslrar oi Soaenes (“Regnslrafj lo regwsler a pohhcal party The Ragauar ma not make any ueuismn ennerm uemse or to arrow the appficahon II was new man an moramaoa delay. 29 m uxnNwHvEnnrsunAwnFn «mm. Snr1|\n-nhnrwmbe men a may he mmuny -mm: dnuumnl Vfl mum Wm! without good reason. Io make a decisrnn amounted to a reiusax |o make a decmun‘ Rawnlhran J (:5 HI: Lorasrrro man wlsj held me: such Vnovdlnale delay was unlawful anu wire was me socierres Am 1966 but to oemper the Regislrar In regrster me oalrucal would be punrng me can were me norse as me Registrar has not made any aecrsron as yeL An muar or rrrarruarnus Ia camper me Regrsuar In make a decrsion wrrerner In regrsurr me pohlical parry or nm In regrsrer the political oany wrmrn 21 days more order was made by HIS Lomshrp. [:31 Thus. an apphcahan ro auasn a aacrsran by a aecisron— maker not to make a decrsron must be aooonrpanree by an older or mandamus re oornpel me decision-maker to make a decisnun on me manner as rnanaarau by Paruarnenr, Tne mun cannot usurp rrus power Vn the mslanl case, rrre pmver rs oonrerred on me Minister Wvlhoul me acoampanymg order of mandamus Ihe apphum is only Veil wrm ‘no ueasran made by me decrsron-maker‘ [34] Srmllafly. m me mstanl use, I! ma uecisron not in make a demon re decrsron not to exeruse powers under secuon 135 and/or 127(3A) ol |he WA, rs quesnea. an order or so rn uxnNaumvEnursunAwnFn “None a.n.r nmhnrwm .. met! a may r... uflmnaflly mm: dnuamnl VI anurm war number oi imv cos! houses In be 30% oi tne touai non low wsl vusidenhll umts that are uutit Propefly Developers are given in option to make monetary contribution (tow cost canmbuhon) to the Penang Slate Gm/emmenl VI Ileu oi constructing tow oost houses. The applicant epteo in make the low cost oontnoution on tne oasis lha| me paymem was made in me eouise oi business. [4] on 26252020. tne DGIR tnioimea me apphcanl met its claim for deduction oi lhe low cost oonmbultcn was oisattoweo The mason |he DGIR gave W3! that Ihe Oonlnbulmn was A; penalty wnicn does not fall under secnen 33(1) mtne ITA The applicant disagreed and an 15 92020, expiainea wvty tne paymerll was deductible under |he Sscllun 33H) DI lhe ‘TA amongst others, lhal the payment was non penal in naluvs and a payment made wnotiy and exclusively in me pmduclton oi incame in Carrying on Ihe Ippliclnfs business The DGIR, an 30.9.2020 disagreed with the explanation oi lhe applicant and maintamed its position that the payment was not dedu :3 under the sand sectton Undelenedt me appticant on 15.10.2020, 3.t1 2020, 4.122020, 5102021 and 3011 2021 gave iuntier reasons and mainteinea its posmon as to why tne low east IN ux0NuiHvEwtsu0AwnFn «mu. s.n.i nuvihnrwm be mad m new i... ntwiruflly MVMI dnuuviml Vfl mutta Wm! mandamus Io compd me Mvmslev Io exercuse his pwwers must «allow However‘ as shown ebme no order 01 mandamus can be made as secuons 135 and 12713» oi the WA centers mscrenunary power and not a duty on the Mmnsler Tne non-epplrcabllrty af Seclrolvs 135 and 127(3AJ ol the In [:51 me us an emmionex ground In refuse leave an the premise that me apphcalmn As fnvnlcuus and vexalious Again. « is irnpcnanc to keen m mind (he lollowlng cnmew facts n) that me Mrnrsxer me not make a daemon in respect or me applmanls‘ requesxs, Ind (H) me: the essessrnenvs made by me DGWR are alleged |c be Mega! and/or unlawful Le me lax xHegaHy levlad in ‘aw The apphcants came In the Mlnvstev lo set asxde me assessments made by the DGIR byway an directions to be gwen to me DGWR to set esrde the same or me Mmlsler rnrnseu exempt me tax as assessed by me DGIR. [:51 In my new, the MInIs|ar has no power In do what the app|Ican| are requesfing him In do under Secuons I35 and/or 127l3A) of the in As sucn, mere no arguable case lor rnvesngamon at me subslanlwe stage for mu relvefs prayed or not 2. rn uxnNmmvEwrsunAs'mnFn «mm. s.n.r lunhnrwm .. H... e may r... nflmnnflly mm: dnuanml VI mum WM prayed «pi i e mandamus, oenipmin and declaration on me inatanai presenied to this cpim. My reasons are as (minus. [31] The VTA is stnicturaiiy designed and is divided into pans and chapters io lake cam oi specinc areas Yrie power to sei aside any wrorigiui assessments in iaw iies with the son by way o1 an appeai under seztmn 99 oi the ITA or in cenairi insianoes by me High court by way of judicial review ii special cireumsianoes are shown sections 99 to 102 is in chapter 2 under Part vi or the ITA which speufioaiiy provide [or ‘assessments and appeals’ An appeal envisaged in the sections is specifically and expressiy dimmed against assessnienis made by the DGIR The scii are coriterred with express power under paragraph 26 oi schedule 5 or me ma lo dischlrge or sei aside or amend any assessments iriaoe by the DGIR An appeat against the decision of (he saw lie to me High court (section 102 mad with paragraph 34 otscrieduie 5 or the IDA) [say Section 135 pnhe ITA is housed in chapter t under Part x which soieiy concerns iaoiniriiatratipri‘ The purpose ol the provision is tor the Minister. when he is at ihe View it is reouiieo. to gwe dlrecllans of a genemi charader as in the mtemse oi the iiinctiaiis onhe DGWR‘ not inconsistent wiih provisions or the "VA! lo the DGIR :1 rn oxanainwzaimuaasuiire “Nair s.n.i luvihnrwm be UIQG a may i... nflmnnflly MVMI m.i.n VI aFiuNa Wm! The direcirons sie ednnnisirainre and general in naiure and oenainiy r-oi dirodians specific in nature such as giving anecmns [0 ins DGVR to set asme assessments he had made in a pamcuiar case. Selling aside an assassnieni IS no: a matter cancemirig ‘adminisIla|iari‘ inning wnrnn ine punnew oi seclsori 135 or me ITA. The power to set aside an asswsmem IS provided oniy by my oi an appeal 10 the SCIT and not the Minister. [39] seouon min) at me ITA specifically confers power on me Mmis|ev Io gram iax exennpiions. The sedlon is In Pan ix oi ine ITA wnich ooneorns ‘axzmphuns, remission ano oiner rsiisr. Section 12‘/(3A)nf|Iie HA is an empowering provisxan ooniemng power on me Mims1er|a exernpi a person imni ‘any provision’ or me ITA or oxompi ‘any Inwme oi a psrnouisr inna or any class oi income oi a parlxcular kind’ Tne semen envisages lhal me person requeslmg exempiion is Iamuiiy Viable to pay tax But. in me msiani case, when was sougm |o be exempted was «ax man snouia noi have been ievren since it is ine appiimnrs pleaded case was that tax was illegally, anmriiy andlor wrongiuiiy assessed in isw xx rn uxnNuiHvEnDrsunAwviFn «mm. s.n.i nuvihnrwm .. med e may he oflmnniily MIMI dnuuviml vn .nuna vtmxi [40] u is basic law that ‘income tax \s a tax on mcume‘ and exemplwun cmy becomes reiavanl when Ihere Is chargeable Income, but not olherwxse‘ This principle was reneraled m Kotua Pcngavzh Hull Dalam Nogori v Porhadanan Klmaiuan Ekunami Noqnri Johor [2009] 5 cm 515 by |ha Own cr Appeal relamng lo‘ amongst omers, Lownr Flrak co-aporsun Mouslng sncmy Eon-ad v Kama Pongarsn Hasil nalam Nouuri [1994] 3 cu 541 where u was held that a |ax exemplmn .s only given aller hahillly lo vax has been determined in me iouowmg words: m omer words, mere must llabmly Io moome lax um and men only me quesuon or claummg exemphon arises my m we mslanl case, the apphcanl ws dairmnq to be exemmed. not from lawfully dslemunefl |ax hul (mm msgsuy and/or umswmuy Vavued tax Thai us nol ms purposa ol secuan 127(3A|cv1the NA, seam I27(3A) ol the ITA >5 (0 exempt tax Vawfulry rswsa tax I: .s axxomahc mai anly ‘awful Vavied lax can be sxempnea. Thereiore, lhe exemptmn sougm in me msxam case us something that the Mmistev cleafly has no power 01 domg To 591 asme me unlawtuuy lewed tax by the DGIR, the 3. m uxnNwHvEnnrsunAwnFu «mm. smm nmhnrwm s. med w my s. mmuny mm: dnuumnl Vfl mum Wm! apphcant must approach me son by way of an anpea\ nr wf allowed, by me High com by way 0! wdlcsal mew. [42] For one above reasons, mere can be no arguabie case gwen that sediun 135 cc me ITA does not envisage ms Mmmsr gwmg geneval dnsauans lo the DGIR to set aside the assessments and mm secuon |27(3A) of the VTA do not enwsaga granlmg exemplnons m vespecl av mega! and/or unlawfw tax. since, mere ws no power to do what Is requace-1 at the Mnmsler. (here us nu bass to seek me decraranons souym agamsn me Mimstev. There \s no arguable case lar lurmer mvesluganan at me subsiamive svage. Conclullon [43] n was submmed max exactly the same apphcahons as me mslanl apphcalion lor weave had been allowed by the High Court and IN one ollhose cases he Pcguam Negara V awn lnvulmont ea (C\vi\ Appeal No. W-MUM)-575-10/2021) me aecismn or me Hugh Court was upheld by me Court 0! Appeal. m uxnNuMvEnursunAwnFn «mm. s.nn nmhnrwm a. met! a may a. anmnemy -mm: dnuumnl Vfl mum am [44] It sufices to say that the sand cases arm CMMT /nvaslmsnl Llmrlsd are arsungursrraole on me admifled Iac| mar the spam: Issues mal aross for consicxeramn m «ms case was not me subject matter :71 any ui those cases. [451 For me Ioregarng reasons, we appfiuaucn for weave was drsmissad n/‘La Amaryset Sing efirc Smgh Judge High com Kuala Lumnur Daxed: 14"‘ November 2023 counnl omro Agg ag Fenora Wong Sue mg, 5 Saravana Kumarr Grace Llm vxn mg (People In chambers) and Nur Hanma Mahd Azham Messrs Rush Daman Sanavana Partnersmp Counsel M Ihe Rasmndorrt Noor Atiqah ZaIna\ Ahldvn. Senior Federal Counsel Altorney General Chamber :5 m uxnNumvEwrsunAwnFu “Nana saw ...m.mm .. med w my r... mm-y mm: dnuumnl VII muNG v-max H 2) 3) 5) 5) 7) 8) 9| WRP Asia Pacino Sdn Bhd v. mug. Nasinnal and [2012] 4 CLJ 478 Tang Kwov Ham is Clrs v. Pengumsan Danahana Nasional End 5 075 12006] 5 MLJ so Tlh Gual Hung V. Fovhlfllnlll Ylhlmg PIlIdld|k:lI Tlngql Nasionll [201 51 3 AMR 35 Dr Michaul Jlylkumnr Duvauj V4 Pagulm Nagurn Mlllylll [2013] 2 CL.) 1009 Menleri Eesar Negeri Pahang Darul Makmur v smian Gnmillnu Mnkmur sari mm [2010] sou :23 Mom‘! Karlm Abns L 011 V Kltul Pnnqarnh Jlbllln Hll Ehwal Kosaluln smug Karpal Singll Ram Sinuh v mu: Haklm Noglu 201i] 4 cu 179 council of CMI Sarvlco llninns v Mi star for Civil sun mga413AiiER9a5 Tang Kwar Ham 5 Ors v Pnngumun mnahma Nuiomi BM 5. or: [206] 1 cu 927 :7 SN uxnNwHvEwrs\.mAwnFn DIE s.n.i n-vihnrwm be flied M mm .. nrwiruflly MIN: dun-mm VII .mm WM! 10! 11) 12) 13) 14) 15) 16? Mallysian Trade union C-mums & on v Mnmori Tonaga, Alv nan Komunlkull a. Anor [2014] 2 CLJ 525) Re Bukll Sembawang Rnbbnr ca Ltd v Semluwang Esum Ltd [1961] 1 MLJ 259 wlnmmo Al-Vxumu Sdn arm 5 Ann! 14. Fomndblr Tanah Kata Tinggi [2015] 9 CL.) 110 znhul bin Haii Nzsimddin v Tho Registrar of Soclol [2u12] MLJU 1523 Keeua Pengaran Has: Dnlam Nageri v Ferbadanan Komuiuan Ekanoml Nogori John: [2009] 5 cm 513 Law-r Punk co-opmun Houslng Socluly Bavhad v Kelua Pongaruh Hull Dalam Neg 1994] 3 CLJ 541 Puauam Nogzr: v CMMT lnwslmonl Llmllod (cm: Appeal No W-D1(lM)-57540/2021] 3: sm uxnNwHvEwrsunAwnFn mm. s.n.1...m.m111... LAIQ4 w my 1... WW1-y mm: dun-mm VII .mm v-mm eonuiomaoii was deductible The DGIR in ieners oeneo 19.10.2021} 23.11.2020, 10.12 2020. 23 9.2021 Ind I9,‘i12021 dlsagraed wmi me explanations given one mainiaineo IIS position. [5] on 1 i22o21i me DGIR raised me impugned assessments agaiiisi me applicant. in response the applicant, on I312 2:221. reouesiee me Minisiei |o give me DGiR GIVECIIDHS under seemon 135 or me ITA and/or seoiion I27(3A) oi the ITA to set aside oi exemnx the lax reiseo against n Four days ialar. on 17 122021‘ me apiaiicam healed me ma IDn ol the Minisier to respond as a decision not to issue «no oirecnoii and/or exeirinl me amiireriiy raised lax arid on iiie same day moo mis application [or isave io oommerioe judicial review pmeeedlngs. [51 The applicant ireaieo me ieiiuie oi mo Mimsler to respond as a reieeuoii oi iis iequesx io give directions lo set aside and/ar exempt me arbilraniy raieeo tax and proceeded to me me ins(an| appiieaiiori «or leave «or me reiieis as stated above. m uxnNuiHvEwisuizAs‘mviFn “Nair Smli nuvihnrwiii s. UIQG m my i... niwiiuiily mi. dnuuviml Vfl nFiuNfl mi The ground: M uvllw m The grounds in suppon of ma rannels sougnn in me apnlncalion were sla|ed In me Order 53 Slalemernl as fonlows (a) The Mnrnnsfefs duclxlon rs lsmlsd wnlh n/Isgalrty, unra ms, unlawlul andlor nn excess ol authority for me nollowung reasons: up The Mnnnuor lainad Io reannse that I715 nan: had acted arhnrarnny and exceeded nns aumonly when he fanned to consider secnon 3311) on the ITA wnxon explnullly provides me! any expenses wholly and exclusively nncurred in me pmduanon vi the Iaxpayefs income ns oeduonmne ll was conlendad that n ma appnncanl and not make «no payment mo uennfimle ni oompnefinon and oompnnarnce wound not bu nssued by the Penarng Slate Govemmenn which .n mm would resun nn no sane or the completed mm: and vonnowing theredmm mere wound be no genenanon or Income 5 m uxdNuMvEdDrsunzAs'mnFn “Nun: smun mnnmrwnnn .. med w my n... mnnnn-y mm. dnuuvnml Vfl urnunm v-man (u) The Mmine: failed tu realise Ihal me DGIR «sum In lake ‘mo acmunl me Hwgh Cour! decwslons m Pnma Nova Harts Development Sun and v Kslua Psngarsh Hastl Da/am Nsgsn and Save/ergn Teamwork (M) Sdn Bhd v Kslua Psngarah Hasil Dalam Negsn where m was heki that me cash conlnbumn Io nhlam me release 0! me Bumlnutera Vols queue is a deducmale expense under semmn 3311; or the ITA as K was an expense wholly and excmswely Incurred m we pmduc|ion :2! ms taxpayer’: income. Ahhough me case ofPn'ma New Hana Development Sdn Bhd was reversed by me court of Appeax lha appncam contended max m absence or Ihe grounds uf Judgment me pnnoupxe soaced by me Hm: Com m Nova Harra Dsvelopme/1! Sdn Bhdand Sovsrmgn Teamwork (M) Sdn and was sIiH apphcable (in) The Mlmsler ranea m realxse max lhe DGIR did not take Into acenunl me Hwgh Coun decnsmn m Kama Pengarah Hm Dalnm Negori V Samar Malaysia 7 m uxnNwHvEwrsunAs'mnFn «mm. smm ...m.mm .. U... m may he mmuny -mm: dnuumnl Vfl mum Wm! Sdn Bhd {zovzy MSTC some where m was new that var mceme tax purposes .1 is gunmen! In look as me xexpeyers busmess as a who\e sec M operemon dwrected wwards uroducmg Income [M The Mlnlslev lafled to realise that the DGIR favled to consider that even .1 me low cost conlribmion was a penauy, n Is imponanl 10 none Ina! penames Incuned In the course ov me taxpayers busmess are daduclihle (see Day 5. Ross 1.1.1 V The Queen (1977; 1 FC no (TD) and Bnllsh columore ma 1/ Ha: Mapsly me Queen (1999; 3 so»: 304) (V) The M|ms(er (mled to reense that me DGIR men In eunsxder that allemalivew, the Vow cost conmbumon is tax deducubre undar :ec1|an may of me ”A\ wh r. provides Ihal any gm 0! money made m we basxs year to a State Gvvemrnenl or a Vacs! eumurny rs deductible (or that year in am‘/mg a| me «man Income. It was ocntended that apmymg me pnncxwe m seban Beriaya Sdn Bhd v Kama pengererr Hasil De/am Nsgon (2000; MSTC 3771, m uxnNumyEnursunAwnFn «mm. e.nn nmhnrwm .. U... m my r... nflmnnflly mm: dnuumnl Vfl muNa WM even a paymenl made under pressure such as a wntriciual obligation could be voiuniary and Inns eorismuiea a gm (VI) The Mimsler iaiiea in reahse that me DGIR nas disregarded me we pnnepie met If! a laxing statute one can aniy Iouk iauiy al me ianguage used and what IS eieany said and mai nothing I510 be read in nor implied (see Nalronsl Land Finance Co- opsralrve Society Ltd v Director General of Inland Revenue [1993] 4 cL./ 339) arm that a pmvislnn VI a taxing smlule must be read slnclly is one to be apphed against me revenue and not in ilslavuur and mat inneie IS a dnuhl sucn mum must be reserved in me taxpayers iaveun (h) The Mmis1er’s daelslan IS irrational and/or unreasonable iur ma iauowing gvounds (i) The Ministers decision 13 name to be quashed on me ground ma: ii is so unreasonable that no rn uxnNwHvEni:rsunAwnFu «nu. s.n.i nunhnrwm .. med m my me mn.u-y mini: dnuunml Vfl muna Wm! reasonable person would have come In that dacisinn This Is espociafly so when the Minister had iaiiea to give any vahd iustifinalion, reason on balls (or us decision not lo exempi (he amimiiy raised (Ix. (ii) The appiicam at aH material times acted in good «aim, gave Vull an-uperahun, made full and «rank discioswe and Dbialned pmlessionai advice if! managing its finance: and tax affairs (iii) The aecisions of me superlol owns and «ms own In rsiaiion In ms Inlerpletalion and conslructlon or iegisiaiion and case iaw are pan or use laws oi Maiaysia and binding on me Mmisler. The Mimsier cleariy Iaiiad in lake eogmsanca oi muse decisions. (IV) The Miriisher iaiied in appreciate and lo glva e4lec1 to the (rue 9119:! and apphcaiion 01 the ‘TA amounts la a clear oanlravenlion 0| Article 95 0! the Federal Constitution m MGNNMVEGDISUEAWHFQ “Nair s.n.i mmhnrwm be H... M my i... nflmruflly mi. dnuuviml Vfl .mm Wm!

Tika 2.6.0 & Pytesseract-0.3.10

WA-12BNCvC-166-12/2022

PERAYU VILLEA ROMPIN BERHAD RESPONDEN 1. ) BUMI MULIA CIVIL ENGINEERING SDN BHD 2. ) Jabatan Insolvensi Malaysia

This Court is of the considered view that appellate intervention is warranted in this instance. There are erroneous findings on facts and in law that resulted to a wrong decision. Following this Court’s assessment, this appeal is allowed. The decision of the Session Court is set aside. Costs of RM10,000 is awarded to the Appellant. The Appellant had sought for the costs incurred at the lower court for the trial of this matter. For that a further sum of RM10,000 was granted to the Appellant.

24/11/2023

YA Puan Roz Mawar binti Rozain

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24/11/2023 12:00:33 WA-12BNCvC-166-12/2022 Kand. 28 S/N toYjfhHt8Ee7SLe34O7TFA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N toYjfhHt8Ee7SLe34O7TFA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N toYjfhHt8Ee7SLe34O7TFA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N toYjfhHt8Ee7SLe34O7TFA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N toYjfhHt8Ee7SLe34O7TFA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N toYjfhHt8Ee7SLe34O7TFA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N toYjfhHt8Ee7SLe34O7TFA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N toYjfhHt8Ee7SLe34O7TFA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N toYjfhHt8Ee7SLe34O7TFA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N toYjfhHt8Ee7SLe34O7TFA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N toYjfhHt8Ee7SLe34O7TFA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N toYjfhHt8Ee7SLe34O7TFA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N toYjfhHt8Ee7SLe34O7TFA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N toYjfhHt8Ee7SLe34O7TFA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N toYjfhHt8Ee7SLe34O7TFA **Note : Serial number will be used to verify the originality of this document via eFILING portal HA—12ENCvC—1S6—12/2022 Kand. 28 2»:/mznza 12:02-3: IN mE HIGH COURT IN MALAVA Ar KUALA LUMFUR IN THE FEDERAL TERRIIORV. MALAYSIA BETWEEN VILLEA ROMPIN EERNAD (Cnmnny Nu: 1nan1ua1u1(1u5249»x)) APPELLANT AND sum MlI|.lA own. ENGINEERING sun END (company No: 2on5oIu1sns4 (E93101-D)) RESPONDENT aaouupg QE ,g_un§uE In sonlaucpun u Lllun m M the sum Court, me Respondent had sued Tumang mu Sdn Ehd msa; and Iha AppeHan( (or breach Mcumract mus agreomnm was Lellars ml Award dated 20122014 and 1e 11 mm where nss appcmed the Respondent Io carry ou| sub—\ibL7uv wurks and up supply mzlenals‘ show driwmgs pvenarallun, «anmnpn, unwary, mmnnaupn, sm xaVunHmEu7sL.:uu7YrA mm. spun nmhnrwm .. p... w may he pnmmuly mm: dnuumnl VII mum Wm! la 9 and commissioning 01 madwuiks car a project in cdiisinm and complaba a msiomy resdn ndiai ai the can Resorl VI Kampung Larwl in Rommn. Megan Semhilan (the said pImec1).Ths Respundenl was ane Mme wnlraclors for me said pmjed [21 use had axecmed a deed oi fiugnmem no payments dazed 1492016 on me Isms at me rianding over at me said men nsa inlnrmed Iha Reapondani Iha| me Appeiiam wls ll) maka payments duscfly in ma Reapondenl rd: an M Ins Rsspondanfs sub-labcuv mm Pursuant in ma naliflcalion, me Rlspi:ndan| had signed me Nance oi Amgnmunl and lrmvocable lnslvudnn dalsd 17 11 mm In adepi ma apdiyme termscfme dead al assignment [3] The Respdndani had compiaiad all works bu| (here was «mi in ounsiandmu Payment av RM4e9.225 based onlha invutcas Faiiuie an Ihe pan L7fTJSB and ma Aposiiani resulted in me legal sun. [A] 1453 was Wound-up Shnffly alter me mai was new and its um/are Iiquidamr did not mnunue mm as deience The suumissions sitar Ina! were absent dmsas submissbcris The Sass on Colin nad allowed me nespdndenrs claim against me Appeiiani [or me said amnum The Respundenfs daim agamsi nsa was dsmissed Heme unis appeei Thls Ag]; [51 The Appuiani s compiami againsi ma Session cows d9€I§I07I are as Voiiows «mm. s.n.i navihnrwm be UIQG a may i... nflmnnflly mm. flnulfllfll VI mum Wm! of me Cour! :s was simple It is In construe me contractual term without any pracanceprton as to mat the pames inremied (Pagnan spa y Tladaz Ocean Transponanon $4 [1957] 1 All ER 51 at p98, man was amlmed on appea/ wde 1193713411 ER 555)." [151 ms Conn ooncmdes man at most, me letters shawed me muse! negahaflans bulcannol nan. precedence aver um dearand unambtgunus terms a! me am o1 ssugnmarn that had cleafly nxpmssad me scope 01 (ha assigned naymenls Yhe Aooauam was nnly nespansmle 1:: pay divsrrfly lo ma Raspendenx For us: me Mme paymancs manna to me wuvks in be camsd and In complete ms prqed Thosa works were Var Rnadwurks as pevma Isflarelawarv dated1l11 zone The Anpellarn um nL7| breach any cumracls be 11 Inner: of award dalld 20122014 and 1a 11 2015, orme used olaisignmenl. [171 In any event, none oflhe muses cafled a1|na¥cw\d confirm man |he uses of assxgnmem was for omszanaing payments for sub-labour wnrks condumed by m Respondent but no| pavd ny nss. This Cowl .s unable lo aocem me Resporvdenfs argumenl that male was a pnvny of ocntracl between me Aunellam and me Respanaenn Nu swuenoe cnuld ourroborafe such argumem The sad Mo Iene:s were nut contract to begin with They wave a1so not addresssd to me Appeflzm and me no! -n any way sme us agrsemanl ur consensus to ma Inlemretaliun theme! by the Respsmem (See Klpong Prospecting Ltd! on y SchnIIdI[19fl8] 1 MLJ 1m; [1957] I ms 57 on ma pnnclpies of flocmne M conlramj. Manovar‘ omaau wnu-ac(s were axacmed — Ihe need or assngnmenl which pamos had alfirmad Ihe oomsms memo! rm: ma nn| Include ms auxsnanuinq payments lor the sub-‘about works ov me Raspandanl ma! were due by usa «mm. Snr1I\nav1hnrw\HI>e .1... w my 1... nrW\n|H|Y mum: dnuamnl VI mum M1 [131 The Sesslarl court drd find that ttrere were no pmvtslansln lne deed or asstarlmerll tnal mended tn lhe sald orrtstandlng payment lor suh— labour works by lne Respondent la be paid by trre Appellant dlrEc1ly Hnwevsn n lourrd ttral rrr larllng to respdnd la tne letter or ts 9 zuls, the Aapellanl could not be salt! to not have any Intention to make trre sald payment The seeeron Cowl had addrtlonallyrelled on TJsla's letter lo me Raspandenl dated 4 1t 20I6 Tna Sesslnn oeun round met me deed cl asstgnmenl was lnapplicable as met was only lnr tne tuture payments ol Roadworks as per me lelter of award at ls tt zots [1 9] ma oourt found that the pclsmuns laken byrne Senlnn coun were cnnlradlclnry wnlcn had led |a an erroneous eonclrrelon The deed :71 asslgrlmen| prevatled over me etnercorreepondenees or rtmlficalrorls on tlrrs rude eleutstandrng oaymerrls tnetnse s|lH owed Tn rrnooee on me Auuellzrll an asslarted peymerllluvlhe eutstandtng payments was akln to rrnpesrng a new canlraclor la rewnte the tenrrs ohhe deed olassrgnrrrent lhal had already been execuled on 16 9.2015 lsee Shell Malaysia rradirrg Sdn sndyurrr vac reek A Ors[19B2)2 MLJ tat; [1952] t LNS 11) [201 Ttre Resporlderlrs cause cl‘ actron was premrsed on the letters ol award dated 2a 12 2014 and la tt.2otrsr and me deed uf asslgrlmenl Those contracts must be serutrnrsed and rnterpreted es tney were tltnere were no obltgahons tnattmurrd lne Appellant. men t| was wvorlg ln law and last to firm so [211 rnere was lalture lo ahselve met me aeeoendent and use nan departed lronr melvplaadlrlgs ms pnrtclpll muslvtntbe deregarded rtle Fedeml Cami‘: dsclslorl Anillll Anmll I Anal v Abdul Kancm u «war. s.n.r luvlhnrwlll be u... a my r... aflnlnullly MIMI flnuavlml VI aFl|.ING vtmxl [19159] 1 ML.) 22 confirrned mal all pames musl be bound ny clleir plbadlngs. The Resnondenl wuld ncl aspen hum its pleaded use on me same lanaem, lhe Inal mun mus1 make fillalngs an ms case pleaded — Mum were nol any nuns laws. [22] Yhe appllcallull ol me plmclple or vlcanous ’ lalllcy by me sesslall calm was llul colrecl VI lhlfi lnslanl ll new man as me empleyel muss. me Appellnnl was liuble (0 uluelrle Dulslandlrlg p:ymen|oI RM469225. ms annuals may Ipply lol 3 loll commmad by me employee ln me cows: ul ms amplaymlrfl (me sea-lal Coulfs fleclslcn III cur lulur socuriul lu) Sdn arm v Momma Allllrul Allllll bln uunulllm Alllll [2n221e MLJ 369 aullllls Is a case L713 breach olcollllacl H u lmlxlflanl In na|e lllal me RISDOVIUEM was awamsu (ha con1racHolaub—\abouv works 0!! 2a 12 zlm by nsa llwas llolllla Appallalll buITJ$B who was me lllaapenaenl eollllaclnl lnl me plolscx had me aclual wnllol 01 ms wlzrks dune Wllh lelelallcelo me Caurl ni Anpaa\‘s ueclslen m Um slln slih v Lokmlrl bin Talib I ols [2012] A MLJ ma, (291215 cm ssl, the lollawlllg declslnn is applicable llefe — In aelelllllnlng wllellllel a pally ls a sswalll al agenl nl all lnaegomelll conllaclnr llle judgment of Lora Justice wlagery In Sllisbuly v Woodland and o(IlIrx[15I70] l on 324 “I! IS lllla law the! all elllploysl who employs an lmepenaelll eollllnclol ls llal Vlfiaflflusly reJporISVbIe R): ma neg/fgancs 0/ that contractor ml VS ml ml In camml me way /17 wlllcll ms lndepfinderll collllacml you the wurk, allallle V/callous oolgauoll ol . lllaml for me H99/IDOVICG onus Ssh/En! does no! ans: mar ma fl(£I)aI'IEh1fl mslllplayal mlllaepelllmlll mllllmol ' H “Nair s.ll.l luvlhnrwm be UIQG w my l... nflfllnlflly mum: flnulfllfll VI nFl|.ING Wm! [231 Tha| aulllorlly cmlcemed me «an ol negllgenee where me Appellant snbmllled lnaz employers were not Ilable lrl Lon {:71 me negllgerlue ol the nlaln oonlractuls lsee Hudson‘: Bulldlng nnd Engimedng conlrasls 112"‘ Edn) at pava1—14Q) ms calm upholds me pnndple lnalconcluaes lne Appellant ls ml llama lav whatevel meaanes 7455 may have Dommlfled 1241 Based an lna lacls a! me ease. lne sssslon coun had am wrlan l: launa nlal A1sA leflar corlsmulad an urldenalung by me Aapellanl In aileclly pay to ma Respunderll lna nlnslanalng sum of RM469l2Z5 ATSA's letter was nal aaalssm or coplad to ma Aapallanl and am not conlaln any acquloscence by me Anpellanl lor such undarslarldlrlg No collalaral l:en|nl;|1wVll=l'l was nal plenum llsa ansen it any lnalsnal lune [25 There ls one umer lssue wlm regard |o he sancllon lronl lne llquldalor given nss was wnund up on 2n.lo2o22 alley me tnal had concluded TIVLS coun luuna man there was no evlasncs or any sancllon nblalned. Nevem1e|sss,lms coun ls focused on adludlcahng me appeal by me Appellanl agalrls1 me sesslon cows aeaslun Ihls can a acclulon [253 rnls cnun ls cl lrle mnslaerea vlsw malappe1|a(ein|ervsrmon ls wananlsu ln lnls lnslance mere are enonecus nnalngs on «acts and ln law lnel reluued lo a wrong daclslnrl Follawlng lnls Couns assessment lnls appeal ls allowed The aeclslun 0! me Sesslnrl calm IS set aside oasls of RM1D,0U0is awarded lo me Avnellanl The Aunellanl had s/augh| l. “Nair Smnl luvlhnrwm be UIQG a vsfly l... mlnll-y ml. dnuavlml VI nFluNfl Wm! fnvme oases Incurred ac me Vower com var mu man cums mal1€r.Far(ha( a runner sum M RM10.D0O was granted In me Appellant DATED 2: ocroasn 2023 ROZ MAWAR nozmu JLIDVCIAL comwssxousa HIGH coum IN MALAVA KUALA LUMFUR For we Apps/Van.‘ r. Kuhandrarn Fadz/in Ros/es, Clsmervf Lmg ling Nana and Me/mun D Arvgllus T/n Azrm A Axsoctalas For 1~ Respondent Chalvdramaran Pararucdr rm Chandramsn 5 Go For 2M Raspandonl Dayangku Nurwala Sakma Fg Palate Malaysia napanmam ol Insolvency Jalvm Bahm u m mvurMzEu7sL.:uo7vrA «mm. sm-1 ...m.mm .. U... a may he mmuny mum: dnuamnl VI mum v-max (a) The Aopeflanl had no ocmkaclual oblrgahons In make paymenls tome Respondent us) Tnele are no pmvwswns m m deed av assignment man required me Appeuam In make paymems dxrenmy 1» me Rasnunaanuur Ks sun-mbourwoms‘ and (C) u was nsa (ha! was name m pay Ihe Rupenaonts «or me sad outstanding dam! [51 To assess whelherlhe arguments onha Appellant carry mems. Ihe dwmnmugy :2! all the agreements that mvohred me pames and also Iha Vast paymam made by TJSB are sex am be\A7w . On 1610 2014 me Aopellanl appomcea nss as me cnnlracmr cm the pmpa was a Iener ol award wmcn farmed a Vegal binding oonlracl belween mam. . on 2:: 12.2u14 nsa m mm appalmed me Raiporvdsnl as me submmmaor to carry out me sulflabouv wants me a leller oi award‘ . In 2013 me nmarass cum prom: was naked coummng ma non-paymem by M55 (or me work: don: ma: rasultad m some of mu sub4:an|ra:|urs rewusmg xa wnnnun wi|h me remammg works, . On 2 5.2015 use wmha a new oonrmv-mg me ausmasion wnh PNE Commemm Sdn and where me Iamev agreed to «mm. smuw nmhnrwm s. U... a may he mmuny mm. dnuamnl VI mum Wm! ‘undevtake ms rsvrsw and sememam alall mltslandmg, due and lulme claims /0! payments by me prujad supp/rsrs, sub- conlrauors, ram A machfnsrfes and service pmwders m re/anon to me sard propel‘ use informed lhat u wanna pnsem an auzsvammg clams due by it for FNE Ccmmermal Sdn am‘: mvw and sememenl The Vefler slated mac nus discussion on assmanoe was lar me prqeI:| lo uenunue wuhom hmdrlnoe. . On woe 2015 ATSA A1-cmlec1s sun Ehfl mu snpanrwenflina amer for me prujecn wrote to 1453 mm smea nsa had confirmed ms aareemenuorpne Cummerma\ Sdn Ehdlo pay direcfly aH mnsvanamg paymems as at Ma! date (ATSA‘s wetter). . On u 9 2016,(o ensure mm mm propel would be completed. In: Appenam and 1455 amevea m|a me deed 0| uslgnment av paymem max mended‘ amongst mhars - Claula Am 'Slnc1Iy on . wllnou! Wmm bays and mm ms wow cfLvmp(slmg the pm/9:1, LGB wtll oils! to the auavnor to complete the uncomplelad work wrth me use or Sub-Corwecfors ' use rsfened In the Anpeflam must on Assuanor is use - CIause1E} “In omena comp/ate ms Pmjen, U35 and Me Assrgnar are now Ussrmus lo mutually em: mm mm Assfgnnmm to record [he Iemvs onus assrgnmsnt between me Assfgnor and me Sumconlradors m mnplettng me «mm. Snr1I\nmhnrwH\I>e U... w may he mmuny mum: dnuamnl VI mum Wm! Pm/act upon me term and condrlrons hsrsfrlaller appeanna" . Clause \ 3 ml aenmmn cl ‘Assrgnerl Payments — means an the Mars ngms, [mes berlefils, ermflement, mlerests and proceeds or ms lssignarundmthe cansmmn Sub- Conlrams a/rslng Item mo Frqscl lo M amend mm any the allecln/9 date or rm: Assrgnment, ‘ - cause 1 3 an ear: subcontractors Inc/Wing sub-labours. ssvvme pmvldels and/av sung/ms engaged by me Msrgnor lo comprsre me 5-rope: ' an M ‘Sub-Contraclnls — means the — The memmcauan 01 monmplue work: «man m Uzuse 2 ax langlh as me process and procaaum lov nu paymenu. ofllheae moorrlnlala wurk: manna Appgnaru was ass\gnsd m — The Appellants oovlnanl to pay Vs provided luv under Clause 3 1- ‘L65 covenants wvfh the Assrgrvor lhal A She" my and puncmally pay a: amnarge to me sun» Convaclors me cmmsa Assrgned Payments m mmplenng ms Prujecr m accordance wvlh ms pmwsrons of Hus Assrgnmsnl and me conmmm or Conmscl. ‘ . on 19,9 2016 nsa wm|a In FNB Commeu'.\a\ sun Bhd man resumed ms appraclllion cm the sxeculmn av me dead av ass4gnmen| use canflrmefl max me dead ciassrgnmsm ma «mm. Snr1I\nmhnrwH\I>e U... w may he mmuny mum: dnuamnl VI mum Wm! not encompass me ammml omszannmg. Thus‘ use pmpnsed a plesenlalnon on ma slams and saughflora date, . On 24.10 2015 ms: paid RM3B,ODU (0 me Respanmm for me works man had already been named um wnn me bamnoe nl RM/169,225 according Io ma Rasponaenrs Invoices notyet pan: and omng, . On A 1 \ 2015 use mama ma Respundenl me a «enter mac aH aulsvandmg paymenu one In the Respcndanl MII be mum by the Appe\lin|pur1uenllc me dead ul axslgnmenl rm: wls no|::oD1adIn|M AppaHlrIt, . On 17.11 2015 T455 and me Rlspondani swarmed (ha Name of Asswgnmunt max reoogmsefl ma (arms of mo and 0! ass>gnmen( and me Innemtawam 1m Roadwurxs: . On 1811 2015 use appcmcaa me Rsspundent m cany nut and commena ma scope 0! works much we ‘Raaflworks‘ vlde a Weller av award. 0 In 2017. me Appeflanl ma Mly umaa all paymenll duamlhe Rawnndem far (he naaawom. m The aaspondem sum! nsa and ma Appellant var bveawes M agreements we letter: M award dated 2012 2014 and 18112016‘ one me deed av assvgnmenx Vn aHowmg ma Respondent‘: c\aIm. Ihe Sssswon Conn had fmmd that me Appellant had a cumracmal umugananco pay me Respondent far ma outstanding payments «or suaaanw warn. the «mm. sm-1 ...m.mm .. U... a may he mmuny mum: flnuamnl VI mum Wm! Session Court had addmonally relied on me pnmapue of wcaneus Inability men n new the ApneHam liable [:1 me Appeilam argued Ihallhe asswgnmem 01 payments was umy var me wovks lhsl were named In onmp\a|e me pmjecl wmch was me Roadworks vme me Velm cl award aanea «s H mm Tn assass wmslhar lhal argument a memonoue‘ mu cmm rewewea me dead avassugnmem wmch was csnlral |o the c um by (he Ruspondanl Igavm me Appenam Yhe deed oVassxgnman|c|eafly wuuea the isswgned paymenvu Io an Iulure rights, banem emmemem am pmossds ollhe Rospondenl [91 The assrqnmen| av paymunl Io me Aopeuann was c\aav\y Var me Iuhnre Payments for works m onmplete me umject That would mean «or works zlletlhe deed olassrqnmem was executed, Mwfuch were carried am to eompiete me ormecl man was stagnarvl In ns pmgressmn due to me vanous challawges max mcluded TJSB's marmy no make good me paymems lurlhe woms that had mready been camad cm. The dead av asslqnmenldnd nal wmen i|s scone nlasiigned payments |o muse already mwrred and outscanamg (for me sumanau: works as per me wane. 0! award dated lwc years eamer on 20 12.201“. Hence, 4: Vs nus Caurfs consmered wewmaumpayrnems Incurred and omsunamg asax me we was ueea olassngnmsnl, ma Appenam was nn| ohI>ga|sd In use or In the Respenaem or any amsv nany. no} me nener from nss la Responuem 014112015 ms: was nol copied xe me Aupeuann sla|ed dearly wnac paymenls were nsllgned xo «ma am.‘ nmhnrwm a. U... a my a. mm-y mum: flnuamnl VI mum v-max |he Appeuam and lhey an 7101 mclude oumammg payments «or the works already exeouled by the Respondent '1 Fm yom Imher m/amuauon, all prwsc! mm »s schedulsdlo Iacommencs by 5" November 2016 mm means that payments shall cammslvce mm by end at December 2015; and will be rammed many byms mom: uwners ta aflsuppllsrs 5 mommy, suz>commc1o«s and mm: on . pmgloss/slaggurud basvs unul Ina pm/out mgezaa eompumon am In Am 2017 5 As such, any lutura payments m ms-pool al pmjecl and work: piogvuss mu be mm by me man owners and no longer by rum-ng mu Sdn Blvd 5 m msmcl of outstanding payment nwmg fa sunphsrs a. macnmery, sub-wntraclovs and ram Tam-my mu Sdn am: shell roman: a(I pmvlaus Harms directly to me project owners /or their nanwsraoon and dust! drsburssmsnl at naymenlx dirscr/y to me respective parties ooncemed " [1 1} n was merery swam lhsl for omsxanumg naymems not yet next! by nsa‘ u would forward me mums to PNB Commemal sun Bhd «or as conswdevalnn and duecl msmrsemenn uma rml stale mz\ me latlevand/or me Appeuam wls oDHgI(ed‘ conlramually or omarwwse, to pay wna|ever oulstandmg mm 1.155 owed to Ihe Raspondenl. [:2] rnmrare, n LE armnanus to mm mm aws commmau Sdn and and/av ma Apnauam was cnnlrarzluafly nhhgalorl m pay Ina Amount oulstandmu «or me sub-Vabuur mm czmad nul by me Respcndanh an «mm. Snr1I\nmhnrwH\I>e U... w may he mmuny mum: flnuamnl VI mum Wm! behall cl nsa Tnsx rener cf 4 11 mm was no| wpled no me Appellant and was nm based on any wnlracl or agveemsm In laci, as can be seen by In: eymenoe, Ihe dead 0! assrgnmenl ma nol snmmpass muse payments Ior «he works which was cunfinned by nsas Vener 01 19 9 me that had sougmfo mgencs Vov pretgemalmn and dlswssmn to expand such assngnmem oi paymenn. There 1. no enaenoe mm another agreemsm or oanlracl was erneted mm var um assignment at paymenflur me sub abouv works ma| me Responflenl had earned and were nulslandlng [13] Funhammra, (he nut monm an 2410 2015 ‘N55 had paid a sum av Rmasnuo la the Raspendam. men -n caurrs wsw Ihowod Ihzl mm was nlvev any asswgnmenl or paymane lo mu Appeflanl Ior ms nmslandlrvi naymants «or me sumabour walks tamed out by ma Respondem [141 u was ermneuus for me sussm ooumo rely an the earner ‘allele! 2 6 mm by H35 in ms oommemaw sen Brad and ATSA's\m1sran ms roumnng Imsans, (allhe negotxamons had taken place mereaner me saifl Iwo Iellsvs and wnvacls m me com 0! ms deed nl asswgnment and me Ieller olawzrd at 15 :1 2m 5 were execulsd co encapsulate me names‘ mermnn. (hjme sand xeuen were not contracts‘ Ina substance and conxanu (harem mamly slalld use’: agmamanl um um consamus or we Ccmmemal Sdn and. «mm. smuw ...n.mm .. U... n my me nVW‘Hl‘W mum: m.n.n VI mum Wm! (cjme said lellels wae not addressed or copied |a me Appellant Thus not my were may nm wttmn me knowledge 01 me Appenanc hm there were nu tndrca|Iun at any agreemenl ul consensus w me Appenant; tum was not pt. dad in ma Relpoodanl s pleadings [am on ma other hand Ina Raspondunl planted that me tattars U1 award (13036 20.12 2014 and 18112018‘ and the deed U1 amgnmant wen brlachsd by me use and me Appeuant [15] As new by the ccmt or Apaaal in Asiapools (M) Sdn EM v UM Conslrucliarl Sdn and [2010] 2 MLJ 7. ms inlenlvun of me panles must be aeoenatnea lmm me onntracl nsew At p21, me demston at nara 547 reads" Tn oanstmmg a written conllan, nxe me pvesenl case at hand, me professed nmecr or me wtm »s quno srmpte. I! Is to dtscavel [he mutual mlsrmon ollhe parbes (Ptoneer smppvng Ltd am olnsvs V arp Ho-ode Ltd and Intsmahanal Fma Semces AG v Katnna snlpnmg um and Tonen‘ ram: xatmmq Kama (ma ‘Ftna Serum‘) 1199512 L/ybvfs Rep :44 (CM) 5! pJ547[l. And we mlenlron ol the pamaa muu be ascunsmsd from the gamma": 1155!! Thus‘ the puma: tmmaum cannolgive am: awderlceta snawmannatr mlenttonx were at var/ance mm ma pmvmona at the canine! ctocumam (Penn v Simmons [W71] 1 WLR 1351 mu 1! mass‘ Hyundar Merchant Mnrmo Co Ltd V Gas-tm cnmunng Co Lls (ma manta) mm 1 LLyod‘s Ran ma (CA) at pm, sums» Movretarwws Ltd v Landon am: Dislrfcr Cmarnus La[19521 AC 165 mu, Zoan v Rouamba (200011 wm 150F1CA)slp1523; me task In m tnvurwzzuvst-:uo7vrA «mm. amt navthnrwm .. U... a may he mm-y mum: flnuamnl VI ar\uNa v-mat

Tika 2.6.0 & Pytesseract-0.3.10

CB-25-6-05/2023

PEMOHON SUHAI FANDI BIN RAMLI RESPONDEN 1. ) Lembaga Tatatertib Perkhidmatan Awam Negeri Kumpulan Pelaksana (No. 1) Pejabat Setiausaha Kerajaan Negeri Pahang 2. ) LEMBAGA RAYUAN TATATERTIB PERKHIDMATAN AWAM 3. ) Kerajaan Negeri Pahang

Semakan kehakiman - Pemohon dihukum buang kerja oleh jawatankuasa tatatertib atas kesalahan tidak hadir selama 49 hari dan gagal mengimbas cap jari - Alasan masalah kesihatan - Representasi bertulis telah dikemukakan - Hukuman dikatakan tidak setimpal dengan kesalahan - Permohonan semakan kehakiman ditolak.

24/11/2023

YA Tuan Roslan bin Mat Nor

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=206abbf5-1852-4605-9042-bca138827343&Inline=true

Microsoft Word - CB-25-6-05-2023 SUHAI FANDI RAMLI v LEMB TATATERTIB SPA PHG 1 DALAM MAHKAMAH TINGGI MALAYA DI TEMERLOH DALAM NEGERI PAHANG DARUL MAKMUR SAMAN PEMULA NO: CB-25-6-05/2023 Dalam Perkara Permohonan oleh Suhai Fandi bin Ramli (K/P: 770325- 06-5373) untuk mendapatkan suatu Perintah Certiorari dan/atau Mandamus; Dan Dalam Perkara Mengenai keputusan yang dibuat Lembaga Tatatertib Kumpulan Pelaksana (No. 1) Pejabat Setiausaha Kerajaan Pahang dan keputusan Lembaga Rayuan Tatatertib Perkhidmatan Awam; Dan Dalam perkara mengenai Aturan 53 dan Aturan 92 Kaedah 4 Kaedah- Kaedah Mahkamah 2012; 24/11/2023 16:07:59 CB-25-6-05/2023 Kand. 18 S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Dan Dalam Perkara Mengenai Seksyen 25(2) dan/atau Jadual Akta Mahkamah Kehakiman 1964; Dan Dalam Perkara Mengenai Peraturan-Peraturan Pegawai Awam (Kelakuan & Tatatertib) (Pindaan 2002) dan Peraturan- Peraturan Lembaga Tatatertib Perkhidmatan Awam 1993; Dan Dalam Perkara Mengenai Pekeliling Perkhidmatan Bilangan 10 Tahun 1995; Dan Dalam Perkara Mengenai Akta Kesihatan Mental 2001; S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 Dan Dalalm Perkara Mengenai Seksyen 7, 8, 9 dan 10 Akta Pencen 1980 ANTARA SUHAI FANDI BIN RAMLI ... PEMOHON (K/P NO. 770325-06-5373) DAN 1. LEMBAGA TATATERTIB PERKHIDMATAN AWAM NEGERI KUMPULAN PELAKSANA (NO. 1) PEJABAT SETIAUSAHA KERAJAAN NEGERI PAHANG 2. LEMBAGA RAYUAN TATATERTIB PERKHIDMATAN AWAM NEGERI, SURUHANJAYA PERKHIDMATAN AWAM NEGERI PAHANG 3. KERAJAAN NEGERI PAHANG ... RESPONDEN- RESPONDEN S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 ALASAN PENGHAKIMAN Pendahuluan [1] Ini adalah satu permohonan semakan kehakiman yang dikemukakan oleh Pemohon ekoran daripada keputusan Suruhanjaya Perkhidmatan Awam Negeri Pahang yang menolak rayuan terhadap hukuman tatatertib iaitu buang kerja. Ini telah dimaklumkan kepada Pemohon melalui surat bertarikh 27.02.2023. [2] Kebenaran untuk mengemukakan permohonan semakan kehakiman ini telah diberikan oleh mahkamah ini pada 20.06.2023. Dalam permohonan kebenaran tersebut Responden tidak mengemukakan sebarang bantahan. [3] Pemohon dalam affidavit sokongannya telah menyatakan bahawa dia telah dikenakan dengan dua pertuduhan tindakan tatatertib melalui surat bertarikh 05.09.2022 di bawah Peraturan 42 Peraturan- peraturan Pegawai Awam (Kelakuan dan Tatatertib) (Pahang) 2015 atas pertuduhan-pertuduhan seperti berikut: S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 [4] Lembaga Tatatertib Perkhidmatan Awam Negeri Kumpulan Pelaksana (No. 1) Pejabat Setiausaha Kerajaan Pahang dalam mesyuaratnya yang Ke-122 pada 11.11.2022 telah memutuskan Pemohon bersalah di atas pertuduhan-pertuduhan tersebut. Ini dimaklumkan melalui surat bertarikh 11.11.2022. Dalam surat tersebut juga dinyatakan bahawa Perayu boleh mengemukakan rayuan kepada Lembaga Rayuan Tatatertib Perkhidmatan Awam Negeri di Suruhanjaya Perkhidmatan Awam Negeri Pahang dalam tempoh 14 S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 hari daripada tarikh surat tersebut. Pemohon telah mengemukakan rayuan melalui surat bertarikh 20.12.2022 kepada Pengerusi Lembaga Rayuan Tatatertib Perkhidmatan Awam Negeri Suruhanjaya Perkhidmatan Awam Negeri Pahang. Dalam rayuan tersebut dinyatakan bahawa Pemohon merayu terhadap hukuman buang kerja bagi pertuduhan-pertuduhan yang dikenakan ke atasnya. Pemohon menyatakan bahawa ketidakhadirannya bertugas adalah disebabkan masalah kesihatan. Ini juga telah dinyatakan dalam surat representasi kepada Pengerusi Lembaga Rayuan Tatatertib bertarikh 22.09.2022 yang menyatakan bahawa masalah kesihatan yang dihadapi ialah kemurungan dan depresi sekitar awal tahun 2022. Pemohon tidak mendapatkan rawatan lanjut di Jabatan Psikiatri Hospital Temerloh telah cuba mendapatkan rawatan tradisional dan rawatan Islam bagi mengatasi masalah kemurungan dan depresi tersebut. Disebabkan kemurungan dan depresi tersebut Pemohon tidak berupaya untuk memberikan perkhidmatan yang sewajarnya sebagai penjawat awam seperti sebelum ini. Oleh yang demikian beliau gagal mengimbas cap jari masuk dan keluar tugas akibat masalah kesihatan tersebut. Pemohon juga menyatakan beliau terlibat dalam kemalangan jalan raya pada 14.05.2022. [5] Pada 27.02.2023 Suruhanjaya Perkhidmatan Awam Negeri Pahang telah memaklumkan keputusan rayuan Pemohon terhadap keputusan Lembaga Rayuan Tatatertib yang memutuskan supaya Perayu dibuang kerja sebagaimana peruntukan di bawah sub peraturan 47 (g) Peraturan-peraturan Pegawai Awam (Kelakuan dan Tatatertib) S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 (Pahang) 2015 berkuat kuasa pada 25.11.2022. Lembaga Rayuan Tatatertib telah menolak rayuan Pemohon. [6] Responden dalam affidavit jawapannya yang diikrarkan oleh Norbaiti Hanum binti Hedzir menyatakan bahawa semasa tindakan pentadbiran diambil ke atas Pemohon, Pemohon tidak pernah sama sekali menyatakan mengenai masalah kemurungan dan depresi yang dihadapinya. Pemohon melalui suratnya bertarikh 23.3.2022 hanya menyatakan bahawa dia tidak dapat hadir ke pejabat pada bulan Januari dan Februari disebabkan oleh rekod nombor telefon sudah hilang dan tidak dapat digunakan untuk log masuk Sistem HRMIS. Ini telah dinyatakan di perenggan 8 B affidavit Norbaiti. [7] Responden juga menyatakan dalam affidavit yang sama bahawa pemakluman berkenaan rawatan yang diperolehi oleh Pemohon di Kilinik Pakar Jabatan dan Kesihatan Mental Hospital Temerloh menunjukkan bahawa dia hadir ke hospital tersebut pada tarikh 19.12.2022 selepas Pemohon membuat representasi. Hujahan Pemohon [8] Penelitian kepada hujahan bertulis yang dikemukakan oleh Pemohon adalah didapati bahawa salah satu sebab mengapa mahkamah ini sewajarnya membenarkan permohonan ini ialah terdapatnya ketidakpatuhan Responden-Responden apabila tidak mengikut Peraturan 37 (5) Peraturan-peraturan Pegawai Awam (Kelakuan dan Tatatertib) Pindaan 2002. Peraturan 37 (5) Peraturan- S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 peraturan Pegawai Awam (Kelakuan dan Tatatertib) Pindaan 2002 memperuntukkan seperti berikut: “37 (5) Jika Pihak Berkuasa Tatatertib yang berkenaan berpendapat bahawa kes terhadap pegawai itu menghendaki penjelasan lanjut, Pihak Berkuasa Tatatertib boleh menubuhkan suatu Jawatankuasa Penyiasatan bagi maksud mendapatkan penjelasan lanjut sedemikian.” [9] Selain daripada itu Pemohon juga menyatakan bahawa keputusan Lembaga Rayuan Tatatertib dalam kes ini adalah tidak munasabah, tidak sah terdapatnya ketidakpatuhan prosedur yang membawa maksud tiadanya pematuhan kepada prinsip keadilan asasi atau gagal mematuhi prosedur yang ada. Pemohon telah menukilkan kes Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. [10] Pemohon menyatakan bahawa Peraturan 37 (5) Peraturan- Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993 menghendaki supaya satu jawatankuasa ditubuhkan. Kegagalan penubuhan jawatankuasa tersebut menyebabkan Pemohon telah dinafikan haknya untuk mengemukakan keterangan-keterangan di hadapan jawatankuasa tersebut. Pemohon juga menyatakan bahawa hukuman yang dikenakan atas kesalahan yang dilakukan oleh Pemohon adalah tidak setimpal dengan kesalahan yang dilakukan. S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 Hujahan Pihak Responden [11] Responden berhujah bahawa Responden telah mengambil tindakan yang sewajarnya dan mematuhi prosedur yang dikehendaki di bawah Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993 tersebut sebelum memutuskan bahawa Pemohon dibuang kerja. Oleh itu tidak ditimbul isu ketidakpatuhan, ketidaksahan dan ketidakmunasabahan keputusan Responden yang perlu kepada semakan kehakiman. Selayang pandang undang-undang berkaitan dengan semakan kehakiman [12] MP Jain di dalam bukunya Administrative Law of Malaysia and Singapore (3rd Edition) telah merumuskan ujian ketidakmunasabahan di dalam Wednesbury seperti berikut di halaman 476: “As explained by Lord Greene, the test of unreasonable is not what the court thinks is reasonable, but unreasonable here is ‘something so absurd’ that no reasonable or sensible person could have come to that decision.” [13] Seterusnya di dalam kes CCSU v Minister for the Civil Service (Lord Diplock) (1984) 3 All ER 935 Lord Diplock telah menggunakan frasa ‘irrationality’ dan menghubungkannya dengan ‘unreasonable’ yang dinyatakan dalam Wednesbury seperti berikut: S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 “By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’ (see Associated Provincial Picture Houses Ltd v Wednesbury Corp (1974) 2 All ER 680, (1948) 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court’s exercise of this role, resort I think is today no longer needed to Viscount Radcliffe’s ingenious explanation in Edwards (Inspector of Taxed) v Bairstow (1955) 3 All ER 48, (1956) AC 14 of irrationality as a ground for a court’s reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. ‘Irrationality’ by now can stand on its own feet as an accepted ground on which a decision may be attacked by judicial review’.” [14] Apa yang jelas bahawa ketidakmunasabahan adalah merujuk kepada suatu tindakan atau syarat tidak akan dikenakan oleh seseorang atau tribunal yang munasabah dalam membuat syarat atau peraturan tertentu. Contohnya, Mahkamah Agong di dalam kes Chai Choon Hon v Ketua Polis Daerah Kampar and Government of Malaysia (1986) 2 MLJ 203 telah memutuskan bahawa syarat menghadkan bilangan penceramah bagi kebenaran mengadakan S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 Majlis Tarian Singa dan Makan Malam telah diputuskan sebagai tidak munasabah. [15] Kini terdapat pandangan yang menarik berkenaan dengan ujian dalam kes Wednesbury (supra) tersebut yang diutarakan oleh Profesor Madya Adam Perry Profesor Undang-undang di University Oxford dalam artikelnya bertajuk Wednesbury Unreasonableness The Cambridge Law Journal 2023 1 yang menyatakan seperti berikut: “Unreasonableness is a notoriously obscure standard. For decades, courts have struggled to explain it clearly. Progress is possible, however. Drawing on courts' decisions, we can assemble various self-evident truths about unreasonableness. Unreasonableness is (1) concerned with the balance of reasons; (2) a high standard; (3) not a form of merits review; (4) context-dependent; (5) evidence- dependent; (6) prima facie justified; and (7) indicated by various factors including inconsistency, oppressiveness, incoherence and the absence of stated reasons. A good analysis of unreasonableness will account for all these truths, but existing analyses fail this test. Gardner's analysis does not explain why unreasonableness is a high standard. Dindjer's does not explain why it is a less demanding form of review that merits review, or why it is prima facie justified. Perry's does not explain why it is evidence-dependent. By contrast, my analysis - that unreasonableness is just demonstrable wrongness - accounts for all we know about the standard.” S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 [16] Mahkamah juga perlu mengambil kira garis panduan yang diberikan oleh Mahkamah Rayuan mengenai apakah yang boleh dibuat semasa permohonan semakan kehakiman dalam kes Syarikat Kenderaan Melayu Kelantan Bhd. v. Transport Workers Union [1995] 2 CLJ 748 seperti berikut: “In my judgment, the true principle may be stated as follows. An inferior tribunal or other decision making authority, whether exercising a quasi-judicial function or purely an administrative function has no jurisdiction to commit an error of law. Henceforth, it is no longer of concern whether the error of law is jurisdictional or not. If an inferior tribunal or other public decision taker does make such an error, then he exceeds his jurisdiction. So too is jurisdiction exceeded where resort is had to an unfair procedure (see Raja Abdul Malek v. Setiausaha Suruhanjaya Pasukan Polis [1995] 1 CLJ 619), or where the decision reached is unreasonable, in the sense that no reasonable tribunal similarly circumstanced would have arrived at the impugned decision. It is neither feasible nor desirable to attempt an exhaustive definition of what amounts to an error of law for the categories of such an error are not closed. But it may be safely said that an error of law would be disclosed if the decision-maker asks himself the wrong question or takes into account irrelevant considerations or omits to take into account relevant considerations (what may be conveniently termed an Anisminic error) or if he miscontrues the terms of any relevant statute, or misapplies or mis-states a principle of the general law.” [17] Mahkamah juga terikat dengan keputusan Mahkamah Persekutuan berkenaan dengan tanggungjawab Mahkamah yang mendengar semakan kehakiman seperti yang dinyatakan dalam kes S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 seperti berikut: “Having regard to the breadth of the provisions of para 1 of the Schedule to the Courts of Judicature Act 1964, it would be wrong to assume that the extent of the power of the courts in Malaysia in the field of Public Law remedies is limited in the same manner as that of the courts in the United Kingdom, where there are no such equivalent provisions. This is a point which was not addressed in Pahang Omnibus, Tanjong Jaga, Hotel Equatorial or Dreamland. The need for such a wider power is illustrated by the case of Chief Constable of North Wales Police v Evans where the House of Lords was struggling to mould the remedy to suit the justice of the case. In the event, the House granted a declaration to protect the probationary constable financially for the Chief Constable's breach of the rules of natural justice. Needless to say, if, as appears to be the case, this wider power is enjoyed by our courts, the decision whether to exercise it, and if so, in what manner, are matters which call for the utmost care and circumspection, strict regard being had to the subject matter, the nature of the impugned decision and other relevant discretionary factors. A flexible test whose content will be governed by all the circumstances of the particular case will have to be applied. For example, where policy considerations are involved in administrative decisions and courts do not possess knowledge of the policy considerations which underlie such decisions, courts ought not to review the reasoning of the administrative body, with a view to substituting their own opinion on the basis of what they consider to be fair and reasonable on the merits, for to do so would amount to a usurpation of power on the part of the courts. On the other hand, having regard to the rapidly developing law in applications for Judicial Review, whenever legally S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 permissible, we must demonstrate a willingness to mould the remedies available to suit the justice of the case. It is with the above principles in mind that I approach the question of the appropriate remedies which should be Awarded to the Employee in this case. To recapitulate, we had, in the first place, concluded that the Employee's dismissal was without just cause or excuse. As it is necessary to spell out the consequences of this conclusion so that it is clear to the parties what their respective rights and obligations are, we must, go further, to consider what other reliefs should be Awarded to the Employee. Like Lord Bridge in Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155 at p 1165, I have no doubt that this court has the power to grant an order of mandamus requiring the Employer to reinstate the Employee. However, for the reasons indicated by the Chief Justice in his judgment, this will not be possible. In order to protect the Employee financially, I would therefore go on to add that by reason of his wrongful dismissal aforesaid, he has thereby become entitled to all rights and remedies, not including reinstatement, according to law. Next, it is necessary to spell out what these rights and remedies are. I would say that the Employee is entitled to all moneys due to him in respect of his salary and all other emoluments, under his contract of service, as from the date of his invalid dismissal, until his retirement, had he not been wrongfully dismissed. I have carefully considered the question whether this Court should remit the case to the Industrial Court to determine the monetary compensation to be paid by the Employer to the Employee, which will, in essence, involve a simple arithmetical calculation but will also lead to unnecessary prolongation of proceedings involving inevitable delay and S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 increased expenditure, in what has already been a long drawn out litigation with consequent hardship to the Employee who is now getting on in age. All the material evidence for the purpose of assessing the monetary compensation payable would appear to be before us. Indeed, there was no suggestion to the contrary, by Dr Das, learned counsel for the Employer. It must be remembered that we are here concerned with an appeal which arises from Judicial Review proceedings whose target was an Award of the Industrial Court, an inferior court, and not an administrative decision by bodies or persons who are charged with the performance of public acts or duties. It cannot be said, therefore, that by intervening in the manner which we propose to do, we would be trespassing into the domain of the executive, thus violating the doctrine of the separation of powers, and so acting undemocratically.” [18] Mahkamah juga meneliti keputusan Mahkamah Persekutuan dalam kes Akira Sales & Services (M) Sdn Bhd v Nadiah Zee Bt Abdullah And Another Appeal [2018] 2 MLJ 537 di mana dinyatakan seperti berikut semasa meneliti award Pengerusi Mahkamah Perusahaan dengan menyatakan seperti berikut: “[47] The award of the IC could be reviewed for substance as well as for process. In the instant case, the IC had lost sight of the issue when it proceeded to adjudicate on CBT instead of misconduct in employment. And when it proceeded to adjudicate on CBT instead of misconduct in employment, the IC acted without jurisdiction, took into account an irrelevant matter, namely CBT, but failed to take into account the S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 relevant matter of evidence of misconduct and the complaint. As said, the complaint was that the respondents opened and operated the Perwira account without the authority of the company. The respondents did not deny that they opened and operated the Perwira account and that they deposited the money of the company into the Perwira account. The respondents explained that they did so to prevent the transfer of the company’s funds to Singapore. But it was not appreciated that what the respondents had done was to put funds of the company in their absolute control and beyond the reach of the company. The respondents might have been directors/minority shareholders of the company. But it was in their capacity as employees that the respondents had the day to day management of the company. And as employees with day to day management of the company, was it right for the respondents to put funds of the company in their absolute control and beyond the reach and control of the company? Would that behaviour not warrant dismissal? It must surely be that an employee who puts funds of his employer beyond the reach and control of his employer warrants dismissal. Any reasonable tribunal would find that the dismissal of the respondents was with just cause.” Penilaian [19] Dalam kes ini keterangan yang dinyatakan dalam affidavit- affidavit pihak-pihak telah mengesahkan bahawa Pemohon adalah S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 seorang pegawai perkhidmatan awam negeri Pahang. Oleh yang demikian dalam hal ini mahkamah perlu merujuk kepada Peraturan- Peraturan Pegawai Awam (Kelakuan Dan Tatatertib) (Pahang) 2015 [Phg.P.U.30]. Ini adalah disebabkan di dalam tafsiran peraturan tersebut dinyatakan bagi pegawai ertinya seorang anggota perkhidmatan awam negeri Pahang dan pemakaiannya dinyatakan seperti berikut: “Pemakaian 2. Peraturan-Peraturan in hendaklah terpakai bagi seseorang pegawai di sepanjang tempoh perkhidmatannya dan, berkenaan dengan seseorang pegawai yang tidak memilih untuk memasuki Sistem Saraan Baru, hendaklah terpakai dengan apa-apa ubahsuaian yang perlu dan wajar dengan mengambil kira terma dan syarat perkhidmatannya.” [20] Persoalannya ialah adakah Peraturan-Peraturan Pegawai Awam (Kelakuan Dan Tatatertib) 1993 [P.U.(A) 395/1993] terpakai dalam kes ini terhadap Pemohon. Bagi menjawab persoalan ini mahkamah merujuk kepada Peraturan 65 Peraturan-Peraturan Pegawai Awam (Kelakuan Dan Tatatertib) (Pahang) 2015 yang memperuntukkan seperti berikut: “Pemberhentian pemakaian dan peralihan 65. (1) Perintah-perintah Pegawai Awam (Kelakuan dan Tatatertib) 1993 [P.U.(A) 395/1993], yang disebut sebagai S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 "Perintah-perintah dimansuh" adalah dengan ini terhenti pemakaiannya bagi negeri Pahang.” [21] Adakah kegagalan penubuhan jawatankuasa siasatan adalah sesuatu yang menjadikan keputusan oleh jawatankuasa tersebut tersebut adalah tidak teratur dan memerlukan kepada semakan kehakiman? Jika diteliti kepada Peraturan-Peraturan Pegawai Awam (Kelakuan Dan Tatatertib) (Pahang) 2015 terdapat peruntukan di bawah Peraturan 42 (5), 43 dan 44 Peraturan-Peraturan Pegawai Awam (Kelakuan Dan Tatatertib) (Pahang) 2015 berkenaan dengan penubuhan jawatankuasa: “Prosedur dalam kes tatatertib dengan tujuan buang kerja atau turun pangkat (5) Jika Pihak Berkuasa Tatatertib yang berkenaan berpendapat bahawa kes terhadap pegawai itu menghendaki penjelasan lanjut, Pihak Berkuasa Tatatertib boleh menubuhkan suatu Jawatankuasa Penyiasatan bagi maksud mendapatkan penjelasan lanjut sedemikian. Jawatankuasa Penyiasatan 43. (1) Jawatankuasa Penyiasatan hendaklah terdiri daripada tidak kurang daripada dua orang pegawai. (2) Anggota-anggota Jawatankuasa Penyiasatan hendaklah berpangkat lebih tinggi daripada pegawai yang disiasat itu tetapi Ketua Jabatan pegawai yang disiasat itu tidak boleh menjadi anggota Jawatankuasa Penyiasatan. S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 Prosedur yang hendaklah diikuti oleh Jawatankuasa Penyiasatan 44. (1) Jawatankuasa Penyiasatan— (a) hendaklah memberitahu pegawai yang disiasat itu tarikh persoalan mengenai pembuangan kerja atau penurunan pangkatnya akan dibawa di hadapan Jawatankuasa Penyiasatan; dan (b) boleh memanggil dan memeriksa mana-mana saksi atau mengambil apa-apa tindakan sebagaimana yang difikirkan perlu atau patut oleh Jawatankuasa Penyiasatan untuk mendapatkan penjelasan lanjut mengenai kes itu. (2) Jika Jawatankuasa Penyiasatan berpandangan bahawa pegawai itu patut dibenarkan hadir di hadapan Jawatankuasa Penyiasatan untuk membersihkan dirinya, pegawai itu hendaklah menghadirkan dirinya di hadapan Jawatankuasa itu bagi maksud itu. (3) Jika saksi-saksi telah dipanggil dan diperiksa oleh Jawatankuasa Penyiasatan, pegawai itu hendaklah diberi peluang untuk hadir dan untuk menyoal balas saksi-saksi bagi pihak dirinya. (4) Tiada keterangan dokumentar boleh digunakan terhadap seseorang pegawai melainkan jika pegawai itu telah sebelum itu S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 dibekali dengan satu salinan keterangan itu atau telah diberi akses kepada keterangan itu. (5) Jawatankuasa Penyiasatan boleh membenarkan Kerajaan atau pegawai itu diwakili oleh seorang pegawai perkhidmatan awam atau, dalam hal yang luar biasa, oleh seorang peguam bela dan peguam cara, tetapi Jawatankuasa Penyiasatan boleh menarik balik kebenaran itu tertakluk kepada apa-apa penangguhan yang munasabah dan perlu bagi membolehkan pegawai itu untuk membentangkan kesnya sendiri. (6) Jika Jawatankuasa Penyiasatan membenarkan Kerajaan diwakili, Jawatankuasa Penyiasatan hendaklah juga membenarkan pegawai yang disiasat itu diwakili dengan cara yang sama. (7) Jika pegawai yang disiasat yang dikehendaki hadir di hadapan Jawatankuasa Penyiasatan tidak hadir pada tarikh dan masa yang ditetapkan dan jika tiada alasan yang mencukupi diberikan bagi penangguhan itu, Jawatankuasa Penyiasatan boleh terus menimbangkan dan membuat keputusan tentang aduan itu atau boleh menangguhkan prosiding itu ke suatu tarikh yang lain. (8) Setelah tamat penyiasatannya, Jawatankuasa Penyiasatan hendaklah mengemukakan suatu laporan tentang penyiasatan itu kepada Pihak Berkuasa Tatatertib yang berkenaan. S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 (9) Jika Pihak Berkuasa Tatatertib yang berkenaan berpendapat bahawa laporan yang dikemukakan kepadanya di bawah subperaturan (8) tidak jelas tentang perkara-perkara tertentu atau bahawa penyiasatan lanjut adalah perlu, Pihak Berkuasa Tatatertib yang berkenaan boleh merujukkan perkara itu semula kepada Jawatankuasa Penyiasatan bagi penyiasatan lanjut.” [22] Peguam Pemohon yang bijaksana telah merujuk kes Abdul Ghani Che Mat v Pengerusi Suruhanjaya Pasukan Polis & Ors [2016] MLJU 1062 dan berhujah bahawa jawatankuasa penyiasatan adalah diputuskan dlaam kes tersebut oleh Mahkamah Rayuan ia diperlukan seperti berikut: “[52] In our view, fairness dictates that an Investigation Committee ought have been established pursuant to Regulation 37(5) in order that a neutral report could be prepared to assist the disciplinary authority in coming to a decision on such serious matter as the dismissal of a public officer. We do not think the case against the appellant was a clear cut case of guilt and therefore fit for summary dismissal under Regulation 37(4).” [23] Penelitian kepada kes Abdul Ghani Che Mat (supra) mendapati bahawa keadaan dalam kes tersebut menyebabkan Mahkamah Rayuan berpendapat perlunya diadakan jawatankuasa siasatan. Ini dapat dilihat di perenggan 47 yang menyatakan seperti berikut: S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 “[47] Applying the law as laid down by the Federal Court in Yusof Sudin and Tay Chai Huat to the facts of the present case, the question is whether the circumstances facing the disciplinary authority called for an oral hearing, which was requested for by the appellant. On the factual matrix of the case, we must say at the outset that an oral hearing was called for. Here was a case where the disciplinary authority was faced with two conflicting sets of fact, documents and evidence, that is the investigation report and the appellant’s representation letter which was exculpatory in nature.” [24] Mahkamah juga meneliti keputusan Mahkamah Persekutuan dalam kes Public Services Commission Malaysia & Anor v. Vickneswary Rm Santhivelu [2008] 6 CLJ 573 berkenaan dengan keputusan untuk merujuk atau menubuhkan jawatankuasa siasatan. Peruntukan di bawah Peraturan 42(5) tersebut adalah pari materia dengan peraturan 37 (5) Peraturan-Peraturan Pegawai Awam (Kelakuan Dan Tatatertib) 1993. Penelitian kepada kes Mahkamah Persekutuan dan Mahkamah Rayuan tersebut adalah didapati bahawa penubuhan jawatankuasa penyiasatan adalah bidang kuasa jawatankuasa tatatertib. Sekiranya terdapat keadaan yang memerlukan jawatankuasa penyiasatan itu ditubuhkan. Ia boleh dilakukan setelah jawatankuasa tatertib menerima representasi daripada Pemohon dan berpendapat bahawa terdapat keterangan yang berbeza di antara Pemohon dan Responden sehingga memerlukan penyiasatan lanjut. Jika ini berlaku jawatankuasa penyiasatan tersebut wajar ditubuhkan oleh jawatankuasa tatatertib. Mahkamah ini berpendapat pertimbangan S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 untuk mewujudkan jawatankuasa penyiasatan itu adalah tertakluk kepada bidang kuasa jawatankuasa tatatertib. [25] Walau bagaimanapun dalam kes ini mahkamah perlu melihat sama ada ketiadaan jawatankuasa penyiasatan tersebut yang diputuskan oleh jawatankuasa tatatertib adalah sesuatu yang teratur atau tidak. Sekiranya mahkamah mendapati wajar ditubuhkan jawatankuasa penyiasatan dan ia tidak ditubuhkan oleh jawatankuasa tatatertib dengan mengambil kira fakta dan keterangan di dalam kes ini maka suatu semakan kehakiman wajar dilakukan. Dalam kes ini pertuduhan yang dikenakan kepada Pemohon adalah berkaitan ketidakhadiran Pemohon bertugas tanpa sebarang kebenaran. Ia adalah suatu yang jelas berdasarkan kepada keterangan-keterangan berkenaan dengan bukti kehadiran, rekod kedatangan dan butiran pengecaman cap jari pada mesin perakam waktu. Malahan dalam surat representasi yang dikemukakan kepada pihak jawatankuasa tatatertib tidak ditimbulkan bantahan berkenaan fakta ketidakhadiran Pemohon bertugas seperti yang dinyatakan dalam dua pertuduhan yang dikenakan kepada Pemohon. [26] Oleh itu tiada sebarang percanggahan fakta yang memerlukan suatu jawatankuasa siasatan ditubuhkan. Oleh itu mahkamah ini berpendapat keputusan jawatankuasa tatatertib tidak menubuhkan jawatankuasa siasatan adalah di dalam ruang lingkup bidang kuasa jawatankuasa tatatertib. Ia telah dilakukan dengan sewajarnya oleh jawatankuasa tatatertib berdasarkan kepada fakta dan keterangan dalam kes ini. Ianya adalah berbeza sekiranya terdapat keterangan dan S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 fakta dalam kes ini yang menimbulkan percanggahan di antara keterangan Pemohon dan Responden sehingga memerlukan penyiasatan bebas dilakukan oleh jawatankuasa siasatan. Namun ia tidak berlaku sedemikian dalam kes ini. [27] Pada masa yang sama mahkamah juga mendapati bahawa isu berkenaan masalah kesihatan yang dialami oleh Pemohon hanya timbul selepas daripada pertuduhan-pertuduhan tersebut dikemukakan kepada Pemohon. Ia juga disokong oleh dokumen-dokumen yang dikeluarkan oleh pegawai perubatan bersama-sama dengan rekod rawatan dalam laporan perubatan. Walau bagaimanapun mahkamah juga mengambil perhatian kepada surat rujukan yang disediakan oleh Klinik Paramedik berkenaan dengan kesihatan Pemohon yang bertarikh 18.03.2022 yang dikepilkan bersama-sama dengan surat representasi bertulis pada 22.09.2022. Surat daripada Klinik Paramedik tersebut menunjukkan masalah kesihatan yang dihadapi oleh Pemohon adalah lebih awal daripada tarikh pertuduhan dikemukakan terhadap Pemohon. Peluang Pemohon mengemukakan rayuan [28] Mahkamah ini mendapati bahawa dokumen-dokumen tersebut telah dikemukakan dan tiada keterangan yang menunjukkan bahawa ia tidak dipertimbangkan oleh jawatankuasa tatatertib. Ketiadaan jawatankuasa siasatan tidak akan menyebabkan jawatankuasa tatatertib tidak boleh membuat keputusan yang sewajarnya S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 berdasarkan dokumen-dokumen yang dikemukakan oleh Pemohon berkenaan dengan keadaan kesihatannya. [29] Peguam Pemohon yang bijaksana telah membangkitkan isu bahawa jawatankuasa tatatertib dan juga jawatankuasa rayuan telah tidak ditunjukkan memberi peluang kepada Pemohon untuk mengemukakan rayuan. Ia adalah suatu hak yang sepatutnya diberikan oleh Responden. Peguam Pemohon yang bijaksana telah menukilkan kes Nazrul Imran Mohd Nor v Civil Service Commission Malaysia & Anor [2021] 10 CLJ 737 seperti berikut: “[87] In addition, the right to mitigate before sentencing is a right well- established. The right to mitigate is now trite and fundamental as it has been accepted that sentence should not be meted out unless the person concerned is heard. This is an issue of fairness to be accorded to a person before sentencing. Especially when the disciplinary action taken, as earlier stated, was with the view to dismissing him or to reduce his rank. Had the right to mitigate been afforded, there is always the possibility that he might not be dismissed from service. The fact is before the sentence to dismiss him was made, he was not asked to mitigate. Rightly, the decision of the first respondent ought not to stand based on this reason too. Thus, even if it may be right to maintain that an inferior tribunal has the right to sentence as it wishes, before that right is exercised, the person facing that tribunal must be given the right to mitigate.” S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 [30] Berhubung dengan hal ini mahkamah meneliti affidavit jawapan dan affidavit sokongan oleh Responden dan Pemohon bagi meneliti sama ada Pemohon telah diberikan haknya untuk mengemukakan rayuan peringanan hukuman di atas pertuduhan yang dikenakan ke atasnya. Ini ditambah pula dengan hukuman yang dikenakan oleh Responden adalah buang kerja. Ia memberi kesan kepada kehidupan dan kelangsungan hidup Pemohon dalam kes ini. Dalam affidavit sokongan Pemohon adalah didapati bahawa terdapat satu surat representasi kepada Pengerusi Lembaga Tatatertib bertarikh 22.09.2022 yang ditandakan sebagai eksibit D. Begitu juga terdapat surat rayuan terhadap keputusan Lembaga Tatatertib yang ditulis oleh Pemohon bertarikh 20.12.2022. Dalam surat tersebut juga telah dibuat rujukan silang kepada surat yang terdahulu iaitu surat bertarikh 05.09.2022 yang sebenarnya surat tersebut bertarikh 20.09.2022 iaitu eksibit D dalam affidavit Pemohon. Mahkamah juga meneliti eksibit D affidavit sokongan Pemohon iaitu surat daripada Pengerusi Lembaga Rayuan Tatatertib Perkhidmatan Awam Negeri Pahang bertarikh 27.02.2023. Dalam surat tersebut diawalnya telah dinyatakan seperti berikut: Dengan hormatnya rayuan tuan bertarikh 20 Disember 2022 adalah dirujuk. Penelitian kepada surat representasi tersebut menunjukkan dokumen- dokumen rawatan perubatan dan laporan perbuatan telah dilampirkan untuk pertimbangan Lembaga Rayuan Tatatertib Perkhidmatan Awam Negeri Pahang. S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 [31] Mahkamah ini berpendapat dengan surat daripada Lembaga Rayuan tersebut menggambarkan bahawa rayuan Pemohon melalui surat 22.09.2022 dan 20.122022 telah diberikan pertimbangan yang sewajarnya oleh Responden. Rayuan yang dikemukakan dalam surat representasi tersebut adalah berkaitan dengan masalah kesihatan dan rawatan serta kemurungan yang dihadapi oleh Pemohon. Mahkamah berpendapat dengan ketiadaan peluang untuk membuat representasi lisan tidak akan menjejaskan Pemohon. Ini adalah disebabkan kesemua surat representasi berdasarkan dokumen-dokumen yang dikemukakan dalam semakan kehakiman ini menunjukkan bahawa representasi tersebut telah dipertimbangkan dengan sewajarnya oleh Responden. Di samping itu kesalahan yang dilakukan oleh Pemohon juga adalah sesuatu yang jelas berdasarkan kepada dokumen- dokumen kehadiran dan rekod perakam waktu yang telah dimaklumkan kepada Pemohon dalam surat pertuduhan. Apa yang jelas ialah penelitian kepada surat pertuduhan mendapati bahawa Pemohon tidak hadir bertugas kesemuanya selama 49 hari tanpa alasan munasabah dan 13 kali tidak mengimbas jari perakam waktu. [32] Secara pebandingan jika dilihat kepada kes Nazrul Imran Mohd Nor v Civil Service Commission Malaysia & Anor (supra) fakta kes menunjukkan kesalahan yang melibatkan Perayu dalam kes tersebut ialah kenyataan yang dikatakan telah mencemarkan kerajaan. Ia dapat dilihat di perenggan 71 hingga 78, terutamanya di perenggan 76 seperti berikut: S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 [71] Thus, it is incumbent to determine whether the appellant's statement ie, "Kesian. Hilang kwn, hilang deposit" had contravened the above provisions. [72] First, it should be remembered, as explained earlier, not only the process of arriving at the decision that the first respondent did is subject to review but the merits of that decision may also be subjected to scrutiny. [73] Second, as pointed out, the first respondent did not give any reason why it had rejected the representation made by the appellant. Without reasons, the representation should be reviewed in this appeal to determine the effect of the appellant's statement as it is said to be in contravention of the statutory provisions. [74] Therefore, it is important to always note these two points when we embark in determining whether the comments itself had contravened the above provisions. [75] Thus, is the statement "Kesian. Hilang kwn, hilang deposit", a statement which may embarrass or bring disrepute to the Government within the provisions of reg. 19(1)(b) of the 1993 Regulations? As translated, could the statement "Pity. Lost a friend, lost the deposit" be an embarrassment or bring disrepute to the Government? S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 [76] In our view, even if the statement was to be taken as a whole it could not be an embarrassment or disrepute to the Government itself because; (i) it is not only too short but more importantly, too cryptic; (ii) different groups of people may interpret the statement differently; and (iii) the Government itself could not possibly be affected by the statement. [77] With regard to the three reasons above, first the statement made is too short to suggest that it may have the effect of embarrassing the Government or bringing disrepute to it. With respect, it is too brief to be able to have that negative effect. It is difficult to appreciate how the statement, consisting of those few words could be an embarrassment or bring disrepute to the Government. It is noteworthy that the concern here is with regard to a Government. A Government by normal standards is a substantial entity. The short cryptic statement by the appellant consisting of the words used could not possibly cause any embarrassment or bring disrepute to an entity the likes of a Government. [78] The comments are too general to be able to attract any specific meaning. The statement itself is cryptic. The statement as worded can itself give rise to many connotations and shades of meaning. To some, taken literally, it may S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 appear to have no meaning. After all, what has a friend got to do with a deposit? In this regard the benefit of the doubt should be given to the appellant. As explain earlier, he asserted he had no intention to tarnish the image of the Malaysian Government. In any event, the image of the Government itself could not possibly be affected by such a cryptic and inconsequential statement.” [33] Oleh itu pada hemat mahkamah ketiadaan representasi lisan dan hanya representasi bertulis yang dipertimbangkan oleh Responden tidak mewajarkan mahkamah ini membuat dapatan bahawa keputusan jawatankuasa tatatertib dan jawatankuasa rayuan tatatertib adalah suatu yang tidak setimpal atau tidak wajar sekiranya dibandingkan dengan pertuduhan yang dikemukakan kepada Pemohon. [34] Sesungguhnya disiplin seorang pegawai perkhimatan awam adalah sesuatu yang perlu sentiasa diutamakan. Di samping itu sebarang masalah yang dihadapi oleh para penjawat awam seharusnya diselesaikan oleh penjawat awam tersebut melalui mekanisma yang terdapat dalam sistem pengurusan sumber manusia penjawat awam sama ada mendapatkan rawatan perubatan atau menjalani sesi kaunseling yang bersesuaian. Apa yang jelas ialah sebarang ketidakcekapan dan kurangnya disiplin oleh pegawai awam boleh menjejaskan perkhidmatan kepada rakyat yang perlu dipastikan oleh Responden tidak berlaku. Oleh itu tindakan Responden terhadap Pemohon dalam kes ini tidaklah boleh dikatakan tidak setimpal atau berpatutan. Ianya berbeza sekiranya terdapat keterangan yang S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 menunjukkan bahawa Pemohon telah menggunakan mekanisma dalam perkhidmatan awam bagi mengatasi masalah kesihatan dan tekanan perasaan yang dihadapai olehnya tetapi tidak diambil tindakan yang sewajarnya oleh Responden sehingga mengemukakan pertuduhan kepada Pemohon yang berakhir dengan pembuangan kerja Pemohon. Ini tidak ditunjukkan berlaku dalam kes ini. Hukuman [35] Selain daripada itu Pemohon juga menyatakan bahawa hukuman yang dikenakan oleh jawatankuasa tatatertib yang disahkan oleh jawatankuasa rayuan tatatertib adalah sesuatu yang tidak setimpal dengan kesalahan yang dilakukan. Ini adalah disebabkan kesalahan Pemohon hanyalah tidak hadir bertugas. Oleh itu keputusan tersebut adalah suatu yang tidak munasabah dan tidak setimpal serta bercanggah dengan kebebasan asasi. [36] Penelitian kepada surat yang daripada Pengerusi Lembaga Tatatertib Perkhidmatan Awam Negeri Pahang Kumpulan Pelaksana No. 1 bertarikh 05.09.2022 telah dinyatakan bahawa tindakan tatatertib ini adalah dengan tujuan buang kerja atau turun pangkat seperti di bawah Peraturan 42 Peraturan-Peraturan Pegawai Awam (Kelakuan Dan Tatatertib) (Pahang) 2015. Ini bermakna daripada awal Pemohon telah diberi maklum bahawa prosiding tatatertib ini adalah untuk tujuan buang kerja atau turun pangkat. S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 [37] Penelitian kepada Peraturan-Peraturan Pegawai Awam (Kelakuan Dan Tatatertib) (Pahang) 2015 jelas menunjukkan bahawa salah satu hukuman yang boleh dijatuhkan bagi kesalahan tatatertib ialah buang kerja seperti dalam Peraturan 47 seperti berikut: “Jenis hukuman tatatertib 47. Jika seseorang pegawai didapati bersalah atas suatu kesalahan tatatertib, mana-mana satu atau apa-apa gabungan dua atau lebih hukuman yang berikut, bergantung kepada keseriusan kesalahan itu, boleh dikenakan ke atas pegawai itu: (a) amaran; (b) denda; (c) lucut hak emolumen; (d) tangguh pergerakan gaji; (e) turun gaji; (f) turun pangkat; (g) buang kerja.” [38] Persoalan seterusnya adalah adakah mahkamah ini boleh campur tangan dalam hukuman yang telah diputuskan oleh jawatankuasa tatatertib dan jawatankuasa rayuan tersebut. Ini telah dinyatakan dalam kes Ng Hock Cheng v. Pengarah Am Penjara & Ors [1998] 1 CLJ 405 seperti berikut: “The court in truth is not substituting the order of dismissal with its own measure of punishment and if in the latter case, S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 36 it would amount to the court forcing the employer/government to still employ him, or specifically enforcing a contract of personal service. It cannot be denied further that the disciplining of a public officer by his department head, is part of the function of the executive branch of the government and any usurpation by a court will be viewed with something very much more than disfavour even though the judiciary is the judicial branch of the government as well as an institution which belongs to the people. To repeat, a court intervenes only on the nature and manner of accusation against a public officer as distinct from a consequential punishment as explained above.” [39] Dalam kes Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan & Anor. [1996] 2 CLJ 771 yang melalui keputusan majoriti yang telah mengenepikan hukuman buang kerja yang diputuskan oleh jawatankuasa tatatertib. Ini dinyatakan seperti berikut: “In a case like the present, this Court is, for the reasons already given sufficiently empowered to come to its own conclusion on the merits on the case. Taking into account all the relevant facts of the case, including the extenuating factors alluded to by the Maur High Court, I am inclined to agree with the submission of Counsel that the order of dismissal was too severe a punishment to impose upon the S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 37 appellant. In the peculiar circumstances of this case, some lesser punishment ought to have been imposed.” [40] Rasional mengapa mahkamah tidak wajar campur tangan atau menggantikan hukuman yang telah diputuskan oleh jawatankuasa atau badan berkuasa tatatertib perkhidmatan awam telah dinyatakan oleh Mahkamah Persekutuan dalam kes Norizan bin Bakar v Panzana Enterprise Sdn Bhd [2013] 6 MLJ 605 seperti berikut: “[34] This point has been made earlier but deserves to be reiterated. A public officer who wishes to challenge any allegation of misconduct against him for which punishment has been imposed can only do so by challenging it in the High Court by way of judicial review. It is pertinent to note that the said public officer cannot challenge the punishment imposed, but only the allegations preferred against him. This clearly explains why the court must not substitute its own view as to what is the appropriate penalty for public officer's misconduct, for the view of the particular disciplinary committee as rightly held by the minority view in Tan Tek Seng and the Federal Court in Ng Hock Cheng.” [41] Oleh itu dalam kes ini mahkamah berpendapat hukuman yang dijatuhkan oleh Jawatankuasa Tatatertib dan Lembaga Rayuan Tatatertib Perkhidmatan Awam Negeri Suruhanjaya Perkhidmatan Awam Negeri Pahang adalah dalam wewenang dan bidang kuasa serta pertimbangan yang wajar dan munasabah dilakukan oleh Responden. S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 38 Mahkamah ini tidak wajar campur tangan atau mengubah hukuman yang telah diputuskan oleh pihak Responden. Perintah Akhir [42] Semakan kehakiman oleh Pemohon adalah ditolak. Bertarikh: 24hb. November 2023 (ROSLAN BIN MAT NOR) HAKIM MAHKAMAH TINGGI MALAYA TEMERLOH, PAHANG DARUL MAKMUR PIHAK-PIHAK: Bagi Pihak Pemohon M Ramachelvam dan Ameerul Radzi bin Azlan Tetuan Rama-Rozi & Associates Temerloh, Pahang Darul Makmur S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal 39 Bagi Pihak Responden Munirah binti Samsuddin Pejabat Penasihat undang-undang Negeri Pahang Kuantan, Pahang Darul Makmur S/N 9btqIFIYBUaQQryhOIJzQw **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

CB-22NCC-1-05/2023

PLAINTIF JBC FOODS LIMITED DEFENDAN 1. ) CHEONG TENG TENG 2. ) LIEW FUH HAO

Permohonan di bawah seksyen 10 Akta Timbang Tara 2005 - Plaintif dan Defendan telah menyatakan dalam perjanjian persetujuan mengikut undang-undang Hong Kong dan timbang tara kepada Hong Kong International Arbitration Centre - Mahkamah ini tiada bidang kuasa - Permohonan ditolak.

24/11/2023

YA Tuan Roslan bin Mat Nor

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=18e0c64b-d29c-4244-950e-2a0682aef982&Inline=true

Microsoft Word - CB-22NCC-1-05-2023 JBC FOODS LIMITED v CHEONG TENG TENG & 1 LAGI 1 DALAM MAHKAMAH TINGGI MALAYA DI TEMERLOH DALAM NEGERI PAHANG DARUL MAKMUR GUAMAN SIVIL NO: CB-22NCC-1-05/2023 ANTARA JBC FOODS LIMITED … PLAINTIF DAN 1. CHEONG TENG TENG (NO. K/P: 851218-14-6228) [Berniaga dalam nama dan gaya F H Liew Enterprise No. Berdaftar 201103129558 (CT0007943-A)] 2. LIEW FUH HAO (NO. K/P: 850320-14-5235) … DEFENDAN- DEFENDAN ALASAN PENGHAKIMAN Pendahuluan [1] Defendan-Defendan telah membuat permohonan di bawah seksyen 10 Akta Timbang Tara 2005 di baca bersama dengan A. 69 k 10 Kaedah-kaedah Mahkamah (KKM) 2012 dan A. 92 k 4 KKM 24/11/2023 16:03:01 CB-22NCC-1-05/2023 Kand. 40 S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 2012 untuk menggantung prosiding yang melibatkan Plaintif dan Defendan-Defendan bagi merujuk perkara pertikaian di antara mereka kepada timbang tara. [2] Semasa pendengaran permohonan tersebut telah ditimbulkan isu oleh Mahkamah ini sama ada Mahkamah ini mempunyai bidang kuasa untuk mendengar permohonan tersebut bagi memutuskan pertikaian di antara Plaintif dan Defendan-Defendan. Ia tidak dibangkitkan oleh Defendan-Defendan seperti yang diperuntukkan di bawah A. 28 k 3B KKM 2012 yang menyatakan seperti berikut: “3B. Pertikaian bidang kuasa (A. 28 k. 3B) (1) Seorang defendan yang ingin mempertikaikan bidang kuasa Mahkamah dalam prosiding atas sebab apa-apa ketidakteraturan dalam saman pemula atau penyampaian saman pemula itu atau dalam mana-mana perintah yang memberikan kebenaran untuk menyampaikan saman pemula di luar bidang kuasa atau melanjutkan kesahan saman pemula bagi maksud penyampaian atau apa-apa alasan lain hendaklah, dalam dua puluh satu hari selepas penyampaian saman pemula dan afidavit sokongan ke atasnya, memohon kepada Mahkamah untuk- (a) suatu perintah yang mengetepikan saman pemula atau penyampaian saman pemula ke atasnya; (b) suatu perintah yang mengisytiharkan bahawa saman pemula tidak disampaikan kepadanya dengan sempurna; (c) pembatalan apa-apa perintah yang memberikan kebenaran untuk menyampaikan saman pemula ke atasnya di luar bidang kuasa; (d) pembatalan apa-apa perintah yang melanjutkan kesahan saman pemula bagi maksud penyampaian; S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 (e) perlindungan atau pelepasan apa-apa harta defendan yang disita atau diugut dengan penyitaan dalam prosiding; (f) pembatalan mana-mana perintah yang menghalang apa-apa urusan dengan apa-apa harta defendan; (g) suatu pengisytiharan bahawa dalam hal keadaan Mahkamah tidak ada bidang kuasa ke atas defendan berkenaan dengan hal perkara tuntutan atau relief atau remedi yang diminta dalam tindakan itu; atau (h) apa-apa relief lain sebagaimana yang sesuai. (2) Seorang defendan yang ingin menghujahkan bahawa Mahkamah tidak sepatutnya ada bidang kuasa terhadap tindakan bahawa Malaysia bukanlah forum yang sesuai untuk pertikaian hendaklah, dalam dua puluh satu hari selepas penyampaian saman pemula dan afidavit sokongan ke atasnya, memohon kepada Mahkamah untuk suatu perintah menggantungkan prosiding. (3) Suatu permohonan di bawah perenggan (1) atau (2) hendaklah dibuat melalui suatu notis permohonan yang disokong dengan suatu afidavit yang menentusahkan fakta yang ke atasnya permohonan itu diasaskan dan suatu salinan afidavit hendaklah disampaikan dengan notis permohonan. (4) Pada pendengaran suatu permohonan di bawah perenggan (1) atau (2), Mahkamah boleh membuat apa-apa perintah sebagaimana yang difikirkannya patut dan boleh memberikan apa-apa arahan bagi penyelesaian permohonan itu sebagaimana yang sesuai, termasuklah arahan untuk perbicaraan permohonan itu sebagai suatu isu permulaan.” [3] Ia juga tidak dibangkitkan dalam affidavit Defendan-Defendan berkenaan dengan bidang kuasa Mahkamah seperti yang dilakukan dalam kes Pauline Chai Siew Phin v Khoo Kay Peng [2014] 8 CLJ S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 571 apabila Mahkamah Rayuan telah menyatakan bahawa bantahan kepada bidang kuasa Mahkamah boleh diteliti melalui affidavit yang difailkan dan tidak semestinya hanya berpandukan kepada A. 28 k 3B KKM 2012. Ini dinyatakan oleh Mahkamah Rayuan seperti berikut: “[41] But before we elaborate those disputes, we should make known our view that we, with respect, disagree with the contention of the learned counsel for the husband that the wife had submitted to the Malaysian jurisdiction by filing her application only pursuant to O. 28 r. 3B(2) Rules of Court 2012 which reads as follows: A Defendant who wishes to contend that the Court should not assume jurisdiction over the action on the ground that Malaysia is not the proper forum for the dispute shall, within twenty one days after the service of the originating summons and supporting affidavit or affidavits on him, apply to the Court for an order staying the proceedings. It is learned counsel's contention that the application should have been filed pursuant also to O. 28 r. 3B(1) Rules of Court 2012 which states as follows: A Defendant who wishes to dispute the jurisdiction of the Court in the proceedings by reason of any irregularity in the originating summons or service thereof or in any order giving leave to serve the originating summons for the purpose of service or an any ground shall, within twenty one days after the service of the originating summons and supporting affidavit or affidavits on him apply to the Court for: (a) An Order setting aside the originating summons. In view of this omission, it is submitted that the wife by not challenging jurisdiction as provided in O. 28 r. 3B(1) had submitted to it and the only issue left for determination is one of appropriate forum. S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 [42] With respect and even if a wrong rule had been used, the wife should not be penalised. Her intention not to submit to jurisdiction is made crystal clear in her affidavit dated 2 May 2013 where she stated as follow: I wish to make clear that I am not to be understood as having submitted to the jurisdiction of this Honourable Court in making the said application (paragraph 4). I contend that it is the English Courts which have jurisdiction to determine this matter and is the more appropriate forum to decide the issue of jurisdiction (paragraph 5). With such clear declaration by the wife, it would not be proper for us to ignore it. In any event, O. 2 of the Rules of Court 2012 comes into play to save the day so to speak and in our view rightly so as the courts exist to ensure substantive justice is done. Further we cannot see how the husband is prejudiced or taken by surprise by the stand of the wife.” [4] Plaintif dan Defendan-Defendan telah diberikan peluang untuk mengemukakan hujahan masing-masing berkenaan isu bidang kuasa Mahkamah ini bagi mendengar permohonan dan melupuskan kes ini. Pihak Plaintif dan Defendan-Defendan telah sudi untuk mengemukakan hujahan masing-masing berkenaan hal ini bagi membantu Mahkamah untuk memutuskan persoalan bidang kuasa Mahkamah untuk mendengar permohonan ini. [5] Hal ini berbangkit apabila dalam perjanjian di antara Plaintif dan Defendan-Defendan yang menjadi asas kepada tindakan ini terdapat satu terma berkaitan dengan bidang kuasa Mahkamah yang boleh memutuskan pertikaian pihak-pihak. Ia adalah seperti berikut: S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 “6. Law and Arbitration This Agreement shall be governed in all respects by the laws of Hong Kong. Any dispute arising out of or in connection with this Agreement which is not resolved by the parties, including any question regarding its existence, validity, breach or termination, shall be resolved by arbitration In Hong Kong under the Hong Kong International Arbitration Centre Administered Arbitration Rules in force when the notice of arbitration is submitted. There shall be three arbitrators, and the arbitration proceedings shall be conducted in English.” Dan “6. Law and Arbitration This Agreement shall be governed in all respects by the laws of Hong Kong. Any dispute arising out of or in connection with this Agreement which is not resolved by the parties, including any question regarding its existence, validity, breach or termination, shall be resolved by arbitration In Hong Kong under the Hong Kong International Arbitration Centre Administered Arbitration Rules in force when the notice of arbitration is submitted. There shall be three arbitrators, and the arbitration proceedings shall be conducted in English. Because a remedy at law may be inadequate, any party may seek an injunction from any court of competent jurisdiction to S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 restrain any violation or threatened violation of this Agreement or to specifically enforce any provision of this Agreement.” [6] Mahkamah ini berpendapat isu bidang kuasa Mahkamah wajar diputuskan bagi mengelakkan daripada sebarang ketidakaturan dan ketidakesahan sebarang perintah yang diberi kesan daripada pendengaran permohonan ini. Hujahan pihak-pihak berkenaan isu bidang kuasa [7] Peguam Defendan-Defendan dalam hujahannya menyatakan bahawa mahkamah ini tidak mempunyai bidang kuasa untuk mendengar permohonan ini. Rujukan telah dibuat kepada kes Kraken Services Ltd & Anor v. Q Life And Medical Insurance Company Asia Region & Anor [2021] 1 LNS 2602 dan menyatakan bahawa bidang kuasa yang sepatutnya adalah di bawah undang-undang Hong Kong. [8] Sebaliknya peguam Plaintif berhujah bahawa mahkamah ini mempunyai bidang kuasa dengan permohonan ini di bawah seksyen 23 Akta Mahkamah Kehakiman 1964. Analisa [9] Sebelum sesuatu kes didengar oleh Mahkamah adalah penting untuk memastikan bahawa Mahkamah yang mendengar kes tersebut mempunyai bidang kuasa. Dalam konteks ini wajar Mahkamah merujuk S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 kepada penyataan Hakim Thomson dalam kes Lee Lee Cheng (F) v Seow Peng Kwang [1960] 1 MLJ 1 yang menyatakan seperti berikut: “This leads to the view that in the Ordinance there is a distinction between the jurisdiction of a Court and its powers, and this suggests that the word "jurisdiction" is used to denote the types of subject matter which the Court may deal with and in relation to which it may exercise its powers. It cannot exercise its powers in matters over which, by reason of their nature or by reason of extra-territoriality, it has no jurisdiction. On the other hand, in dealing with matters over which it has jurisdiction, it cannot exceed its powers.” [10] Oleh itu penentuan sama ada Mahkamah ini mempunyai bidang kuasa untuk mendengar sesuatu kes adalah asas utama yang perlu diputuskan sebelum melanjutkan proses pendengaran dan perbicaraan dalam sesuatu kes. [11] Dalam konteks Mahkamah Tinggi adalah jelas bahawa peruntukan atau bidang kuasa boleh dikategorikan kepada bidang kuasa asal, bidang kuasa rayuan dan bidang kuasa sedia ada. Perkara 121 Perlembagaan Persekutuan telah memperuntukkan berkenaan dengan kewujudan Mahkamah Tinggi seperti berikut: “(1) There shall be two High Courts of co-ordinate jurisdiction and status, namely— (a) one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry at such place in the States of Malaya as the Yang di-Pertuan Agong may determine; and S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 (b) one in the States of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine; (c) (Repealed) and such inferior courts as may be provided by federal law and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law. (1A) The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts. (1B) There shall be a court which shall be known as the Mahkamah Rayuan (Court of Appeal) and shall have its principal registry at such place as the Yang di-Pertuan Agong may determine, and the Court of Appeal shall have the following jurisdiction, that is to say— (a) jurisdiction to determine appeals from decisions of a High Court or a judge thereof (except decisions of a High Court given by a registrar or other officer of the Court and appealable under federal law to a judge of the Court); and (b) such other jurisdiction as may be conferred by or under federal law. (2) There shall be a court which shall be known as the Mahkamah Persekutuan (Federal Court) and shall have its principal registry at such place as the Yang di-Pertuan Agong may determine, and the Federal Court shall have the following jurisdiction, that is to say— (a) jurisdiction to determine appeals from decisions of the Court of Appeal, of the High Court or a judge thereof; S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 (b) such original or consultative jurisdiction as is specified in Articles 128 and 130; and (c) such other jurisdiction as may be conferred by or under federal law. (3) Subject to any limitations imposed by or under federal law, any order, decree, judgment or process of the courts referred to in Clause (1) or of any judge thereof shall (so far as its nature permits) have full force and effect according to its tenor throughout the Federation, and may be executed or enforced in any part of the Federation accordingly; and federal law may provide for courts in one part of the Federation or their officers to act in aid of courts in another part. (4) In determining where the principal registry of the High Court in Sabah and Sarawak is to be, the Yang di-Pertuan Agong shall act on the advice of the Prime Minister, who shall consult the Chief Ministers of the States of Sabah and Sarawak and the Chief Judge of the High Court.” [12] Seksyen 23 Akta Mahkamah Kehakiman 1964 memperuntukkan bidang kuasa asal Mahkamah Tinggi dengan memperuntukkan seperti berikut: “23 Civil jurisdiction - general (1) Subject to the limitations contained in Article 128 of the Constitution the High Court shall have jurisdiction to try all civil proceedings where - (a) the cause of action arose; (b) the defendant or one of several defendants resides or has his place of business; S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 (c) the facts on which the proceedings are based exist or are alleged to have occurred; or (d) any land the ownership of which is disputed is situated, within the local jurisdiction of the Court and notwithstanding anything contained in this section in any case where all parties consent in writing within the local jurisdiction of the other High Court. (2) Without prejudice to the generality of subsection (1), the High Court shall have such jurisdiction as was vested in it immediately prior to Malaysia Day and such other jurisdiction as may be vested in it by any written law in force within its local jurisdiction.” [13] Begitu juga seksyen 24 Akta Mahkamah Kehakiman 1964 yang memperuntukkan seperti berikut: “24 Civil jurisdiction - specific Without prejudice to the generality of section 23 the civil jurisdiction of the High Court shall include - (a) jurisdiction under any written law relating to divorce and matrimonial causes; (b) the same jurisdiction and authority in relation to matters of admiralty as is had by the High Court of Justice in England under the United Kingdom Supreme Court Act 1981; (c) jurisdiction under any written law relating to bankruptcy or to companies; (d) jurisdiction to appoint and control guardians of infants and generally over the person and property of infants; S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 (e) jurisdiction to appoint and control guardians and keepers of the person and estates of idiots, mentally disordered persons and persons of unsound mind; and (f) jurisdiction to grant probates of wills and testaments and letters of administration of the estates of deceased persons leaving property within the territorial jurisdiction of the Court and to alter or revoke such grants.” [14] Adalah menjadi prinsip undang-undang yang mantap bahawa sebarang peruntukan yang terdapat dalam mana-mana perjanjian di antara pihak-pihak yang memperuntukkan bidang kuasa Mahkamah untuk memutuskan suatu pertikaian tidak menyekat budi bicara Mahkamah untuk menentukan dimanakah pertikaian tersebut boleh diputuskan. Ini dapat dilihat dalam kes Globus Shipping & Trading Co (PTE) Ltd v Taiping Textiles Berhad [1976] 2 MLJ 154 di mana Mahkamah Persekutuan setelah meneliti keputusan kes-kes yang berkaitan dengan isu tersebut telah membuat kesimpulan seperti berikut: “It would seem abundantly clear from the authorities that where a cause of action in respect of any dispute in relation to a contract arises and is therefore properly within its jurisdiction, the court has a discretion whether or not to adjudicate upon theclaim in the action even where the parties have agreed to refer such dispute to a foreign court, and that the question of jurisdiction is quite separate from the question of the proper law of the contract to be applied. From the reasons given by the learned judgein allowing the appeal in the present case it was clear that he had exercised his discretion in accordance with the well-established and recognized principles. We were therefore satisfied that he was right in allowing the appeal.” S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 [15] Dalam erti kata lain sebarang terma yang memperuntukkan bahawa pertikaian di antara pihak-pihak perlu dirujuk kepada suatu bidang kuasa Mahkamah tidak mengikat Mahkamah. Ini telah dinyatakan oleh Lord Dening dalam kes The Fehmarn, [1958] 1 All ER 333 seperti berikut: “The next question is whether the action ought to be stayed because of the provision in the bill of lading that all disputes are to be judged by the Russian courts. I do not regard this provision as equal to an arbitration clause, but I do say that the English courts are in charge of their own proceedings: and one of the rules which they apply is that a stipulation that all disputes should be judged by the tribunals of a particular country is not absolutely binding. Such a stipulation is a matter to which the courts of this country will pay much regard and to which they will normally give effect, but it is subject to the overriding principle that no one by his private stipulation can oust these courts of their jurisdiction in a matter that properly belongs to them.” [16] Hal yang sama turut dinyatakan oleh Mahkamah Agong dalam kes American Express Bank Ltd v Mohamed Toufic Al-Ozeir & Anor [1995] 1 MLJ 160 yang memutuskan seperti berikut: “We considered the relevant factors in this instant appeal. A very glaring factor in the instant appeal was the foreign jurisdiction clauses in both the said agreements as set out above by which the bank customers had chosen Singapore courts for the litigation, ie expressly, in other words, the bank customers had submitted to the jurisdiction of the chosen Singapore courts; and further, both parties had chosen Singapore law as the law of their choice for the litigation, prospective or otherwise. S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 It would be clear that, notwithstanding such clauses, a Malaysian court, ie High Court below, could not be precluded simpliciter thereby from exercising the discretion, according to the doctrine of forum non conveniens, as to whether to hear the instant case or not, please see the Federal Court case of Globus Shipping and Trading Co (Pte) Ltd v Taiping Textiles Bhd [1976] 2 MLJ 154. That said, such clauses would in any event, in some significant way, militate against any argument for the bank customers, ie the plaintiffs, that the Malaysian court was the most appropriate forum. It is desirable, in passing, to point out that had there been no choice of the Singapore courts in the said clauses, but only the choice of Singapore law, such choice of Singapore law agreed to by both parties would not have amounted to a submission to the jurisdiction of the Singapore courts.” [17] Ini bermakna sebarang klausa yang terdapat dalam perjanjian di antara Plaintif dan Defendan-Defendan dalam kes ini tidak menghalang Mahkamah ini untuk menggunakan budi bicara bagi mendengar permohonan ini walaupun terdapat persetujuan bahawa perjanjian tersebut akan mengikut undang-undang Hong Kong. Pada pendapat Mahkamah ini bagi menentukan sama ada Mahkamah wajar menggunakan budi bicara untuk mendengar kes ini atau sebaliknya Mahkamah ini perlu meneliti kepada jenis permohonan yang dibuat dalam kes ini dan isu undang-undang yang dibangkitkan oleh kedua- dua pihak. Ini bagi menentukan sama ada wajar atau tidak walaupun terdapat persetujuan kes ini didengar di Hong Kong ia didengar di dalam bidang kuasa Mahkamah ini. [18] Penelitian kepada KM15 dan klausa 6 dalam perjanjian antara Plaintif dan Defendan didapati terdapat isu berkaitan dengan timbang tara. Ini bermakna Mahkamah perlu mempertimbangkan hal yang S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 berkaitan dengan timbang tara ini dan hubung kaitnya dengan bidang kuasa Mahkamah. Bidang kuasa Mahkamah dan hubung kait dengan undang-undang timbang tara [19] Dalam kes ini permohonan yang dikemukakan oleh pihak Plaintif adalah berkaitan dengan seksyen 10 Akta Timbang Tara 2005 yang menyatakan seperti berikut: “10 Perjanjian timbang tara dan tuntutan substantif di hadapan Mahkamah (1) Mahkamah yang di hadapannya prosiding dibawa berkenaan dengan suatu perkara yang menjadi hal suatu perjanjian timbang tara hendaklah, jika suatu pihak membuat permohonan sebelum mengambil apaapa langkah lain dalam prosiding itu, menggantung prosiding itu dan merujukkan pihak-pihak itu kepada timbang tara melainkan jika mahkamah itu mendapati bahawa perjanjian itu adalah batal dan tidak sah, tidak berkuat kuasa atau tidak dapat dilaksanakan. (2) Mahkamah, dalam membenarkan suatu penggantungan prosiding menurut subseksyen (1), boleh mengenakan apa- apa syarat sebagaimana yang difikirkannya patut. (2A) Jika prosiding admiralti digantung menurut subseksyen (1), mahkamah yang membenarkan penggantungan itu boleh, jika dalam prosiding mahkamah itu harta pernah ditahan atau ikat jamin atau jaminan lain telah diberikan untuk mengelakkan atau mendapatkan pelepasan daripada tahanan- S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 (a) memerintahkan supaya harta yang ditahan itu dipegang sebagai jaminan bagi penyelesaian apa-apa award yang diberikan dalam timbang tara berkenaan dengan pertikaian itu; atau (b) memerintahkan supaya penggantungan prosiding itu adalah dengan syarat pengadaan jaminan yang setara bagi penyelesaian apa-apa award sedemikian. (2B) Tertakluk kepada apa-apa kaedah-kaedah mahkamah dan kepada apa-apa ubah suaian yang perlu, undang-undang dan amalan yang sama hendaklah terpakai berhubungan dengan harta yang dipegang menurut suatu perintah di bawah subseksyen (2A) sebagaimana akan terpakai jika ia ditahan bagi maksud prosiding dalam mahkamah yang membuat perintah itu. (2C) Bagi maksud seksyen ini, prosiding admiralti merujuk kepada prosiding admiralti di bawah Aturan 70 Kaedah- Kaedah Mahkamah Tinggi 1980 [PU(A) 50/1980] dan prosiding yang dimulakan menurut perenggan 24(b) Akta Mahkamah Kehakiman 1964 [Akta 91]. (3) Jika prosiding yang disebut dalam subseksyen (1) telah dibawa, prosiding timbang tara boleh dimulakan atau diteruskan, dan suatu award boleh dibuat, sementara isu itu belum selesai di hadapan mahkamah. (4) Seksyen ini hendaklah juga terpakai berkenaan dengan timbang tara antarabangsa, sekiranya tempat timbang tara bukan di Malaysia.” [20] Ia membawa maksud Mahkamah ini perlu meneliti peruntukan di bawah Akta Timbang Tara 2005 dan hubung kaitnya bidang kuasa Mahkamah ini untuk mendengar perkara berkaitan dengan timbang tara. Ia tidak boleh dipisahkan di antara bidang kuasa kuasa dan pemakaian Akta Timbang Tara 2005 dalam kes ini. Ini adalah S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 disebabkan sebarang perintah yang diberikan berkaitan dengan Akta Timbang Tara 2005 itu adalah berkaitan dengan sama ada Mahkamah Tinggi mempunyai bidang kuasa untuk menyelia prosiding yang berkaitan dengan timbang tara di bawah Akta tersebut. Adakah Mahkamah Tinggi yang tidak mempunyai bidang kuasa untuk menyelia satu prosiding timbang tara seperti dalam kes ini yang menjelaskan bahawa timbang tara dilakukan di dalam mengikut undang-undang di Hong Kong. [21] Penelitian kepada Akta Timbang Tara 2005 telah menyatakan bahawa perkataan mahkamah adalah merujuk kepada: "Mahkamah Tinggi" ertinya Mahkamah Tinggi di Malaya dan Mahkamah Tinggi di Sabah dan Sarawak atau mana-mana satu daripadanya, mengikut kehendak keadaan.” [22] Ia mempunyai kaitan dengan sama ada tempat timbang tara akan dijalankan adakah ia berada dalam bidang kuasa Mahkamah Tinggi Malaya atau di tempat yang lain. Ini adalah bagi membolehkan pematuhan kepada seksyen 22 Akta Timbang Tara 2005. [23] Dalam kes ini persetujuan untuk merujuk pertikaian Plaintif dan Defendan kepada timbang tara di Hong Kong pada hemat mahkamah adalah termasuk dalam perjanjian timbang tara yang terdapat di bawah seksyen 9 Akta Timbang Tara 2005 yang menjadi asas kepada permohonan ini untuk menggunapakai seksyen 10 Akta tersebut supaya prosiding ini ditangguhkan bagi merujuk pertikaian ini kepada S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 timbang tara seperti yang dipersetujui dalam perjanjian di antara Plaintif dan Defendan. Seksyen 9 Akta Timbang Tara 2005 menyatakan seperti berikut: “9 Takrif dan bentuk perjanjian timbang tara (1) Dalam Akta ini, "perjanjian timbang tara" ertinya suatu perjanjian oleh pihak-pihak untuk mengemukakan kepada timbang tara semua pertikaian atau pertikaian tertentu yang telah timbul atau yang mungkin timbul antara mereka berkenaan dengan hubungan di sisi undang-undang yang ditetapkan, sama ada kontraktual atau tidak. (2) Suatu perjanjian timbang tara boleh berupa dalam bentuk suatu fasal timbang tara dalam suatu perjanjian atau dalam bentuk suatu perjanjian yang berasingan. (3) Suatu perjanjian timbang tara hendaklah secara bertulis. (4) Suatu perjanjian timbang tara adalah secara bertulis- (a) jika kandungannya direkodkan dalam apa jua bentuk, sama ada atau tidak perjanjian timbang tara atau kontrak itu telah dipersetujui secara lisan, melalui kelakuan, atau dengan cara lain; atau (b) jika perjanjian itu terkandung dalam suatu pertukaran pernyataan tuntutan dan pembelaan yang dalamnya kewujudan suatu perjanjian dikatakan oleh satu pihak dan tidak dinafikan oleh pihak yang satu lagi. (4A) Kehendak suatu perjanjian timbang tara dibuat secara bertulis dipenuhi oleh apa-apa komunikasi elektronik yang dibuat oleh pihak-pihak melalui mesej data jika maklumat yang terkandung dalamnya boleh diakses supaya boleh digunakan untuk rujukan yang berikutnya. S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 (5) Sebutan dalam suatu perjanjian mengenai suatu dokumen yang mengandungi fasal timbang tara hendaklah menjadi suatu perjanjian timbang tara, dengan syarat bahawa perjanjian itu adalah secara bertulis dan sebutan itu adalah yang sedemikian untuk menjadikan fasal itu sebahagian daripada perjanjian itu. (6) Bagi maksud seksyen ini, "mesej data" ertinya maklumat yang dijana, dihantar, diterima atau disimpan dengan cara elektronik, magnetik, optik atau cara seumpamanya, termasuk, tetapi tidak terhad kepada, pertukaran data elektronik, mel elektronik, telegram, teleks atau salinan teleks.” [24] Dalam konteks ini perjanjian timbang tara tersebut menunjukkan bahawa pihak-pihak bersetuju untuk mengemukakan pertikaian kepada timbang tara di Hong Kong. Ini bermakna timbang tara tersebut dipersetujui akan dijalankan di Hong Kong. Dalam konteks seksyen 22 Akta Timbang Tara 2005 memperuntukkan seperti berikut: “22 Tempat timbang tara (1) Pihak-pihak adalah bebas bersetuju mengenai tempat timbang tara. (2) Jika pihak-pihak gagal bersetuju di bawah subseksyen (1), tempat timbang tara hendaklah ditentukan oleh tribunal timbang tara dengan mengambil kira hal keadaan kes, termasuk kemudahan pihak-pihak. (3) Walau apa pun subseksyen (1) dan (2), tribunal timbang tara boleh, melainkan jika dipersetujui selainnya oleh pihak- pihak, bersidang di mana-mana tempat yang difikirkannya sesuai untuk bermesyuarat sesama anggotanya, untuk S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 mendengar saksi, pakar atau pihak-pihak, atau untuk memeriksa barang, harta atau dokumen lain.” [25] Dalam kes ini tempat timbang tara yang telah dipersetujui adalah di Hong Kong seperti yang dinyatakan di bawah seksyen 22 Akta tersebut. Pemakaian seksyen 22 Akta Timbang Tara 2005 berkaitan dengan tempat timbang tara telah dijelaskan dengan menarik oleh Mahkamah Persekutuan dalam kes Masenang Sdn Bhd v. Sabanilam Enterprise Sdn Bhd [2021] 9 CLJ 1 seperti berikut: “The Law Relating To The Juridical Seat In Arbitration Law [106] On what basis is it concluded that the seat of an arbitration also determines the identity of the court enjoying exclusive jurisdiction to supervise and regulate the arbitration? We have considered this issue to some extent above, but elaborate further below. [107] While the definition of the "seat" of an arbitration is set out in s. 22 of the AA, the concept of the juridical "seat" and its relationship to the supervisory jurisdiction of a court in dealing with matters regulating the arbitral proceedings (including challenges to arbitral awards) is not expressly provided for in the AA. It is important to comprehend the law on what constitutes the "juridical seat" and whether, once the seat is specified in the arbitration agreement, the courts at the place of the seat would alone have exclusive jurisdiction over the arbitral proceedings. [108] This issue has to be analysed and established by reference to the concepts and basis of arbitration law, which is international in nature and practice, bearing in mind that the AA is modelled on the UNCITRAL Model Law. In the renowned textbook by Redfern (see para 3.54) it is stated that "the seat of the arbitration is thus intended to be its centre of S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 gravity." (Blackaby, Partasides, Redfern and Hunter (eds.), Redfern and Hunter on International Arbitration (5th edn., Oxford)). All else ensues from the seat. The choice of court enjoying regulation of the arbitral proceedings is derived from the seat. It is the court at the seat that enjoys exclusive jurisdiction to supervise and regulate those arbitral proceedings. Ascertaining The Court Enjoying Supervisory Jurisdiction Over An Arbitration - Domestic Or International [109]Section 22 AA statutorily codifies the concept of the seat of jurisdiction in arbitration law in Malaysia. It is premised on the UNCITRAL Model Law and a similar provision is utilised in many other jurisdictions. We have explained in detail above that it encompasses the concepts of determining the applicable curial law as well as ascertaining the court enjoying supervisory jurisdiction over the regulation of the arbitration proceedings, which encompasses interim measures, registration, enforcement and setting aside an award.” [26] Dalam kes Masenang Sdn Bhd v. Sabanilam Enterprise Sdn Bhd (supra) tersebut Mahkamah Persekutuan telah mengaitkan hubung kait bidang kuasa Mahkamah dengan Akta Timbang Tara 2005 dengan menyatakan seperti berikut: “[139] Why, it might be asked is that so? It might well be argued that although choosing a seat for arbitration and correspondingly allocating the court at the seat with exclusive jurisdiction to regulate the arbitral proceedings is an autonomy given to the parties under the AA, territorial jurisdiction is not something which the parties can decide. A court is conferred with territorial jurisdiction over a particular case if the cause of action arises within the geographical territory of a court, the basis for which include the provisions of the CJA and the codified rules of procedure. S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 [140] To apply the well-known Latin maxim of generalia specialibus non derogant, a special law prevails over a general law. In any event, arbitration is a completely distinct and disparate dispute resolution process in comparison to the adjudication of civil disputes. The concepts and philosophy of these two modes of dispute resolution are completely different. These two modes are accordingly governed by distinct and separate legislation. As such, in the present context, the AA is the relevant legislation, not the CJA. The two ought not to be conflated. In an arbitration dispute, the cause of action which may be, for example, breach of contract, is determined finally. The civil courts are approached not for the purposes of trying the same cause of action, but purely for the purposes of recognition and to a very narrow extent, the setting aside of the arbitral award. In that sense, the jurisdiction of the civil courts as stipulated in the AA is not engaged as it would be in a normal civil matter. Therefore this takes the cause of action which has merged in the arbitration award out of the scope of the CJA and brings it into the purview of the AA. [141] In this context, it is important to reiterate again that the provisions of the CJA and the RC are general codes that provide the substantive and procedural basis for deciding disputes arising from general civil disputes. These laws do not limit nor affect any special law such as the AA. The AA is a special law codified to govern arbitration proceedings, both domestic and international. It gives effect to the principle of party autonomy by giving the parties the freedom to choose courts under the seat of arbitration that will have supervisory jurisdiction. [142] Therefore special jurisdiction conferred on the court at the seat through the parties' agreement ought not to be limited or affected by legislation relating to the adjudication of civil disputes, domestically or nationally. Party autonomy which comprises the essence of arbitration must be given due cognisance. It follows that the approach of the courts, in keeping with the legislation, should be to uphold the exclusive jurisdiction of the courts of the seat of arbitration, as that is the S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 correct applicable law in relation to the regulation and supervision of arbitrations under the AA.” [27] Oleh yang demikian dalam kes ini Mahkamah berpendapat bahawa persetujuan di antara Plaintif dan Defendan-Defendan untuk merujuk pertikaian mereka kepada timbang tara di Hong Kong perlu dihormati. Rujukan kepada undang-undang di Hong Kong mendapati bahawa tatacara timbang tara adalah tertakluk kepada Arbitration Ordinance (Cap. 609) Hong Kong yang memperuntukkan secara komprehensif tatacara timbang tara yang sewajarnya dijadikan rujukan dalam tindakan Plaintif dan Defendan-Defendan sekiranya berlaku pertikaian berkenaan dengan perjanjian tersebut. [28] Mahkamah berpendapat adalah tidak wajar untuk kes ini dikendalikan di bawah bidang kuasa Mahkamah Tinggi Malaya Temerloh disebabkan sudah terang lagi bersuluh ianya wajar dikendalikan di bawah undang-undang Hong Kong. Ianya berbeza sekiranya tiada persetujuan pihak-pihak untuk kes ini dirujuk ke timbang tara di Hong Kong. Mahkamah ini mengambil perhatian bahawa Akta Timbang Tara 2005 adalah terpakai kepada timbang tara yang melibatkan perjanjian timbang tara tempatan dan juga timbang tara antarabangsa yang telah ditakrifkan seperti berikut: "timbang tara antarabangsa" ertinya suatu timbang tara yang- (a) salah satu daripada pihak kepada suatu perjanjian timbang tara, pada masa pembuatan perjanjian itu, mempunyai tempat urusannya di mana-mana Negara selain Malaysia; S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 (b) salah satu daripada yang berikut terletak dalam mana- mana Negara selain Malaysia tempat pihak-pihak itu mempunyai tempat urusan mereka: (i) tempat timbang tara jika ditentukan dalam, atau menurut, perjanjian timbang tara; (ii) mana-mana tempat di mana sebahagian besar obligasi mana-mana perhubungan perdagangan atau yang lain yang hendaklah dilaksanakan atau tempat yang dengannya hal perkara pertikaian itu mempunyai kaitan yang paling rapat; atau (c) pihak-pihak telah bersetuju dengan nyata bahawa hal perkara perjanjian timbang tara berkaitan dengan lebih daripada satu Negara.” [29] Penelitian kepada Arbitration Ordinance (Cap. 609) Hong Kong mempunyai peruntukan di bawah seksyen 5 seperti berikut: “5. Arbitrations to which this Ordinance applies (1) Subject to subsection (2), this Ordinance applies to an arbitration under an arbitration agreement, whether or not the agreement is entered into in Hong Kong, if the place of arbitration is in Hong Kong. (2) If the place of arbitration is outside Hong Kong, only this Part, sections 20 and 21, Part 3A, sections 45, 60 and 61, Part 10 and sections 103A, 103B, 103C, 103D, 103G and 103H apply to the arbitration. (Amended 7 of 2013 s. 4; 5 of 2017 s. 3) (3) If any other Ordinance provides that this Ordinance applies to an arbitration under that other Ordinance, this Ordinance (other than sections 20(2), (3) and (4), 22(1), 58 and 74(8) and S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 (9)) applies to an arbitration under that other Ordinance, subject to the following— (a) a reference in article 16(1) of the UNCITRAL Model Law, given effect to by section 34, to any objections with respect to the existence or validity of the arbitration agreement is to be construed as any objections with respect to the application of that other Ordinance to the dispute in question; (b) that other Ordinance is deemed to have expressly provided that, subject to paragraph (c), all the provisions in Schedule 2 apply; and (c) section 2 of Schedule 2 (if applicable) only applies so as to authorize 2 or more arbitral proceedings under the same Ordinance to be consolidated or to be heard at the same time or one immediately after another. (4) Subsection (3) has effect, in relation to an arbitration under any other Ordinance, only in so far as this Ordinance is consistent with— (a) that other Ordinance; and (b) any rules or procedures authorized or recognized by that other Ordinance.” [30] Ia perlu dilihat peruntukan yang sama yang terdapat dalam Akta Timbang Tara 2005 iaitu di seksyen 3 yang menyatakan seperti berikut: “3 Pemakaian bagi timbang tara dan award di Malaysia (1) Akta ini hendaklah terpakai di seluruh Malaysia. (2) Berkenaan dengan suatu timbang tara domestik, jika tempat timbang tara adalah di Malaysia- S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 (a) Bahagian I, II dan IV Akta ini hendaklah terpakai; dan (b) Bahagian III Akta ini hendaklah terpakai melainkan jika pihak-pihak bersetuju selainnya secara bertulis. (3) Berkenaan dengan timbang tara antarabangsa, jika tempat timbang tara adalah di Malaysia- (a) Bahagian I, II dan IV Akta ini hendaklah terpakai; dan (b) Bahagian III Akta ini tidak terpakai melainkan jika pihak-pihak bersetuju selainnya secara bertulis. (4) Bagi maksud perenggan (2) (b) dan (3) (b), pihak-pihak kepada suatu timbang tara domestik boleh bersetuju untuk mengecualikan pemakaian Bahagian III Akta ini dan pihak- pihak kepada suatu timbang tara antarabangsa boleh bersetuju untuk memakai Bahagian III Akta ini, secara keseluruhan atau sebahagian.” [31] Penelitian yang terhadap Arbitration Ordinance (Cap. 609) Hong Kong terdapat peruntukan yang sama berkenaan dengan takrifan Mahkamah yang merujuk kepada Mahkamah Tinggi di Hong Kong. Ini dapat dilihat seperti berikut: “Court (原訟法庭) means the Court of First Instance of the High Court” [32] Penelitian kepada Arbitration Ordinance (Cap. 609) Hong Kong dan Akta Timbang Tara 2005 menunjukkan bahawa masing-masing bidang kuasa mempunyai prosedur yang tertentu berkenaan dengan timbang tara dan peranan Mahkamah dalam mengendalikan perkara berkaitan dengan timbang tara adalah tertakluk kepada Mahkamah S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 Tinggi di dalam bidang kuasa tersebut. Pihak Plaintif dan Defendan- Defendan bersetuju untuk merujukkan pertikaian mereka kepada Hong Kong International Arbitration Centre Administered Arbitration Rules seperti yang ditakrifkan di bawah seksyen 2 Arbitration Ordinance (Cap. 609) Hong Kong seperti berikut: “HKIAC (香港國際仲裁中心) means the Hong Kong International Arbitration Centre, a company incorporated in Hong Kong under the Companies Ordinance (Cap. 32) as in force at the time of the incorporation and limited by guarantee; (Amended 28 of 2012 ss. 912 & 920)” [33] Oleh itu apabila pihak Plaintif dan Defendan-Defendan bersetuju untuk merujuk kepada undang-undang Hong Kong berkenaan dengan timbang tara adalah lebih wajar agar pertikaian tersebut diputuskan mengikut tata cara prosiding di bawah Arbitration Ordinance (Cap. 609) Hong Kong di bawah penyeliaan Mahkamah Tinggi di Hong Kong dan bukannya di Mahkamah Tinggi Malaya. [34] Oleh itu Mahkamah ini berpendapat berdasarkan kepada penelitian undang-undang timbang tara dan bidang kuasa Mahkamah dalam Akta Mahkamah Kehakiman 1964 Mahkamah ini berpendapat tiada bidang kuasa untuk memutuskan dan mendengar permohonan di KM15 dan memutuskannya. Ia adalah di bawah bidang kuasa pihak yang telah dipersetujui oleh Plaintif dan Defendan dalam perjanjian persetujuan timbang tara yang menjadi sebahagian daripada terma dalam perjanjian di antara Plaintif dan Defendan-Defendan. S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 Bertarikh: 24hb. November 2023 (ROSLAN BIN MAT NOR) HAKIM MAHKAMAH TINGGI MALAYA TEMERLOH, PAHANG DARUL MAKMUR PIHAK-PIHAK: Bagi Pihak Plaintif Siew Jun Seng Tetuan Tan Shang Neng Kuala Lumpur Bagi Pihak Defendan-Defendan Marcus Lee dan Ng Soon Kiat Tetuan Marcus Lee Kuala Lumpur S/N S8bgGJzSREKVDioGgq75gg **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

WA-11BNCvC-50-09/2022

PERAYU KALAIYARASI A/P MOKAYAH RESPONDEN JASPAL KAUR A/P LALL SINGH

This Court allows the appeal and the decision by the Magistrate Court is set aside. The judgment sum so ordered which comprised of RM22,400 for rent outstanding, RM15,253 for mesne profits and costs of RM4,537.65, is to be returned to the Appellant. Costs of RM10,000 for this appeal is awarded to the Appellant.

24/11/2023

YA Puan Roz Mawar binti Rozain

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=fa8037fe-f3fd-42b9-8d31-b2d26de653ff&Inline=true

24/11/2023 12:26:27 WA-11BNCvC-50-09/2022 Kand. 25 S/N /jeAv3zuUKNMbLSbeZT/w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N /jeAv3zuUKNMbLSbeZT/w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N /jeAv3zuUKNMbLSbeZT/w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N /jeAv3zuUKNMbLSbeZT/w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N /jeAv3zuUKNMbLSbeZT/w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N /jeAv3zuUKNMbLSbeZT/w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N /jeAv3zuUKNMbLSbeZT/w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N /jeAv3zuUKNMbLSbeZT/w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N /jeAv3zuUKNMbLSbeZT/w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N /jeAv3zuUKNMbLSbeZT/w **Note : Serial number will be used to verify the originality of this document via eFILING portal wA—11mIcvc—5u—o9/2n22 Kand. 25 2:1/n/2023 ]2:2b'27 IN YHE HIGH counr IN MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORV. MALAVSIA CIVIL APPEAL u wM1aMcyc.sam/aozz BETWEEN KALAIVARASI A/P MOOKHAN (NRIC ~o- soowa-1o-4192) APPELLANT AND uswu. uuk up LALL slmsn (um: :40: smaz-moan) (as Encnlut lnr um nun av mun sung an mum slum aac RESPONDENT I“. i,.. [1] Mar a mu lnal. um Magmme coun ruled for ma Rsspanaenc and allowed her claim against me Aoueuam. Yhe Appdklnl was ordered 10' (0) my line Respunaenx RM22‘40D which was the man: nutslanding forwlarm 2020 in Ann! 2021. my pay me Resnomenc RM15253 mesne profils fromlhe pervod 1.5 2021 to me date 0! me delwe-y at vacant pcssassian an 24 9 2021 0 (C) In|erers| nasss hum 2n 5 2021 wmm ls he da|a 0! mm of me sml mm the am at full am: nna: saI(|eman|o1 om Judamanl sum‘ Id) costs at uoganon at me Magistrate Cnun that amounlod lo RM4,537.as Mansr ralsedm 0. al whemsrms lanlls me n to me Kenancxa [21 The property In queslton 5 a Hat al Na 2710. Tingkal 7, Milayan Mansxon Julan Maafld Vndul. some man Lumpur. Vacant possessmn was dallvued (0 me Flespondem an 240202: Thu Respondent had Imllalm this sum as me oxecuwrcf Mr lab husband’: eslma Hurjrl Smgh all Daulal Smgh um deceased) had Inbenled me p-upenmmm nu ma mmhev [31 The Appeflantand me Rsspondsnl are not known In each amer and hid ml mat war In me Inmallon 0! me sun It the Magistrate Court. The arrangement mm vegan: nu me prapany slarled Ill 1980 deceasecfs L-ne malhev run an anangemenc wnh me Aapenanrs ma|I1ev(DW3). ow: m I:-Axrszuuxnmlsn-27/w mm. snn ...m.mn .. 0... w may he mm-y mm: dnuumnl VII mum Wm! Iestifisd an |rial bul nad srnoe passed away on 10 7 2022 There was no wnnen agreemem beiwesn me two elderly ladies [4] Aceofdlng lo neneeurnony, the Appellant does um have lmawiedge peralnlng lo me agreemenl and ms arrengemenlol lne propeny. She had m1l|ialsedwll.h one Respondenlal al. The Appellanl ned lesmied max one was also um Involved In me rent paymenl or oollecllon or nanu-ng over me same no me Appellant [51 nwa wna was ac yeare at age wnen Ina lnsllflem scaled ma! me anenpemenl mn me Respondenrs mo1har—ln-law was some asslslanee or looking kw lenanls and me odlleolion 01 real of ma DVODSNY Tne Respondenrs rnotmr-in-law had oullacled me renllrorn aw: evsry rnonnn an owns house next door In lno pruperw (ml lne pmpeny es DW3 dld non slay an lne pronenyl. Mler ner demlse, me deceased ounlimled wlm mis practice upon Ms denuae, me Reepondem oomlnued to do 30 and we was done by me Respondenl v-slung the shop ol the Appellant and vwzn lemlly business‘ The Madras Slnra, up mllacl me rem quaneny wfllch ls RM1.600 «or every lour rrlonms. Tuvrzrdx mo end. DW21DW3‘s dnuyhlsr Mm ls me younger sale! cl‘ Ins Appellenl) ma wvmen «near moo-lee lonno renlal collided (0 me Respmdenn TM reoeipu hmem wsm addressed lo lne Appellant allnoupn um do nol know non and hid nul nrel befum mas sun mm confirmed met me Appellant had no knowledge ollhe egreernenl as lo me pmpeny [5] on 13.3.2020. vmen lne Respondenl oolleaed lne renlals lnr me rmnms oi sepleqnw 2ul9 lo December 2019, um lhvwgh DW2 lnlonned hermalshe was no: able woonllnus to called me renl and nun: Va! lenanu lor me property as she was already aged The Respondenl 3 rNl‘nAlr.lzuuKNMa1sn-zT/w _«waa Smnl In-vlhnrwm a. med m my a. nflfllnnllly mm: dun-mm wa .nune pm was asked in cousn me key 020 me vruverly Tm Rupov-den: had requested for own not on cerrnn-ace suen arrangement All this was done Vida nwz wm handed me cheques and received me renews‘ and mmmunicatsd me messages «mm aw: F1! The Mnvemeul Conlm Omar (me In me covu)-19 panaemsc was unposea five day: mar ana me pmpeny was located m Ihe area where access wns ml pecvnmea, wn-n me Ruozmern came In nollecl vent on mama, ma run for January 2020 am ronruery 2o2u ware handed aver In her She wns lnlunmd um Ito Malun women we named mom: :1 Mmayan Manama were me pmpeny .a naa bean aporahandad nnd deported. The Respannenx had sun yet «a eouecune keys lo we pmpeny [8] Trnn lasl naymem Mranl was a\so nulsfl in me dveqnebook of wvz. um kasnfled «mm March 2020 onwards as wnfulmed lo we Respnruiem, Dwa no longer eouemaa any rencals mme pmpeny or looked «ur new tenants nws nae nasuuea max sne used no do ma1 to £15551 me Raaponaenra Iale moiheran-‘aw, and all were agraad In verbafly ana done on uruax based on man Iongaranamg Vriendsmp. [91 Thu Ra!90rIu¢n| did not have knowlscae as In who wowed the prapeny an anvmven me The Aopeuam. uwz and aw: hslified mama Appeuam had ml oocupua me pmplny and maxwnax-mwas lerfl behind on ma pmverly bekinoed lo we Respondenfs tanner nemns Hxmeven on 2n 3.2021 when the Respondent lugelherwwlh hevson PW2 mspeded me Dmneny mruugn me bmken window, may sighted fllmgs Ian behind strewn In me mum badly uelipmaeea state .71 the pmpsny. one at me things was a slynboam or Madras smremuaraa nmarng Saloon. me lamlly business at me Appellant The napamenn men want in me rn I:-Axrszuuxnmlsn-zT/w _«wa.. a.r.r n-nhnrwm be mad w may he nrW\nnU|Y mm: dun-mm wa mum v-mm Madras Smraln \>omp\zIn aboul ma mndnrar. nllhe prumsas and aougm vacant Dousssion. Tm Mnellant had aaxaa car a week hm had omy deliveved vacant possessrorr on 24.9 zrm. nu] Bassd on are evidence in ma Appeal Records‘ mas Caurl rs samfled Inllanhough there was an ahsenoe acawrmm ounhacl, male was m lact In aarasrnenr with regard ro ma pmpeny ona ma| was mrwaen me Reapurraanra Iara momar -law arm ma Iara ow: ms was rsonaa long nnre 390. circl wean orevon aanianu man as us prwarau xnawxaaga of any M mu Dames mu mnaaaar. Even wwz confirmed Iha| n wn done aurora he was born [11] The agraememwas lor war» look far ranama anu collect me ram ollne property. ma alrangemml oaminued wrm me deceased when me ResP'¥|deu|‘s Iare momer-m—Iaw nsd Pissed away. Aner me aeaaaasd. ma Respmmsm had man mnfinued wrm such arrangemem but prmng up me rental «mm The Madras smra from rzwz mskaad ofgumg mma Ilmse Mme late nwa like ma late mama:-m-raw and ma deceased used we do. ma was nc| aana monthly like aarora hut quanaruy ma rental was no Iarrqar m cash auma mamas Vssuad by uwz. The raaarpa farms manay ooflecued hr ma ram: wara than rasuaa by ma naapamam In ma rrama or me Anneuanr. [121 Although ma Aweuam naa means: an aamaaxm mar sh: had rented me prupefly in paragraph 5 or hit naranea, evidence shows mac what had transpired asa resu\Iv1lhe\on9-slandmg vemax agreememwaa ma| ma ramwas canaaad fnrlhe Respondent whereby we was Cu aVso look Iur ranama lur me vropeny. ma Rsspnmenlhad nulprnven than me Appellant had oocumed ma property. m vaar rn Ihe omsacxamlnanon A71 5 m Ir-Av.\zuuKNMmsnazT/w _«wa.. sanaw n-nhnrwm a. LAIQ4 w my r... nrW\nnU|Y mm: dun-mm vu muNG v-mm me Aopsllanl. me cenneet tor tne Rlspondem look me poemen that me Apnaflanl alsa mu not have ktmwledge onne suil The mutual fur the Respondent suqgasled tnat me Aupellanfs name was wrongly used (or me purposes 01 tne agreemenmflhs tenane, [I3] tn ms ease. lms Cam cannot tgnue me evtdence adduced at man tnat mnfirmed me tea at me norhlnvolvemant M the AppeHun| mar Mr kmwiodga as In me agteemem nnu tne arrangement ms ceun names tnat n may be tne tegat atamng 5: men nwz wok tne slam, net undarulandlng was appnrani tnnt net emenm we. met sne hm tetnyea In the Rssvumianl tne Irtlnnlmn or net melhav ow: te tanntnnte tne auraemanl me wmtess statement may have onrweysd that ii was DW3 wno had vematty Manned me Rsspundanl but me fact ascertained was Ihe contention by Dwz am uwa that n was oammunlcated to me Resvovment via DW2. Sc, mem tnlhell lay Vanguage‘ DW3's tlI|elmon had been connnuntcatea to tne Respamem. my Having aamnntsea me nmes cl pmceeatngs of me Irtal and me eviuence Adducsd‘ tme Conn Vs eettenea Iha|Ihe\ong—uant1ing agreement penatntngte me pmpeny was not wtm lhl Appeuent. ‘The evidenca mow!‘ en a belnnce of Dtubwbwnu that tecetms teem to her Ham! and net ounclude met me agreement was wttn net em Ihal she wus ruponstble tmtne payment urwllaclion ollhe tentnn Tne evtdeoce tnc\udes' (a) me tact mat tne parties are net kmwm In each enter pnor In we aunt; M The names had no eomnntnteatten mm each amen In pamcullr wttn regard to the vrweny: m It-Av.tzuuKNMn1snnzT/w «mt. s.n.t ...n.mn .. .n.. M my t... nt1mn.HIy mm: dnuumttl VII nF\uNG Wm! (C) All roman we rauuwad nern ow: vlde nwz me cheques were nm vssued by me Apgellanl: my For «ne receipts issuee by me Respondent under me Appevanrs name, :4 was me deceased who nad suggeslsd n wnn no krwmedga or umsern by me Appellant Ths was n use laws wus gmnled a lad Iienmy czld: (3) ow: me nnly wanes: wnn personal knomadga :7! me verbal zgroernenl, confirmed we nnnory M nn. agmamenl ragam to me pmpefly am an: ml involve rn. Apnlllanl at an; and (0 No pmaf Ina! «n. Appnlllm ned em occnpm me prupedy. [151 ms ceun mnsnared «no widens: oi Iha nrrrrnnannn cf such agreanenl co new m datamuning me pamu al the same. uwz had oumernporaneous daeumsmary avnseme m Ihe form 0! ner nolahon on her auequsbook to and me agreement This was done wilh me mnfirmahon amwa who had progressed m her years and was no longer able In help as agreed. In muaaang rentals and locking lor new Ieuanls. rne Respondent demad ms nu insisted lhai n was her who n.-.4 larmlnaled me igraemam a yaar laler in was upon inspecung the umpam/. on nbalmne arprunabmnee, this Caun llndslhm me termination was done by uws via. aw: in 202:: Whu| 5 aoplmnl n man u am not invmva ma AppeHmvl an :11. [15] The Respcndem nnd not proven mat the sum Ml rn me nrupeny rn acwal can Damaged in me Appeuanx. The smnage o1The Madras Skxe at nears umumstamxal wven |hatThe Maura Slona V5 alsa DW3's [am-ly nusrnnss m unnmuuuxnunlsn-zT/w _«m.. snnnw n-nhnrwm .. LAIQ4 w my r... mn.ny mm: dun-mm VII murm v-max [171 A: In the delwery ol vacant nussessnon, mu alumni up am: repwr orme Wevvuau undertaken ny Dwa. this coun mews that n was based on me \cng—stand\ng agreement she had based on the trust and menasrnp with me Rsspanaenrs la|e moflwemrrlaw and me aeoaam [16] on me Issue at xennlnanon Mm: mane was a oommsl ov mn|enl\aM — mm mm (esflfied man sne had conveyed me lewmnalson M ma sgnam awangemenl due no Mr incapebmly, mough DW2 Dwz mnnnnea so and ma nalnd Vn mrmquuaook when Ins lasl payment my the mural collected was mm. lame Respondent The Raspnnflannan Inc my hand nlalmad mm n was sha who hm larrmnalad in one yea! taint, «many. 3 me agreemsm naa mways been n verbal ans. a name 01 («min on vemaliy is alsu aacemable However‘ Ihis com will m| aaaress that m-dew: as me sun anamsl the Aweflanl was nu pvoneny inslmned as sne was nm a parlylo me agleunem 1191 ms -s an appropflale case vonms com in Imewene In make nghl ms findings based an Inn evidence adduced The agreement that ms Roapondem mumsu for me man. at me decnasod was not mm ms Appellant (see my Axllnn Abdul Aux v Exp»! Plulncl Mlnuplmllll sen and [2017] 5 cu sa, Punmbun (M) son End 1/ Guilty cansuucuon Sdrv am [2012] 1 ML! an. Lu Inn Chin 1 On v Gun vm Chin A Ana [20:23] 2 CLJ1S?,LuNyanHon I smmrs Sdn Bhd vusnm cnann Sdn Bhd [zone] 5 cu 525) Conclusion [20] ms com auaws me appesx sna ms decision by me Magusmxe Cum 5 set asme The juugmenl sum so ordered wmch comprised nl m 1.-nmnm4mns..zw _«wn. snnnw n-nhnrwm .. LAIQ4 w my n. mmnmly mm: dun-mm VII mum pm RM22,4ou luv mu outsvandmu, RM15.253 607 means profits and wsls 91 aM4.5a7 55. is |u be rammed to me Applllanl Costs :71 RM1fl,flD0 for this appeal is awwea In me Anpsflanl DATED so MAV 2:123 R02 MAWAR ROZAIN JUDICIAL COMMISSIONER men coum w MALAYA KUALA LUMPUR For the Apptllanl. Numl Flfihah binli Abdul sum T/n rnammm smgn .4 Co Fol me Rsspnrldem: D8/vasna Kan! Sodhu B/p Gumcharan Sfngh 7/n Kenm PIrmsrsh7P m :..Amumms..zm mm. smm ...m.mm .. LAIQ4 w may he mm-y mm: dnuumnl VII mum Wm! RM22,4on var remuumanmng, RM15153 fov masno pmfils ma mos of nM4.5a7 65‘ is to be rammed In the Appellant Casts of RM1n,oco fur ms apnea! is awarded to me Aupeuam. DATED so MAY 2112: R02 MAWAR ROZAIN JUDICIAL coMM1ss\oNER HIGH COURT IN MALAVA KUALA LUMPUR Fol me Anpellam. Numl Fmman o/nu Abdul Guam rm 1'hsIam;iI‘ Singh 5 Co Forthc Raspovvdem‘ De/menu Kaur Sodhu -/p Guluchavan Sinvh T/n Konlh Pmnennrp m :..Amumms..zm mm. smm ...m.mm .. LAIQ4 w may he mm-y mm: dnuumnl VII mum Wm!

Tika 2.6.0 & Pytesseract-0.3.10

BA-22NCvC-159-04/2022

PLAINTIF HINO MOTORS SALES (MALAYSIA) SDN. BHD. DEFENDAN 1. ) K&T ENGINEERING & TRADING SDN. BHD. 2. ) KHOO BUN HANG 3. ) MIK KESUT A/P CHAU TIT

Penghakiman Terus - dibenarkan - tuntutan plaintif jelas dan nyata - tiada isu-isu untuk dibicarakan - isu sijil keberhutangan tidak tepat tidak dapat disangkal dengan dokumen atau keterangan disebaliknya oleh defendan-defendan - kausa tindakan akibat kemungkiran defendan-defendan tidak membayar hutang untuk barangan yang dihantar serah adalah sempurna.

24/11/2023

YA Tuan Muniandy a/l Kannyappan

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=9e1cbda3-ffe0-4c01-b959-e5e5ffd139dc&Inline=true

1 DALAM MAHKAMAH TINGGI DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SAMAN NO: BA-22NCvC-159-04/2022 ANTARA PLAINTIF HINO MOTORS SALES (MALAYSIA) SDN. BHD. (No. Syarikat: 198901010561 /187863-U) DAN 1. K&T ENGINEERING & TRADING SDN. BHD. (No. Syarikat: 199601033903 (406255-U)) 2. KHOO BUN HANG (No K/P: 631122-03-5537 /7186778) 3. MIK KESUT A/P CHAU TIT (No. K/P: 620810-03-5094 /6851954) 24/11/2023 00:07:07 BA-22NCvC-159-04/2022 Kand. 51 S/N o70cnuD/AUy5WeXl/9E53A **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 ALASAN PENGHAKIMAN [1] Kausa tindakan plaintif adalah akibat daripada pemecahan kontrak jualan barangan oleh defendan-defendan, dimana defendan- defendan telah mungkir membayar harga jual beli barangan dan menjelaskan keberhutangan yang disokong oleh invois-invois diantara tarikh 30.1.2018 hingga 28.2.2019 dan nota-nota debit. [2] Jumlah yang dituntut adalah RM3,306,169.59 yang merupakan harga jualan barangan chassis-chassis jenama HINO yang telah dihantar serah kepada defendan pertama (D1). [3] Defendan kedua (D2) dan defendan ketiga (D3) telah menjamin pembayaran harga jualan barangan tersebut. [4] Terdapat pengakuan bagi jumlah tersebut oleh D1 yang disokong oleh cek-cek pembayaran bagi tujuan menyelesaikan hutang kepada plaintif. Ini merupakan keterangan kukuh akan pengakuan kepada hutang-hutang tersebut oleh defendan-defendan. [5] Kausa tindakan plaintif terhadap D1 adalah sempurna memandangkan keterangan affidavit yang dikemukakan oleh plaintif menzahirkan: • Keberhutangan D1. S/N o70cnuD/AUy5WeXl/9E53A **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 • Barangan telah dihantarserah kepada D1. • Penerimaan barangan oleh D1. • Perjanjian-perjanjian belian yang dipersetujui serta bertandatangan dan diletakkan cop syarikat kedua-dua pihak disokong dengan nota serahan setiap satu dengan tandatangan dan cop akuan penerimaan oleh D1. • Pengakuan oleh D1 untuk membuat pembayaran. • Bayaran ansuran telah dibuat secara bayaran cek yang telah dijelaskan. • Akaun D1 dengan plaintif adalah satu “running account”. • Keberhutangan D1 dijamin oleh D2 dan D3. • Hantar serah barangan kepada D1 oleh plaintif serta jaminan oleh D2 dan D3 yang dibuktikan melalui “Dealership Agreement” dan “Guarantee” masing-masing. Kedua-dua perjanjian tersebut adalah asas bagi kausa tindakan oleh plaintif terhadap D2 dan D3. • Jumlah yang dituntut oleh plaintif telah dikurangkan, memandangkan terdapat pembayaran balik oleh D1. [6] Isu-isu yang ditimbulkan oleh D1, D2 dan D3 tidak perlu dibicarakan sebab, plaintif telah menjawabnya secara detil dalam affidavit- S/N o70cnuD/AUy5WeXl/9E53A **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 affidavit yang telah difailkan, serta hujahan plaintif dalam Lampiran 25 yang tidak dapat disangkal oleh defendan-defendan. [7] Isu-isu yang ditimbulkan adalah bahawa perjanjian pengedaran bertarikh 19.3.2008 bersama surat jaminan bertarikh 8.4.2008 telah luput. Isu ini tidak wajar ditimbulkan, disebabkan kewujudan surat- surat pembaharuan perjanjian pengedaran bertarikh 1.4.2019 yang telah diakui dan ditandatangani oleh D2 selaku Pengurus Besar D1. Dengan itu, isu yang ditimbulkan bahawa tiada perhubungan kontrak kerana perjanjian pengedaran telah tamat tempoh adalah penafian yang tidak berasas. Tambah lagi, surat jaminan tidak luput, selagi hutang yang dijamin belum ditunaikan sepenuhnya, selaras dengan klausa 15 dalam perjanjian jaminan yang dijelaskan seperti berikut: This guarantee shall not be determined or affected in any way by my/any of our deaths or insanity but shall in all respects and for all purposes be binding until discharged by performance thereof. [8] Isu perbezaan diantara tuntutan plaintif dibawah writ dan dibawah permohonan untuk penghakiman terus telah terbit kerana plaintif telah menolak jumlah RM30,000 daripada akaun tertunggak D1 setelah menerima pembayaran yang masuk selepas writ difailkan. Semasa writ difailkan, jumlah tuntutan adalah RM3,336,16.59 dan semasa permohonan untuk penghakiman terus dibuat adalah S/N o70cnuD/AUy5WeXl/9E53A **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 RM3,306,161.59. Pengurangan jumlah tuntutan hasil daripada pembayaran balik oleh defendan-defendan adalah peristiwa yang telah berlaku setelah writ difailkan dan ianya adalah sah disisi undang-undang memandangkan pembayaran balik telah pun dibuat oleh defendan-defendan. (Lihat kes Bank Pembangunan Malaysia Berhad v Mohamed Mohaideen b Kassim Mohamed & Ors (2014) 2 MLJ 18). [9] Seterusnya daripada penelitian dokumen-dokumen amat jelas, surat-surat tuntutan telah pun diterima oleh defendan-defendan dan hutang tidak dipertikaikan. Malah surat daripada D1 bersama ansuran bayaran seminggu selepas surat tuntutan diberikan menunjukkan pengakuan liabiliti oleh pihak defendan-defendan. Dari segi undang-undang, untuk memperkukuhkan dakwaan bahawa penyata akaun tidak tepat, defendan-defendan harus mengemukakan dokumen atau keterangan yang menyangkal ketepatan penyata akaun yang dikeluarkan oleh plaintif. Dalam kes ini berlandaskan penyata akaun yang dikeluarkan oleh plaintif, pembayaran balik telah dibuat oleh defendan-defendan dan ianya telah diambil kira oleh plaintif untuk mengurangkan keberhutangan defendan. Dengan itu, tanpa bukti disebaliknya oleh defendan- defendan untuk menyangkal keesahan Sijil Keberhutangan, maka S/N o70cnuD/AUy5WeXl/9E53A **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 bukti keberhutangan defendan-defendan adalah kukuh, jelas dan nyata. (Lihat kes Cempaka Finance Bhd v Ho Lai Ying (Trading as KH Tdg) & anor (2006) 2 MLJ 685 (MP). [10] Yang utamanya, kewujudan dan pemakaian terma-terma dalam perjanjian “dealership” serta “guarantee” juga tidak dapat disangkal oleh D1, D2 dan D3. Kewujudan dokumen-dokumen tersebut terjumlah kepada satu “binding contract” antara pihak-pihak yang tidak dapat disangkal oleh kesemua defendan. Memandangkan kepada kedudukan perhubungan antara pihak-pihak, serta keberhutangan defendan-defendan kepada plaintif adalah jelas dan nyata, defendan-defendan tidak boleh timbulkan sebarang pertikaian kepada jumlah tuntutan yang terbit daripada penjualan dan pembekalan barangan oleh plaintif. (Lihat: Perangsang Dagang Sdn Bhd v Tanjong Teras Sdn Bhd & Ors (2008) 2 CLJ 199). [11] Berpandukan alasan-alasan diatas, mahkamah mendapati tidak ada “triable issues” yang ditimbulkan oleh D1, D2 dan D3 terhadap tuntutan plaintif yang amat jelas dan nyata. [12] Sehubungan dengan itu, permohonan plaintif untuk penghakiman terus dibawah Aturan 14 Kaedah-Kaedah Mahkamah 2012 terhadap D1, D2 dan D3 dibenarkan untuk jumlah RM3,306,161.59, dengan faedah dan kos untuk dibayar oleh mereka kepada plaintif. S/N o70cnuD/AUy5WeXl/9E53A **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 [13] Mengenai isu kos, plaintif melalui peguambelanya mohon kos sebanyak RM3000. Peguam defendan pula mohon supaya kos sebanyak RM1000 diperintahkan. Setelah memberi perhatian khusus kepada fakta dan suasana keadaan kes serta kenyataan bahawa pertikaian dalam kes ini telah diselesaikan melalui satu permohonan interlokutori, mahkamah telah membenarkan kos sebanyak RM2500. Penghakiman terus dibenarkan. Bertarikh 23 November 2023 DITTI Muniandy Kannyappan Hakim Mahkamah Tinggi Shah Alam NCVC 11 Peguam Plaintif - Chow Keng Chin dari Tetuan Indra Gandhi & Co. Peguam defendan – Wan Nor Idayu Wan Jusoh dari Tetuan Adli Aznam & Akram. S/N o70cnuD/AUy5WeXl/9E53A **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

WA-22NCvC-532-09/2022

PLAINTIF 1. ) Kemang a/p Awang 2. ) Jamilah bt Ngah 3. ) Wing a/l Ngah 4. ) Mahayuni a/p Ngah 5. ) Saha a/l Ngah 6. ) Saripa a/p Ngah 7. ) Sarimah a/p Ngah 8. ) Melati a/p Ngah 9. ) Julia a/p Ngah 10. ) Juita a/p Ngah11. ) Hadi a/l Ngah1 2. ) Sakinah bt Abdullah/ Tina a/p Ngah1 3. ) Mariam bt Abdullah/ Yang bt Temakang1 4. ) Mariah a/p Leman1 5. ) Faridah bt Abdullah/ Faridah a/p Limah1 6. ) Nur Azura bt Abdullah/ Lina a/p Leman1 7. ) Nora a/p Liman1 8. ) Kamariah bt Malut1 9. ) Miah a/p Malut DEFENDAN RHB TRUSTEES BERHAD

This Court has considered the facts and circumstances of this case. The submissions and the authorities were also taken into account. This Court orders that:(i) The Descendant Plaintiffs are granted the payment of interest of 8% per annum on the payment sums stipulated in the consent order, to be calculated from 31.12.2019 to 11.4.2023;(ii) The said interest sum is to be paid out of the trust fund;

24/11/2023

YA Puan Roz Mawar binti Rozain

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=e332638c-c674-4c18-b8e4-eea820f0d753&Inline=true

24/11/2023 11:55:10 WA-22NCvC-532-09/2022 Kand. 35 S/N jGMy43TGGEy45O6oIPDXUw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N jGMy43TGGEy45O6oIPDXUw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N jGMy43TGGEy45O6oIPDXUw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N jGMy43TGGEy45O6oIPDXUw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N jGMy43TGGEy45O6oIPDXUw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N jGMy43TGGEy45O6oIPDXUw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N jGMy43TGGEy45O6oIPDXUw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N jGMy43TGGEy45O6oIPDXUw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N jGMy43TGGEy45O6oIPDXUw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N jGMy43TGGEy45O6oIPDXUw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N jGMy43TGGEy45O6oIPDXUw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N jGMy43TGGEy45O6oIPDXUw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N jGMy43TGGEy45O6oIPDXUw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N jGMy43TGGEy45O6oIPDXUw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N jGMy43TGGEy45O6oIPDXUw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N jGMy43TGGEy45O6oIPDXUw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N jGMy43TGGEy45O6oIPDXUw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N jGMy43TGGEy45O6oIPDXUw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N jGMy43TGGEy45O6oIPDXUw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N jGMy43TGGEy45O6oIPDXUw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N jGMy43TGGEy45O6oIPDXUw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N jGMy43TGGEy45O6oIPDXUw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N jGMy43TGGEy45O6oIPDXUw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA—22NCvC—532—09/2022 Kand. 35 2»:/11/2023 11: DALAM MAHKAMAH rmcsl MALAYA DI KUALA LUMFUR DALAM WILAYAH PERSEKUTUAN, MALAYSIA (BAHAGIAN smu CIVIL sun N0: WA.-12NCvC~532-0812022 ANYARA xnunman suurlat «can langsung NGAH BIN BUJANG slnmi, 1. KEMANG am AWANG (NRIC NO: 5312:1475-5310) 2. JAMILAH am new (muc NO: u1umsos»5sss) 3. wmv: AIL NGAN (NR5: N0: o11215~n6~57M) 4. MAHAVUNIA/P new (unit: No: 90122106-5974) 5. sAnA A/L new mmc M0: sznanz-no-5:73) s. SARIPA NP NGAH (mane N0: scum-us.ss7a) fl W 7. SARIMAH A/P new (muc NO: senv2a.as.52u) a. NIELATI A/P NGAH (mac no: n1ns1s-us-um) 9. JULIA up NGAN [NRIC N0: ozunwau-nnut) 1a..Iu|n up new [NRIC NO: o:om.ns.n1su) 11.HADl A/L NGAH (muc NO: nsmoamaus) 12. smum av ABDULLAHITINA NP NGAH (NRIC NO: na12n94Ja-511:) Knumnan saxuriansowa Ian:-mu LIMAN am awnue Iimal mm: 13.MARlAM BY ABDULLAH/VANG HY YEMAKANG (NRIC no: 59123145-scan) 15. MARIA A/F LEMAN (NRIC NO: 7s1z31—oa-573:7) 15.rAruDAn :7 ABDIILLAN/FARIDAN AIP LIMAM (NRIC NO: s1o915.as—5sse) 1E.NUR AIURA 31’ ABDULLAH/UNA A/P LEMAN (NRIC NO: 371211-05-sun) fl W ‘In any pnocssdmgs tried /11 any com [or the recovery olany den: or damages, the cam may, rm mink: m, ordarthlr Ihdru anal: bi Included m m sum [or which judgment Is glvun mtsvesl as «on rare as n Ihmks m on the whole or any pan or me deal er damages for me wnooe or any pan olme psllod Delwesn ma dale when me cause olnctrwv am: and ma dale ol me judgment - [1 4] As In how much mteresc, Ims com awards mleresl in the sum ev 5°/. pev annum on me sum In be pmd. |a ea celemmed hem December 2019 un|H M 4 202: ms u premised on su cm: Law M11956 whwch accorded me some me power In award Interest on dams and damages and also Order 42 Rule 12 Rules ofccun zmz Tms ceun considered one Practice Dvuchun M11 0! 2012 men was mgnngmed by me Dsfnndlnl m uskmg w an an, In. mares: ram 04 5'/. pev annum m this case. mats are me tamer: cl me nardsmp sufiered by me Descendant Plaimms Mnreover, me Inleresl rave eta"/. psrannum was am me figure lhe Cowl oi Aoeeal Md wrnpwnd m we order and amrmod by me Federav oeun [15] ms com noted ma: me Descendam Plamms were deemed ni lhavrentmsmentover a subsxanuav penud emue. Taken m|c eecoum too, were her: max they had lived Vn diva sueics mm me movamml mnnvl u xuw i51:.“"s’.‘niF.‘E.“aEZfS§R?.S‘§.'2aeWW...mm.u.y.,~.m.m.a.m...e..Na we order 1112020 as a nesun on nna covnnn 9 pandsmnc and me floods in 2021 men may had lnved wnlhoul any nneoma This Court nl onnnna cnrnsnderad View nnnan n ns an Vanr and muanabla no under such nnnarasn an nne vale an 5-/. pa! annum. See am VI]nyKunI.lI mm-uan v LIOL Crodlr Sdn Bhd [2013] 9 cu 374 and Vamennurthy Ammugam 5 Ana! v RS rnanemhrnnn Rlman Kunry 5 Anal [2019] 2 Cu 132 [15] me Desaenaann Planrnmfs had saugnnman such paymernllcr mneresn be Paid lmmms Defendzrnlllssllcnmtendnng nnnanma Defecndanlaslmstee ougnn no have reserved nnna manner wly back nrn 2019 no ensure paymenns are made In than orang Asfl named nu ma Fnrsl scnneauna nu ma nrusn new and Itnenrlnneal uescanaams. n was submmed man n| would he must urnlair for line nmsn mud no snflerdue no me nan-pernunuance or name no dnschange aunnss bylhe nmenaann as lnuneas. [171 In I: true man me newanuann Pnannnms could have been saved vrum nhe trouble and expenses of (Inns lingalnorn « me Defendant had naken amms lo nook nurnnne Ducerndann| Pnamnnnr: The ueramann had axpiznrnad man (he mam pannl otoommunnaannon was nhmugh nm ‘Tak Bann‘ 07 each vnnnage For the December we meelnng, nnne Denanaann wnnmaea man my rm: Inn knowledge man the Descendarnl Pnannws had moved lo Rompnn Pannang ind lhus was nan abna no sapannany nanny mum When u mam 31555 5ocunPDxnm «ML s’.‘n.n...n.Zfwnnna.n..aamy...mnnn-y.mnn.ana.n.m..mNa W me Duanaam found outlha| Ngah bm a-gang and an hm Bmang had passed an, the monthly naymems made smee men were slowed smoa yr was not aura lu vauvy my direct lmu\ a-mnaanc: Eul is man as may naa veoflxnd mam as a result of «ms auil, me Delendanl had any agreed u: make paymems as evident (mm me consent mgmenx [151 We trust and empowered ma (runes m was: monaya as aulhonsed or pennlltaa under me Trus|ee Aa1QJ9 Clause 7 4 anus «rust deed nsxea me powers‘ aumormes and dlscremms vested in ma Dlfendanl mm inchme. arnongu umsrs *5) Generally deal mm mm fund. to ssl/, call m and mm/er! mm money, glen! aaaiona oi rrghfs lo pulchase or atherwrss dual mm drspose 0/. or lrnnslar any mm or assets ccnlpvislng ma wnara or any pan or the trust Iund at omerwtsa held by me Iruslaa: under my [arms arms Trust Inr such consioeranon and on such lsnns as /n [heir drszxeflon they deem m a) Real pmaany m lcqmra, Impose ol, etchings, charge, suD~ charge, lease, Iel gran! release or vary anyrfglll or easemsnl, or olhsrwtse deal with real pmpeny 0! any esisle or mterasf (harem 1: man 3155: 5ocuwDxuw «Swat. 3.1.‘ ...u.Z,‘wn.,.a......1n...,....mn.u-ym. dnu.nmlvnnF\uNQ v-ma! u; Personal pmpern/' to acquire, msposs of, excr-arm, him, (sun. lat, churyi or omorv/Isa doe! wan personal propuny nf any x/nu. rt) To Is! In lease and rat promvry Iarnung pm offhe lrusl rund or now by tho Truslus Pdlfxuanl (0 ms prwrsrorrs oflhrs Dnd Ior such psnoa at sucn rental and to any persons upon (arms and wnmtrnns as me trustees aecms, and to accept! slmvndum fmm mska anowancos to and arrangements wmv luau at lunch! as ma Truszm asam M e) Engage experts. employ or engage agents or pralsssimvals m the exaculrwv of the mm: and pawcrs /nsland ol uclm pmonauy /rorn rm (ohms. lo lnwlayoionglge unu pay out Me Irusl mm such managers, agents, advisers, sorrcrmrs, auditors, accountants, brokers. surveyors or ornsrpmnns Ia rrslunct any human or to do any act recurred to be dorm n eonnacban Mm the Idmrrlrslralrcm anhe mum and to ac: upon (ha uplmon or name of any such person wrthau! being nrsponsrme for any loss ur damage occasnanea by aclmg m lcuordunce Inarumn; sru EM 3155: fiocuwnxuw «ML Syn?1I\nmhzr‘wH\I>euIedIx:vsflylhenflmnlfllyMIMIflnuamnlvnnF\|.INfl W n Pzmsrlolsndfi-1/end monies rmnmg pad ollhe my fumior gin arm!!! to any pinion on such (arms as may mm expcdranl and m pamcular, but wvihour nnnung mo gonsramy 0! the roragmng In a Dsnelrcialy or peison having an mlsresf, actual or canlmgem Any mch /ending or gnnng of C7241? may be mad. at cm: or M no VIIIVBSI and may mvolw taking or securfly rn an y Iolm whatsoever mm or wulmm security, ,7; Bank accooms ro apqnin the name omn Trustorm mo/arm namfis chm Tmslns lny cnoooa, savings or ulnar account wlln any bank or nhancm: msdlluvon In Malaysia as me Tmstess thmk my mm M poww ta operate on any such acooon: Including, but whom /fmmng the gnnsrl/rry or the Iurogomg, powtr to non, drnwn and endorse chequu and other negooamo or transferable mslmmonls on any such account and to close ms same: h) Managamanl axpcnsu. to pay out 0! Mn (rust tuna or (he mmma memo] all mm, memos and expenses mcuienlal lo the management of ms mm lund or to ma exerasa of any powsr, mnhonly or dvscrelron herirn comlmod or m canymg 15 sm on 3155: 5oau\PDxuw «ML s’.‘n.y...n.Z,‘nu.,.o......:my...nnnn-y.,~.n.m.n.m..n..na on.‘ aul or pedovmmg me trusts ollms deed which me Trustees conxfdsr appropnan n; Ganaral expsnsur in pay Insurance pmnmns, (ates ram, renls and nulgomgs m canned/on mm real or perswval pmoeny onne bus! fund, to manage such property and em: mparrs lherila as the nu.-mm may contain necessary and semen: wnm the Tmstees are uname to charge such sxpemmurs against meme 0! me mm Ium1 they snarl be at I/Deny to resort Ia ms Camlal. /) coopoms sewn!/es. wnn respecl to any company In Much the Trustee: holds she/as stocks debentures Izpllons mnvsmo/a notes 0! rs otlverwisu myemm oi cancemcd (n this aubc/aux: eallbd ‘SncuImes) to sxsrdso the followmg powcr: m addmon (0 power mnlewatl by law .1 In pay calls an secunnss or perm Sacmmas 10 be forfeited and sold 11} lo pulbhssa Secunns: and rake up Secunhes ole new issue’ sm an 3155: fiocuwnxuw «ML Syn?1I\nmhzr‘wH\I>euIedIx:vunymenrwhlfllymlmldnuamnlvnnF\uNfl W m; to arvenu msehngs personally or bypmxy or a.-ramsy or reprasanranvs and Vols at the mscrenon oflhs Tmslus. M to sell Securmas al sum pm and won such lsrms with or wnnom secunly as me Trustees rmnk NI, y) to men: Ia at /om In any arrangement I9/almg to me sols, hansler or exchange olany securmes urmod/lying any nghts‘ pnvf/eges an rmereas m relabon lhsnito: to agree In any scheme olarrangsmenl my the inmm or muumon ofme mu 0! amounls 0/ an y shuns or slock or om: caprtsl of-my company in which the Sscurtlins form we whole alanyparf aims trust fund or by wmcn any such Sncumle: an xubsltlutsdovgrvun in exchlnga miner who/Vy wpanly laminar Sscunlres, whether m the same company or no: and for any such purpose deposm surrender or exchange any saw or documents of M/s mmnng memla: to pay out aflhs came: of mu truniun-1 or property held m mm, pursuant to me pm»/ism»: of this deed, or the moo/no lhaleal any aontnbulmn mum any axuense m colwsclion mm sucn scheme or anangemenr andgonml/y lo manago and deal will any 17 3155: aocuwnxuw «‘»’51:f"s’.%.y...n.Zfnm...mmy...mn.u.y.,~.n.m.n.n.y...n..na W sum Securmes as «me Iruslea: ownsd me benaficralfy, and ya to agrae In nespec: al nnnmng up mm ma nqmaarur 0/ (he company or any member of the company or any other Person In all Ihings as the Trustee: shall lnmk m for the dlwston ovplrtlban rn kmd or spade olmo nsssla orpwpsfly olwnoevernaturs oilhe company, toacoepl any such asseu and pmpeory In payment or saamacmn or any mlomsl or [he rmuaas m the complny wnn paws! :9 pay any mama: by way 1:! aqua//ty oldmsoan or pamnon. k] Um! mm mzerssls‘ lo acquna mm or sun-unna arany find or llexib/9 mm mm whatsoever allher by way 1:! applrcabon pumnasa or by way at sememonl by Me Trustees in the asfalzllsnmem‘ oi mn um! nus: am: to exenjse au ngms nnuuurng votmg ngms and puriorm e// obltgalrona as a Iroldlr 0/ any unfls III such mm and lo accspt an mammmons By the trustees a/such um! mm: as fncomo or cspI(a/ ai the ma: fund an an 31555 fiocuwnxuw «ML a’.‘n.n...n.Z&na.a..aamyn.anmun.,~.n.a.a.n.n.y..n..nn W r) Mamlsm pcapeom Io marmaln and preserve in good and subslarmalaldov andfoodcondmon Isa/orpevsana/prupeny arm. trustlurmorotnsrwru may by me rmreos under the terms olthvs -my and In any or delay the aosls memo/; m) Tms1sts’powo! to deal Mm mm rlotwtthsllndmg any rule or law or aquny to ma contrary, me mm»: whoa re mpresemsmes a/me mmmunity may acwwe any property 0/ me mm /una, mail or personal property, Mr»: bensf/eta! mlaraslm whrch rs mm dale ofsuch scumsman lho Ibso/ulu pmosfly al (ho nun‘ PROVIDED mu any pmpmy so acqmma /o( a oonmsrawan being not lesser man me market mus.’ [191 M such um: Counlaku wmvm Ihzt |o emev me mlarasl ml 3"». per annum on me payments reamed in be pad by the Defendant to me Descendant Pia-nmrs (obs pewd fmmlhe|rus1Vund does rm pmudwce me trust or us benefiuanas ms Court apms mm in cm: mlunca‘ wt .5 ramo amor 30. Thu oensenl wdgmenl was execuhed an wmmm admission m Iismmy basis. Reqemnoes was mama to aungsamm Moldings Sdn and v Damnntlrl Rnlry and [ma] 4 cm 429 and Lim Kar Bu v Abdul Ln IIbinInmIII|w76]1 ML! 109. is sm EM :nG5Ey45oca\PDxuw «ML 51%.‘ nmhnrwm .. HIGH m mm .. mmuny -mm: dnuumnl _ mum W [20] In mus Court’: asessmanc M mama: to aHow ms Dssuendanl P\a|n(Ms access (0 aH details/awwnslrloemk/payments and/or slalamems om: aocaums oflha mm, mm Court mgaldefl clauu a anhe |n1stdeed(hiHpecmmlly mqwled me Defendant — “em /n aacn nnanam yosrlhs Trustees shall haw prepared by a meme pubhc aucourllum aullronud Io Dfacdlsa In Maraysm finsnual statements, mcludmg a prom and ms aceaunl and balance mam as at and areas» finsnaal year cemfisa by such Iccmmlenl In no mo and prayer state/non! o/ma allnlrs arms trusvsenmg out all a) /ncome of me my /Amt!‘ b) capuur Mme mm Vund. 1:) com disbursement: and other alltgomgs pm at paysua out or me trust fund and chargeable against income. :1) capunl axpanmmre and /mbr/mos margaaore Io capers/, .) mvsszmems and money eompnsad m the ma! Iund. 4 Amount: msmnmu by/the Trustees to ram bansfizlary, 1» sm 5My4:nG5Ey<5ocuwDxuw «ML sm-w nmhnrwm .. HIGH w my .. mm-y mum: dnuamnl VI mum W 17. NORA A/P IJNAN (NRIC No: m2:1—us.sssI) Knumn-n nx-um mm Iangs-mg umuv am 1uMPAr Ilmall, lallu: 1E.KNI|ARlAH ET MALUT (mun N0:W112B-fl6<515fl) 13. mm A/F MALUT .. . PLAINYIFFS DAN RHE 1RUSTEE5 seam» Aknnlrvlllon No: znnzotonszse (571019-U)) [PomlyIng Amamh ktplda Llnuaiu v-my orang Asll (JAKUNS) Trust] DEFENDANT Juncugm [1] On 1142023 [ms Cmm recomed a mnsenl wdgmenl lhal confirmed an ma Pvamms above mm the exnepnon 01 me Fvsl and Thwleenlh P\a|n|rIfs am ma Imam daszenflams m Ina Pemegang 3 m GMy4:m3GEy<5D6awDxuw «ML smm n-nhnrwm .. LAIQ4 m mm .. mm-y mm: dun-mm VII mum W g) To the extent ra which one trustees may nouns. me separate rseovdrng olany category ofmcoms oicapiisl 5 2 rue muses man a) eslah/rsh and msinlam proper accoums m book or compular rmm wmch shsu accurately may all ncsmrs -mi uutgamgs m n/-non ta my my lund, n) sepsratsry recorv moms and capnar al Mama: clfsqones as an prowdsd by ms dead as ms rmsms may deems - [211 The nevenuam Is definitely under a duly lo keep me amounts The submvsslons or (he Dascandzm Fluumfls cilsd the cases M D-may-nu‘ Knmllnl now a on v Jlglrlal Kmmal Dash! 4 Dis [1994] 4 cm 81 and Yvonm Wong Yze Woon v Wong Ye: Mei A A [2022] 5 cm 736 Hnwavev, unnkeme racrs in sunny Lav au Ch:-mg 5 Drs vKaniwlui sopuumnninm 5 0/5 [20:01 5 cu :47, (ham was no evidenoa um lha uevenaam had wacxea aowumabmly 0! me account: or Ihara were no propel keeping cl moms sm ‘5My4:nG5Ey45ocawDxuw «mm. smm ...m.mm .. U... m may he mmuny -mm: dnuumnl Vfl mum Wm! [22] In tn-s tnstant ttns court tsoflhe oonsiuetea opinion Ihauhe IeqIIes1 sougm us not reasonable ene pruves Inc onerous on me ueteneant me Cnurl does not see me neoasstty tn gvinlmg nucn ardsrs Thole mama requested would not serve any more at a purpose tnan Ina yeatene rtnanoet statements tnat are mandated to complete. The nesoenaant Plztnhfls nao not demonstrated Ina need lcrsuoh «owns [23] on me nests or fetmess, tnts court orders tor the Imanctai statements «or tne years ended 2019, 2:120, 2021, 2022 prepared by Ihe oettmad Duhlvc acwunl3n| to be mnnsneo to the Deseenuant wtatnmvs Yhuse, tne Detenaant I5 reounea to tunnsn wtlmn seven days at me oate ol tnis yuagrnent Wgaumumz [24] ms Cour! nas consvdeled me lzcls am urwmslanoes owns case Tne submissions and me autnontts were also taken unto account. This court order: mat: to The D9scant1an|P\atnI\fls are gramedlhe payment or mleresl ot a-/. per ennum on the payment sums s11nula|ed In the eonsont om. la ha eateutetoo «mm 31 12 2919 to 11 4 2023. 1: sm EMy4:nGEEy<50cewDxuw «ML s.n.t ...n..mn s. u... e my n. onmnnuty -mm: dnuamnl VI munn W The said imeresl sum 13 no he paid am ollhe Irusl fund‘ (mg The Delendanl 5 In lumvsh in me oemsnaam Plamfifls me Manna‘ aewums fur ma flnancia\ years ended 2019, zmu‘ 2021 and 2022 prsnared by his ceniflnd aocuunlam wilhm sevln days cum; dale nilms wagmnnn; my Noorder as In msm DATED 25 OCTOBER 2022 R02 MAWAR ROZAIN JUDICML COMMISSIONER THE HIGH couwr or MALAVA AT KUALA LUMFUR For me P«a«nm; GK Gemsan, TA Srvam, K N Geotha and Rabash Abd Hahm, Farllharv mmm T/n Rama Farman & sum Fov the De/emam Kenneth Koh toga!/la! wrm Peon We! wng T/n Xawsr .4 Ken Pnnnenmp m ,5My4:nG5Ey45oau\PDxLm «mm. smm ...m.mm .. U... m may he mmuny -mm: dnuamnl VI mum Wm! Amanah kepaa: Linggiu Valley Orang Asll (JAKUNS)TmsI (me Tmsl) In brlel. me uunsern judgmenl raocraed mac lm Defendanl ls lo make me lollumg payments (3) RMl23,non collecuvely to me Ssmnd tu me ‘rwelm. Plammls wllhlrl lmrly days from 24 32023. (Is) RM\23.00D colleclively |o 01: Fwrleerlm to me Seventeenth Plamws wlmin miny days from 24 3 2023, 1:) RMl2a.ouo cnllecllvely In me Elgmaerml and Nlnmaenlh Plalnnus [21 Pu-suam |he1a|o, lms Courl heard irqumlnls on Mlathar was second |o lwalnlx Flilnms and the Fauneerllll in me Nlnalaemh Plamlms (oollscnvely referred |c as me Dewendanl Flalrltllfsj were enlllled la mleresl on me ourslsming naymerlls Thai lea la me argumen| 91 wnecmr, muln ml. Cunrl mla man lnleruu mul| be pm‘ ll ll lo be can oul 0! the rmsl m by me nelenaanl should mls Cowl lule lnal me Descendant Plalnllfls are enmled la the paymenl or lnleresl There is alsa ms issue mwnelner me Dsacsrldanl Plaintiffs are enlmed to have ice»: to ma exact aelallslawounu/reoelpl:/naymmls Ina/or slalcmems ol Ill . m ,5My4:nG5Ey45oaulPDxuw «mm. Smnl ...m.mm .. U... w may he mm-y mm: mm. VI nFluNa Wm! accounts M ma ‘nus: prepared by Mr N; Eng Kial ol Folks comma Services Sdn and ham the year 2009 |o 2:119. rna mm [31 The backdrop of (hi suil ocnoemod me Ivraumaru amam mm between me John! scans Govammenl and ma Gnvammeul av smgapora around 1990 forms conscmcnon of a dam at Sg Lmggm nalehmenl area lorme supp\ya1wa|erlo Jomr and Smgapon The S9 Lingghu cahemuam are: comprised of savarzl vhnagu, Imonn mam Kampcng Sayong Fming. Kampung Paw Assam(PasIr Inlsn)am1 Kampunq Semanggar Da\am— ah oocuphsd by the Orang Ash Ancluded Ine Plamnfls and/or mew ancesvurs [4] ma Government av Singapore aahs apgroxxrnalaly RMa2u,uao,ooo to me Johar Stale sovammanx, For me canscmchon of me dam, me Omng Ash had m be evxcxsa la grve vacant possession oflhe land Legal acnun anlued 5! me Johor Elhm mun Ooun by me Oranq Aslx who ware uapnvaa aflnenr ancaauar wane and uamuanan vesources of man land and hvelmuod. The Jumr Bahru Hwgh Cmrl an 19.121995 gave judgment m favaumilhe Orang Asll In me sum o1RM2E,500,D<JD.The Cowl amapaah alfirmsd me mm daemon on 19 11.1997 mm an nddmonaI8% m|ems|nn 5 m ,5My4:nG5Ey45ocuwDxuw «mm. sm-1 ...m.mh .. med a may he mh.h-v -mm: dnuamnl vn mum v-max me judgment sum The Federal Cam In mm had amrmed mac daemon on 21 3 mac [5] In tsapunss 1n me apphcauan by me Oring Ash lo manage me said judgment sum, «ha Johor Bahru High Courl on 562000 ordered (lrusl omen. amungsl others. my me John 5va|e Govemmsnl Is In pay me |udgmen| sum wnn Interest ov a'/. per annum from 4111594 to 552uu4 — ' amounted la RMa4,55¢,111.s2, 111) RM221ooa,ooo1mmma1sa1a amount wast» bevs1d1n\oa lrusl aomum and a trust he established under me name av me Lmgglu Valley om-g fish (JAKUNS) Trust‘ (c) The mm was 1:: beesliblished in we term as parmeuusn deed and Is amanflud by me (arms alIhelr\1:|ordm. (.17 The bawznoe or RI/116,554,111 92 wil |o be msennucaa 1.: ma Orang Ash ans: aenucnmn for legs! fees. costs, mnsunauon lees and exnsnses mwrred rN15My4:nG5Ey45ocu1PDxuw «mm. s.n.1...m.m111... .1... 1: may 1... mm-y -mm: dnuamnl VI .mm v-max [5] on me even cane. me mm deed was usculed Amongst me terms were that me Orang Ash and lherr dtsoandams were amnlad |a paymlnl o1RM9au per -nonm.an-1 max no chxlddascundam shall be sumo to my mm nr anumuuan dunng me Iflehme -21 ms pamnl The nruwaas (Mu cl me headmen uflhe communmes resudmg in Kampang Paar/csam lFasIr wan). sayung Pinzng and Semanggar‘ me Duacmr General 0! Jabalan orana Aslv cw mung |o accept lhu omosj me am olhur mdependlnl person) shau have prepared lay a oenmea pursue accuunlanl eamnod finanual smamams m each finanaal year They snail asxa Ish and mamcam pmpa aowunls IVI hook orcompmanonn which man acouramy record an mcswms and wlgmngs. moama ana capnal m ralahon In ma mm tuna. [7] smea ma inception of the trust unm zoos, mg apptfintad mmax trustees ma made mommy naymenls an mam mommy la Ina uenenuanss at me uust Hmwever, m aany 2009 some 91 mam (not any av Ihe P\aimMs m [ms sun) Inmetad a suwf at me Jahor Bahru High Coon In suspend me vustees and appolnl HSBC Yruslees as new lrurlaas at an mm. an an 31555 fiocuwnxuw «ML s’.‘n.n...u.Z,‘wn.,.u...aan...nmu-y.,~.n.a.a.u.m..n.nn W [3] on 17.4 2009 me Jomr aanm Hrgn Cowl granted the sand under and suspended me mum cmsxeos. Na Eng Kual was appointed as nac r and manager at mm mm tunds [9] Mg Eng Kxat pervmmed ma dunes unm 17 1.2019 when ma coun dc Apneav removed nun and nrdsmd mu HSBC Tmslae assumed Ins pdsmon onmsrea Ior me mm However. HSBC Trusnse decnned Tne mailer men was naqemad back to cum and on w 3.2019, the neaandant was appomled as Ihe new kustee at mu (rust An nsnns ll’! ms m-dais M Iha mm order and Cowl u1ADI>ea\ mder mnosd ma uevsndsnx [10] AI me begmrung of its tenure, ms Delendanl discharged us dunas as nnmees Tnsrs was an mv1arma\ meeung m December 2019 bttwaen una G Rauumaran whc claimad up have npmsanlad the Delondanl and some :1! ma bsnanuanes onns cmsv. wun ens Salmg mn Lau Bee cmang suggesxsd mau payments |a me P\a\nI1Ws uugh| to stop as may have nnwed to Roman, Panang Tns Dsfenamt men suspendud psymsnxs to (ho P\a\n(IN: mn no pncr nouns ar expiananen Hence ma hung at his am! on 25 9 2022. Pames agreed In a cdnsem judgment on 11 4 2m. an an 3155: aocuwnxuw «mat. s’.‘n.n...n.Zfnua.d....amy...nanny.,~.n.a.a.n.m..n.ns v-max nre rmst Bud [11] Yo aatuarcatn on the two matters outstamtng — me uuestron or interest and whether the Ptaintma are enttttea ta access to ma arranc-at accounts, this cottn am refers |u me trust deed It annuemed 52 Orang Ash vmose names appeared In Ihs First Schedule ta me trust deed They wove heads at Ihenr raspnetwe tarntttes in men ttuae are-s m me sg Linggtu catchment area. The RM22yUOu‘aW was In be kam tn trust lat (hem, men rmmearata Iamtnes and Ihereafler Chev! aamendants It was ctsarty stated ttrattne beneftcianes otttre trust were them and -me» amt /t‘n¢a/ 4-sc-manta’ unaar dawn 2 [12] The paramount dtny Mme trustee as pmvlded tar by the tmat deed is |c pay Rmsmo per month to eeetr tmttose Draw Aslt named In the Ftr$| smaaute. ctauae 4 2 ts rvpvoducad rveratrv “The Trtalees shall each month, tlll/ass vanea by an Order ovtne Cowl, pay a sum of menu so to each P/aumtr om afllts trtcome ollna mat mm: Ind VHIIB mcoms be msumr.-lent, the Tmstels may nsson to me Central to make such payments. am am 3YGEEy4506u\PDxuw «ML s’£‘t.t ...t..rwm .. t... In mm .. nflmnuflly mm: mm. VI nF\uNfl vtmxt Pmvvded mar upun the deem olany mime Prammv, ms share shall be part! to ms /meal usscsndam, and Ifman: man one, m equal snm nllna nmourvl paylbls la nu orlhsrrnurunl mnon /NW9.’ [13] Yrus Court cancmau max me netenuam as cmscee oauld ml slop any mummy paymIn| whawaever unless me cuun mans so When (he oerenaanc hahad piymenls -n Dncarnber man, we Descendant P\aimMs were deprived allhelr ngms and emmemenuo me moneys due unm Apnx 2u2a when the Oonssm Judgement provides (or me payments 0! 3H moneys due As such. mu Sacond 4» «he Twemh Flamws and ma Fourlnnm to me Mnaxsemn Plalnmfs an enuueu lu unxamsx on ma ounslandmg sum Vn me case o1 Golden sun A on v Llm Pun Mae 5 Anal 5 Another Appnl [zozayc ms was. the com o1ApveaHmmd' -172] m nny mm we lmd that sncuan mm mm on/:1 Law Act 1956 (cm) mnlecs upon the cam me paws: and dlscrevon to order mtelesl to nm from on «ma when an own cl miun arvsv In In action for dumagcr rms was my cwmdlvsd by mg HC and mused was ordnrsa as was Ths alamsam provfsoan states" sm an :nG5Ey45ocu\PDxuw «ML s’£‘n.n nmhnrwm .. HIGH m may .. mm-y -mm: dnuamnl VI .mna W

Tika 2.6.0 & Pytesseract-0.3.10

WA-24C-24-02/2023

PEMOHON KEY PROJECT RESOURCES RESPONDEN CHONG CHOOK YEW SDN BHD

Enclosure 1. The Plaintiff herein had applied under enclosure 1 of the Originating Summons (Enclosure 1) pursuant to section 15 of the Construction Industry Payment and Adjudication Act 2012 (“CIPAA”) for part of the Adjudication decision dated 27.10.2022 (AD) be declared null and void and set aside

24/11/2023

YA Tuan Nadzarin Bin Wok Nordin

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=51fb0d7c-43d5-4947-9b7e-861672646d77&Inline=true

Microsoft Word - 37. Key Projects v Chong Chook Yew Sdn Bhd. S15 CIPAA - appeal 1 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM NEGERI WILAYAH PERSEKUTUAN KUALA LUMPUR (MAHKAMAH PEMBINAAN) SAMAN PEMULA NO. WA-24C-24-02/2023 Dalam perkara Adjudikasi di bawah Akta Pembayaran dan Adjudikasi Industri Pembinaan 2012 di antara Key Project Resources Sdn Bhd dan Cong Chook Yew Sdn Bhd Dan Dalam perkara suatu Keputusan Adjudikasi bertarikh 27.10.2022 yang diisukan oleh Adjudikator Encik Foong Chee Keen Dan Dalam perkara Seksyen 15 Akta Pembayaran dan Adjudikasi Industri Pembinaan 2012 Dan Dalam perkara Aturan 7 Kaedah 2 dan Aturan-Aturan 28 dan 69A Kaedah- Kaedah Mahkamah 2012 Dan 24/11/2023 13:18:20 WA-24C-24-02/2023 Kand. 37 S/N fA37UdVDR0mbfoYWcmRtdw **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Dalam perkara Aturan 92 Kaedah 4 Kaedah-Kaedah Mahkamah 2012 ANTARA KEY PROJECTS RESOURCES SDN BHD (No. Syarikat: 1069546-K) …PLAINTIF DAN CHONG CHOOK YEW SDN BHD (No. Syarikat: 5215-M) …DEFENDAN GROUNDS OF JUDGMENT (Enclosure 1) [1] The Plaintiff herein had applied under enclosure 1 of the Originating Summons (Enclosure 1) pursuant to section 15 of the Construction Industry Payment and Adjudication Act 2012 (“CIPAA”) for part of the Adjudication decision dated 27.10.2022 (AD) be declared null and void and set aside for the following reasons:- 1.1. This Application by the Plaintiff is made under Section 15 (b) and (d) of the Construction Industry Payment and Adjudication Act 2012 (“CIPAA”). 1.2. The Adjudicator erred by exceeding his jurisdiction when he gave an extension of time to the Defendant to serve the Adjudication Response out of time from what was provided for in the Construction Industry Payment and Adjudication Act 2012. S/N fA37UdVDR0mbfoYWcmRtdw **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 1.3. The Adjudicator erred by declining to exercise his jurisdiction by refusing to consider the application for extension of time when considering the Plaintiff’s defence against the Defendant’s claim for Liquidated Ascertained Damages (LAD) as a set off against the Plaintiff’s claim in view of the fact that both the Extension of Time (EOT) and LAD are closely interlinked with each other. 1.4. The Adjudicator was in breach of the rules of natural justice by not taking into account the issue of vacant possession when considering the claim for LAD by the Defendant. 1.5. The Adjudicator was in breach of the rules natural justice when he rejected the submission of documentary evidence by the Plaintiff for the Penultimate Claim without providing any substantive reasons. [2] The part of the AD which is sought to be set aside is a. the part of the Decision that allowed the Defendant to serve the Adjudication Response out of time beyond what was provided in the Construction Industry Payment and Adjudication Act 2012 (“CIPAA”); b. the part of the Decision that allowed a set-off for LAD for RM1,178,000.00; c. the part of the Decision where the Adjudicator dismissed the Plaintiff’s claim for the Penultimate Claim; d. the part of the Decision where the Adjudicator declined to exercise his jurisdiction when he did not consider the application for EOT by the Plaintiff; and S/N fA37UdVDR0mbfoYWcmRtdw **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 e. the part of the Decision where the Adjudicated Amount to be paid to the Plaintiff was RM140,591.79 with simple interest. Background Facts [3] By a Letter of Award dated 15.02.2019, the Defendant appointed the Plaintiff as the Main Contractor for the Demolition Works, main Building Works, Mechanical & Electrical Services and External Works for the following Project (Project) referred to and defined below: “Letter of Award for Cadangan Tambahan Dan Perubahan Serta Menukar Kegunaan Bangunan Kediaman 4 Tingkat Sediaada Di Atas A) Lot 9378 (Fasa 1)- Tingkat Bawah dan 1 Dari Pejabat kepada Retail B) Lot 9379 (Fasa 2)- Tingkat Bawah Dari Pejabat Kepada Retail Jalan Langgak Tunku, Bukit Tunku, 50480 Kuala Lumpur untuk Tetuan Chong Chook Yew Sdn. Bhd.” [4] The Project comprised of the following components: Fasa 1 Lot 9378 Blocks A & B Tingkat Bawah Dan 1 dari Pejabat kepada Retail Fasa 2 Lot 9379 Blocks E-K Tingkat Bawah Dari Pejabat kepada Retail [5] The Project commenced on 18.02.2019 for Fasa 1 (Blocks A & B) and 08.07.2019 for Fasa 2 (Blocks E-K). [6] With the issuance of the Certificate of Completion and Compliance (“CCC”) for Fasa 2 on 23.11.2020, all works for the Project had been S/N fA37UdVDR0mbfoYWcmRtdw **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 completed save for 4.5% of minor works which was completed on 23.4.2021. [7] There were delays in the completion of the Project due to the circumstances beyond the control of the Plaintiff, amongst others, the Standard Operating Procedures (“SOPs”) issued under the Movement Control Orders arising from the Covid-19 pandemic, numerous variation orders issued by the Architect which increased the scope of the works and insufficient number of days approved under the applications for extension of time (“EOT”). [8] However, all the works for both Fasa 1 and Fasa 2 were completed, and Payment Certificates were issued accordingly. [9] The payment received by the Plaintiff was RM14,585,944.06. [10] The Defendant still owed RM2,447,170.59 which comprised: (a) the Outstanding Amount for certificates 15 to 20 for RM1,364,170.60; (b) balance of the Penultimate Claim for RM632,999.99; and (c) the 2nd Moiety Retention for RM450,000.00 which was due on 30.102022. Courts Analysis [11] As a starting point I would like to reiterate section 15 (b) and (d) of CIPAA which states: S/N fA37UdVDR0mbfoYWcmRtdw **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 “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.” [12] I will also refer to Order 69 A rule 3 (1) (b) of the rules of Court 2012 which provides: “(1) In every application to set aside an adjudication decision under section 15 of the Act, the originating summons shall, in addition to the matters stated in subrule 2(1) (a) give details of the adjudication decision challenged; (b) identify which part or parts of the adjudication decision are challenged; and (c) specify the grounds on which it is contended that the adjudication decision should be set aside.” Preliminary Issue [13] On the preliminary issue of whether the above section allows part of the AD to be set aside, it was argued on behalf of the Defendant that the said section does not permit for an AD to be set aside in part. S/N fA37UdVDR0mbfoYWcmRtdw **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 [14] After going through section 15 of CIPAA and Order 69 A rule 3 (1) (b) of the Rules of Court 2012 in its entirety, I am satisfied that the said section is silent as to whether the AD can be set aside partially and in the circumstances I hold that as the said section 15 of CIPAA does not state that the AD cannot be set aside in part and in the absence of such express words prohibiting the setting aside of part of the AD, the AD can be set aside in part. I am also of the view that Order 69 A rule 3 (1) (b) of the Rules of Court 2012 support that proposition by the words in sub rule (b) of rule 3 (1) when the words ‘identify which part or parts of the adjudication decision are challenged’ implies that the AD can be set side partially. [15] I am thus in consonant with the decision of Lee Swee Seng J (as he then was) in Emerald Capital (Ipoh) Sdn Bhd V Pasukhas Sdn Bhd And Another Appeal [2018] MLJU 440 that the AD can be set aside in part. Substantive Issues A. Jurisdictional Challenge & Error in Jurisdiction [16] I will now deal with each of the said issues in support of Enclosure 1 with the first issue being whether the Adjudicator had erred in his jurisdiction when he gave an extension of time to serve the Adjudication Response out of time from what was provided in CIPAA i.e after the expiry of the stipulated 10 days time frame as stated in section 10 of CIPAA. S/N fA37UdVDR0mbfoYWcmRtdw **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 [17] With respect, I have noted from the AD that the Adjudicator had sought the views of the respective parties on this issue and I accept that section 25 (p) CIPAA gives the Adjudicator a wide discretionary power to extend time. I also hold that the said section does not only take effect where there is an application for extension of time to serve the Adjudication Response is made before the expiry of the time line, as contended by the Plaintiff, as the said section provides that: “The adjudicator shall have the powers to:- (p) extend any time limit imposed on the parties under this Act as reasonably required.” [18] See also the case of AMT Engineering Services b Ah Design Communication Sdn Bhd And Another Appeal [2018] MLJU 1860 where a similar decision was made on the issue of extension of time line. It is thus my decision that the Adjudicator’s power to extend the time under section 25 (p) CIPAA is equally applicable even after the expiry of the stipulated period in section 10 of CIPAA as section 25 (p) CIPAA gives the Adjudicator wide powers to extend and regularize time. [19] I thus hold that there is no breach of natural justice in respect of this issue and that the Adjudicator had not acted in excess of his jurisdiction when he gave an extension of time to the Defendant to serve the Adjudication Response. Delay [20] The Plaintiff had further submitted that the Adjudicator had declined to exercise the Plaintiff’s application for EOT when there were delays S/N fA37UdVDR0mbfoYWcmRtdw **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 in the completion of the Project with inter alia the delay in commencing the Project as a result of the designs beings submitted late, the numerous variation orders (VO’s) and the Movement Control Order (“MCO”) vis a vis the Covid19 pandemic being implemented. These had led to the LAD being claimed by the Defendant. [21] It was pointed out to this Court that the said delays were referred to at paragraphs 32 to 42 of the Adjudication Claim and at paragraph 15 of the Adjudication Reply. [22] On this issue of the Adjudicator declining to exercise his jurisdiction to consider the Plaintiff’s application for EOT, I find that Adjudicator did address his mind to the same as can be seen at paragraphs 88, 89, 92 and 95.7, 95.8, 114 (c) of the AD where the Adjudicator has inter alia (i) indicated that to enable him to determine the Plaintiff’s/Claimant’s claim he will have to consider the issues and facts related to the EOT as it is interlinked to the LAD and completion of works (ii) drew on his own knowledge pursuant to section 25 (d) of CIPAA that where the facts and issues are inter linked he has jurisdiction to consider the same as per the case of SKS Pavillion Sdn Bhd v Tasoon Injection Pile Sdn Bhd [2019] 9 MLJ 396 (iii) in paragraph 92 of the AD stated ‘Notwithstanding, I agree with the Respondent that I do not have the jurisdiction to decide on whether EOT should be allowed or dismissed but I will consider the issues and facts involving EOT in the Project’ S/N fA37UdVDR0mbfoYWcmRtdw **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 (iv) gave his views on the EOT and the Defendant taking over site possession either in whole or in part and that he was of the view that clause 16 (c) of the CoC was applicable and thus the LAD claimable should be reduced or apportioned as the cause provided (v) the fact that the Defendant amongst others admitted taking possession whether in whole or in part, the Plaintiff’s applications for EOT was not dealt with, the Plaintiff’s increase scope of works, that there were evidence that works were still in progress after 13.10.2020 which were pertinent to be taken into consideration in the Plaintiff’s/Claimant’s dispute for the unpaid works and the EOT (vi) the issues of EOT no. 3 and that it had the effect of revoking the CMC for the previous completion dated i.e 12.8.20220 (vii) the issue of clause 23.1(a) of CoC (viii) the issue of estoppel (ix) the notice to impose LAD (x) the differing amounts to set off (xi) the issue of time being at large (xii) the issue of shortage of manpower (xiii) given his reasonings why the defendant should be allowed to set off the LAD for section 1 and 2 (xiv) that he did not have jurisdiction to determine on EOT but that he was allowed to consider the issues and facts involving the EOT in the Project [23] I hold from the above findings that the Adjudicator was not only rather meticulous but also being merely extra cautious when addressing this issue of delay and EOT’s. S/N fA37UdVDR0mbfoYWcmRtdw **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 [24] Accordingly, I hold that there is nothing in the contention that the Adjudicator had taken a restrictive view of his jurisdiction as he did make a decision that he had no jurisdiction to determine the EOT but that he was allowed to consider the issues and facts involving the EOT in the Project. [25] Thus, this was not a situation where the Adjudicator did not hear at all the arguments vis a vis the delay and EOT’s, but what is being challenged is his decision thereafter that he had no jurisdiction to hear the same. [26] It was held in Syarikat Bina Darul Aman Berhad & Anor v Government of Malaysia [2017] MLJU 673 that: “[70] A refusal to assume jurisdiction and decide on the matter submitted to it on the erroneous understanding of his lack of jurisdiction would be equally a breach of natural justice in that the Claimant’s Claim, in this case, under Claim No.4 for “Loss and Expense Claim” was not heard at all when it has been properly submitted for Adjudication.” [27] The facts before me, however, shows that the Adjudicator did answer the question or issue of delay and EOT albeit the fact that he may have made a mistake as to the said answer is not a matter which will affect the enforcement of the AD, see the case of Bouygues (UK) Ltd v Dahl- Jensen (UK) Ltd [2000] BLR 49 which was quoted and referred to in Syarikat Bina Darul Aman Berhad & Anor (supra). Hence in this Court’s view, no breach of natural justice has been occasioned here due to the same. S/N fA37UdVDR0mbfoYWcmRtdw **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 Liquidated Ascertained Damages [28] I have observed that there was some disagreement with regards the LAD between the parties on this issue. In any event, after due perusal of the AD in toto, I find that the Adjudicator had (i) adopted the position not to consider the EOT as a defence against the LAD (ii) decided that the practical completion for the Project was 3.3.2021 (iii) the Defendant could retain and set off the LAD for the period 14.10.2020 to 3.3.2021 (a total of 141 days) from the aforementioned paragraphs in the AD and (iv) that his reasons for the same were given by the Adjudicator in the AD. [29] On this point, I hold that the Adjudicator had correctly addressed the issue of the LAD. Whether the Adjudicator may have decided the same correctly or not is an issue which goes to the merit of the matter and does not come within the ambit of section 15 of CIPAA. Accordingly, the AD cannot be set aside for the alleged incorrectness of the AD on this issue. Once again I hold on this point that there is no breach of natural justice in respect of this issue and that the Adjudicator had not acted in excess of his jurisdiction Vacant Possession Issue [30] The Plaintiff had also asserted that the issue of vacant possession (VP) was not properly considered by the Adjudicator and that it had established the nexus between the VP and the LAD whilst the S/N fA37UdVDR0mbfoYWcmRtdw **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 Defendant submits that the issue of VP is not relevant to the determination of the LAD. [31] I have observed that this issue of VP was not raised in the Plaintiff’s Adjudication Response or Reply at the Adjudication proceedings and that in the AD itself, the Adjudicator had touched on this issue when under the heading “Determination on completion of Works, Liquidated Damages and Costs for Appointing Third Party Contractors and Utility Bill” he held that there was no practical completion when CCC was issued. [32] I thus conclude that the Adjudicator did consider this issue of VP but it is at most, an error regarding a finding of fact and is not a breach of natural justice. Alleged Failure to Consider Documentary Evidence For The Penultimate Claim [33] As to the documentary evidence for the penultimate claim, which consisted of 400 pages of documentary evidence which the Plaintiff submits was not considered by the Adjudicator, I hold as per Ireka Engineering and Construction Sdn Bhd v PWC Corp Sdn Bhd and another appeal [2019] MLJU 35 that the weight to be attached to any evidence is within the domain of the Adjudicator. [34] In Ireka Engineering and Construction Sdn Bhd (supra), the Court of Appeal had held: “ [40]….The learned judge stated that the sufficiency of the evidence and/or the weight to be attached to the evidence is a S/N fA37UdVDR0mbfoYWcmRtdw **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 matter within the domain of the adjudicator and that it was not a ground to be raised in an application to set aside the adjudication decision. We were in full agreement with that proposition given that section 12(a) of the CIPAA has provided that the Evidence Act 1950 shall not apply to adjudication proceedings under the Act….” [35] I do however find that in the AD, the Adjudicator did however consider the penultimate claim where he had amongst others held “…I am not satisfied that the claimant had substantiated with documentary proof in its Penultimate Claim”. [36] I hold that this issue raised by the Plaintiff is thus not a ground to set aside the AD and is not a breach of natural justice and that the Adjudicator had not acted in excess of his jurisdiction on this issue. Decision [37] Based on all of the above, I hereby dismiss Enclosure 1 with costs. Dated: 8th day of September 2023 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE CONSTRUCTION COURT 1 COUNSEL FOR THE PLAINTIFF: Dato’ Selwyn Vijayarajan Das and James Lopez [Messrs Fernandez & Selvarajah] S/N fA37UdVDR0mbfoYWcmRtdw **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 COUNSEL FOR THE DEFENDANT: Jocelyn Lim Yean Tse and Jeremiah Ch'ng Khoo Ern [Messrs Skrine] S/N fA37UdVDR0mbfoYWcmRtdw **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

WA-24C(ARB)-28-06/2023

PEMOHON BM CITY REALTY & CONSTRUCTION SDN BHD RESPONDEN MERGER INSIGHT (M) SDN BHD

Enclosure 1. In the Originating Summons (“OS”) dated 3.3.2023 before me, the Plaintiff had applied to this Court for an order that the Award dated 6.12.2022 (Award) given in favour of the Defendant at the Arbitration proceedings (Arbitration) be set aside pursuant to section 37 (2) (b) of the Arbitration Act 2005 and/or Order 69 and /or Order 92 rule 4 of the Rules of Court 2012.

24/11/2023

YA Tuan Nadzarin Bin Wok Nordin

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=a057a3eb-19ab-43f6-aff3-34e712e8f2ff&Inline=true

1 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM NEGERI WILAYAH PERSEKUTUAN, KUALA LUMPUR (BAHAGIAN DAGANG) SAMAN PEMULA NO. WA-24C(ARB)-28-06/2023 Dalam perkara berkenaan Seksyen 37(2)(B) Akta Timbang Tara 2005 Dan Dalam perkara berkenaan Aturan 69 Kaedah-Kaedah Mahkamah 2012 Dan Dalam perkara berkenaan Timbang Tara antara BM City Realty & Construction Sdn Bhd (No. Syarikat: 941446-P) dan Merger Insight (M) Sdn Bhd (No. Syarikat: 261853-A) Dan Dalam perkara bekenaan Awad Muktamad yang diberikan pada 6.12.2022 oleh Penimbang Tara Tunggal ANTARA BM CITY REALTY & CONSTRUCTION SDN BHD (NO. SYARIKAT: 941446-P) …PLAINTIF 24/11/2023 15:02:17 WA-24C(ARB)-28-06/2023 Kand. 29 S/N 66NXoKsZ9kOv8zTnEujy/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 DAN MERGER INSIGHT (M) SDN BHD (NO. SYARIKAT: 261853-A) …DEFENDAN GROUNDS OF JUDGMENT (Enclosure 1) Introduction [1] In the Originating Summons (“OS”) dated 3.3.2023 before me, the Plaintiff had applied to this Court for an order that the Award dated 6.12.2022 (Award) given in favour of the Defendant at the Arbitration proceedings (Arbitration) be set aside pursuant to section 37 (2) (b) of the Arbitration Act 2005 and/or Order 69 and /or Order 92 rule 4 of the Rules of Court 2012. [2] The grounds in support of the OS were inter alia as follows:- 2.1 the Award gives effect to the dealings between the parties and is against the terms of the PAM Contract 2006 (Without Quantities) entered into by the parties; 2.2 the Award is against the principles of natural justice and the law of contract as well as the Arbitration Act 2005; 2.3 the Award was given on a wrong interpretation of the PAM Contract 2006 (Without Quantities). [3] It is argued by the Defendant that the OS merely seeks to challenge the Learned Arbitrators finding and had not attempted to explain how or why any portion of the Award ought to be set aside. S/N 66NXoKsZ9kOv8zTnEujy/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 [4] The Defendant had also raised 2 preliminary objections (“PO”) being: (a) the OS was made after a period of 90 days from the receipt of the Award which is contrary to section 37 (4) of the Arbitration Act 2005; (b) the OS was not filed with an affidavit in accordance with Order 69 rule 4(2) of the Rules of Court 2012. [5] For the record, the Defendant herein had also filed Originating summons no. WA-24C(ARB)-12-03/2023 (“OS 12”) where both the parties were in reverse and where the Defendant herein, who was the Plaintiff in OS 12 had filed an application to enforce the Award in accordance with section 38 of the Arbitration Act 2005. [6] After hearing the learned counsels for the respective parties giving their oral submissions and having earlier read the respective Written Submissions of the parties for both this OS and OS 12, I had on 6.9.2023 upheld the Defendant’s PO and dismiss the OS of the Plaintiff with costs of RM15,000. [7] The Plaintiff being unhappy with my said decision has hence forth appealed against my decision on this OS only and herein are my written grounds thereto. Brief Background Facts [8] The Plaintiff was the employer for a project known as: S/N 66NXoKsZ9kOv8zTnEujy/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 “Cadangan Membina 1 Blok Bangunan 23 Tingkat Kompleks Bercampur Yang Mengandungi: A. Kedai/Pejabat (40 Unit) Dan Kios (32 Unit) – Podium Tingkat Bawah & Tingkat 1 & Blok “Sale Galeri’ Tingkat Bawah – Tingkat 3. B. Tempat Letak Kereta & Motosikal (5 Tingkat) – Podium Tingkat 7. C. Kemudahan Rekreasi, Kolam Renang, Jacuzzi (1 Tingkat) Podium Tingkat 7. D. 3 Blok Suite Perniagaan 528 Unit 1 (15 Tingkat) Tingkat 8-22 page 11 of 153 Di Atas Lot 1323 Jalan Perda Selatan, Mukim 7 Seberang Perai Tengah, Pulau Pinang Untuk Tetuan BM City Realty & Construction Sdn Bhd” (“the Project”). [9] In 2013, the Defendant engaged the Plaintiff as the main contractor to carry out certain works for the Project. The terms of contract between the parties are based on the PAM Contract 2006 (Without Quantities) (“the Contract”). [10] By way of a Notice of Determination date 11.4.2015, the Defendant’s employment under the Contract was determined due to a purported failure to proceed regularly and diligently with the works. [11] Disputes arose between the parties and the Defendant referred the matter to arbitration in accordance with the Contract (“the Arbitration”). [12] The Learned Arbitrator published the Final Award on 6.12.2022. S/N 66NXoKsZ9kOv8zTnEujy/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 [13] A hardcopy of the Final Award was released by the Learned Arbitrator to both parties on 13.12.2022. [14] The Plaintiff then filed this OS to set aside the said Award. Reasons for the Court’s Decision Filing OS with Affidavit [15] In the documents before this Court, I had found that the Plaintiff had filed this OS on 3.3.2023 and had served the same on 30.3.2023. [16] However, the Affidavit in Support (“AIS”) of the OS was only filed on 30.3.2023. [17] As the said OS was not filed with any affidavit attached thereto, the same was thus not in compliance with Order 69 rule 4(2) of the Rules of Court 2012 which provides: “An arbitration claim under rule 2 or rule 3 may be made using the originating summons procedure, and Form 5 shall be filed in the High court. An arbitration claim originating summons shall: …… (2) The applicant shall file by affidavit, written evidence on which he intends to rely when he files his originating summons, including a copy of the arbitration agreement and the award, where relevant.” S/N 66NXoKsZ9kOv8zTnEujy/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 Delay [18] As to the issue of delay in the filing of the OS, I agree with learned counsel for the Defendant that the OS was filed only on 3.3.2023 and served a month later on 30.3.3023 which was 107 days after the Award was delivered on 6.12.2022 and served on the parties on 13.12.2022. [19] It is clear that section 37 (4) of the Arbitration Act 2005 expressly requires that any application to set aside the Award must be made within 90 days of the Award being received as the said section provides: “(4) An application for setting aside may not be made after the expiry of ninety days from the date on which the party making the application had received the award or, if a request has been made under section 35, from the date on which that request had been disposed of by the arbitral tribunal.” [20] I have not found any reason given in the AIS for the delay in the filing of the OS nor is there any application before this Court for an abridgment or extension of time to file the said OS. [21] It is trite that any delay must be explained as per Soh Keng Hian V American International Assurance Co Ltd [1996] 1 MLJ 191 where the Court of Appeal in a judgment by Gopal Sri Ram JCA (as he then was) held: “…no reasonable explanation for the failure to serve and the delay in approaching this court. We took into account all that could be said in S/N 66NXoKsZ9kOv8zTnEujy/w **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 favour of the appellant, and weighed it against all the other circumstances of the case. Having done this, and having considered all the relevant circumstances, we found ourselves unable to exercise discretion in the appellant's favour.” Decision [22] The OS has therefore been filed in breach of section 37 (4) of the Arbitration Act 2005 as the same was filed more than 90 days after the Award was received on the parties and as the requirement of the filing within the said period is mandatory and no reasons were given by the Plaintiff for the delay in filing of the said OS, I had on that ground alone dismissed the OS with costs of RM15,000.00. Dated: 6th day of September 2023 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE CONSTRUCTION COURT 1 COUNSEL FOR THE PLAINTIFF (OS 28)/DEFENDANT (OS 12): Alex Gan Yi Yang and Vilasiny a/p Gannasen [Messrs Vilasiny Gan & Co.] COUNSEL FOR THE DEFENDANT(OS 28)/PLAINTIFF (OS 12): Eric Gabriel Gomez and Lim Chin Lun [Messrs Skrine] S/N 66NXoKsZ9kOv8zTnEujy/w **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

KB-12B-11-06/2022

PERAYU 1. ) CHANDRAN A/L GURRAPPAH 2. ) Annapoorni a/p Vasiappan (ibu yang sah dan wakil diri kepada si mati, SHARMILAN A/L DHASARAJOO) RESPONDEN SITI ROHAYU BINTI JAAFAR

Appeals and cross appeals which arose out of 2 civil claims brought by a motorcyclist (Suit No: KF-A53KJ-137-09/2018) and his pillion rider Suit No: KF-A53KJ-198-12/2018. Appeals involved liability and quantum whereas the cross appeal was only on quantum.

23/11/2023

YA Puan Narkunavathy Sundareson

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=293ff49a-b8df-44ec-ab1e-a9c50e7051d7&Inline=true

23/11/2023 08:54:34 KB-12B-11-06/2022 Kand. 28 S/N mvQ/Kd47ESrHqnFDnBR1w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N mvQ/Kd47ESrHqnFDnBR1w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N mvQ/Kd47ESrHqnFDnBR1w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N mvQ/Kd47ESrHqnFDnBR1w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N mvQ/Kd47ESrHqnFDnBR1w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N mvQ/Kd47ESrHqnFDnBR1w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N mvQ/Kd47ESrHqnFDnBR1w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N mvQ/Kd47ESrHqnFDnBR1w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N mvQ/Kd47ESrHqnFDnBR1w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N mvQ/Kd47ESrHqnFDnBR1w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N mvQ/Kd47ESrHqnFDnBR1w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N mvQ/Kd47ESrHqnFDnBR1w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N mvQ/Kd47ESrHqnFDnBR1w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N mvQ/Kd47ESrHqnFDnBR1w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N mvQ/Kd47ESrHqnFDnBR1w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N mvQ/Kd47ESrHqnFDnBR1w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N mvQ/Kd47ESrHqnFDnBR1w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N mvQ/Kd47ESrHqnFDnBR1w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N mvQ/Kd47ESrHqnFDnBR1w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N mvQ/Kd47ESrHqnFDnBR1w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N mvQ/Kd47ESrHqnFDnBR1w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N mvQ/Kd47ESrHqnFDnBR1w **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N mvQ/Kd47ESrHqnFDnBR1w **Note : Serial number will be used to verify the originality of this document via eFILING portal KB-125-11-06/2022 Kand. 28 11/2023 08:5 :3: mum mmxmm vmssn muvn an sumsm wzum mum ussam KEDAH DARLIL mm, u:AuvsvA RAVUAN SIVIL N0.KE-IZE-341672012 ANYARA sm Rowwu sum JAAFAR . Psruvu mu Aumvuonm NP vasuumm {Muuunlul mumk sunny: .1.» sebum am y...,; m. an um-.m.. kevndn .a mu. smmxuu AIL nunsmwoo; . xzspcunzu mm mum MANKAMAH runes: mun m suns» pzum mum macaw KEDAN mum mm. muvsm uumsuvum x 2 oslznzz AMTARA s:naomuammA.m ,.p:mu mu 1. JAGADISAN A/L suasummm 4..m...,; yxnq um hvlkaupaynn melalul susuummm M. AMAVASY suman wakil mmumy-J 2 cHANnRAu AIL GURAPPAH 3. mmuaoonm up vuuuama [sablmwakil um um. nmau. swuwnum m nmsmuoo) ...REsPaMnEN-RESPCINDEM mum MANKAMAN runes: umuu ul swan psum nAuM uzssm KEDAH mam. mm, muvsu ruvum SIVIL Mo. KB-12E-1n-usunzz mun Aumuzuuaun up vaswnw {Memmlul Immk dmnya can scan dan unnmulslan kensdn 3 ml . smmnuu AIL umswuoo; . vssuvu u ynng uh mu sm ROHAVU awn JAAFAR xsspounsu nAuuI mmnmm mam MALAYA nu suuau Pfinm mum uscsm xsnm mum AMAN. umuvsu mwum s\v\L Ma. K3423-11415/2022 ANTARA 1. cnmomu AIL eumrnu 2. mmooumxu A/L nHAsARAJoo bagawmana Iealdmyn kemihngln lm Izaak memoaremar Mankamah unluk membum knnklusw kg 21:’: habrhln yang seam pelns am new mambeull klvada sualu pink’ 31. There were no rsasansgwen cnrme award otdamageslnr both Annapooml and Jagidlsan aaye ma: she was gmded by prmc|p\es of raw on quantum The arguments 32 The euunsers submwsslans can be summanzed as follows sm Rnhayu mok Issue mm are appn nmem ol nammy on me ground: me: me Veamed SCJ lailed In cuns\derIhat— (I) snarmnan was ndlng me momrcyere undevlhe mflnencs :1 alcohol. on sm was an Independsnlwwness wne madea puhce reparl wnlhm 3 hams erme aeemem. and my mam Annapnzmu and Jagamsarr had m mscharge me lumen of pmvmg men case 33 On me Issue or quantum var Annapuarni, sm Rohayu argued that me award 0! RM 100DD.00far bereavement was wrung She alsa pointed am that me RM 100,00 per mcnlh for the dependency daim was unsuppnrled by any evidence am mvqmmvzsmunfnnamw -we sum IHIHDIV Mu e. um law may he arm-y MW; anuumnl y. muye perm 35 37 on the issue at quantum tar lagadisan‘ siti Runayu submitted that tne award for damages was manilestly excessive and that tile learned SCJ lailed to consider ttie overlap in the injuries Annapoorni, Jagadlsarl, cliandian arid Tnampotnaran all contended tnat tlia leamed scl did not make tindings aliacl on cruclal issues sun as me probable paint cf impact and wnose negligence caused the accident rliey alsd argued that tne learned sc.l was wrpng lo alltlbule negligence on snarniilan merely because alttie alcohol cnnlenl in ms hlnud level sne did not allude tp any specific act on nis part wnicn constituted negligence Jagadlsan suuniitled tnattne award pl damages tpr tread iniury was law He also look issue wllh the learned SCJ‘s lailure In award damages «er a deep laceration wound an the iignl leg and allew ms elaini lei tlia hearing aid. Prlnciplca govnmlng app I: 35. it is trite lnat this court, as an appellate cowl. puglit not to intervene with the trial courts conclusion on pnrnary lacls unless it is sausned the lnal ludge was plainly wrong Based on this ‘plainly wrong test an appellate cnurl is enlilled In examine ri olevidenee by the trial court and may set aside any decision oi the trial cdurt witn no or insuiueient tne pruoess at evalu ludlclal appreclallarl altne evidence IN mvQlKdl7ESIHlzrlFDnBRlw mu. s.ii.i am... will e. um I» mu he nllylnlllly «in, sum... VI erlLING mi 39. In Gan Vnok Chm (P A Anorv Lgg lug gum @ Lee Teck seng a. Dr: 2005 2 MLJ 1, Steve shun CJSS new a|10- ‘M cur view, the Calm «:1 want VII ulmg mm cam nan many home In mind (ht u:n|r.I\ hlluvu L11 appenata Intalvarmcnt be to delemune whether ovm7lll1ama\caurl had imved at Rs decusbn ar findmn umvaclly an ma um wne veletvanl xaw and/av lhe aaumsnaa evwdenue In in dumg, lhe Conn alADDMlwnsnenecIIyemn\edm axamn. Ins pvweisolevaluahon L7! me evxdenue by me «nan cuurl Chzlvy‘ the pmais'\n:ul9in\en|Jud|da1 app-ac-an-an cl mound mavely mama k: such a prom ma V! man VI Ina Calm M Aapears reslatemenl um . judgl wnu wz: requwe-1 |o adluduzale upbn a mum» musl arrive 2| his aacmn an an Issue of mm by asgessi , wmghmg ana, my goud veasons, either ampnng Dr mg-mun ma wnuua av any pan an the ewdenne mam belore mm Tm Caurlv1App¢a|VuIInavvm|eval:dIhe pnncwe aentulla appellnle -nmvenuan We hit a dedslm unwed xl by a ma: cmm mnmn wanna! appveclaum at the evhtence mm be set a :1. an appaax rm: 1: mnsblenl wilh nne uuhhshed n\:\n\y wmnj 1551' (sea UEM Gmug and v §§nI§x§ gggyatea Engvneevs Pte Ltd 5. Anor 2010 MLJU 2225, Ng Han Km 5. Angr y wgndy Tan Lee Pgng §gmIm§ rg nx my the estate of Tan Ewe Kwang deceased) & Ors 202m 12 MLJ 57 a181, Ahmad zulienm hm Anuav v. Mohd sham bin Abdul Rahman 2022 4 ML! 592 at M) sm mvQ1KM7Es1HunFDnaR1w "Mme sum rumhnv Mu n. um n mm m. mtgwnnuly WM; nnaumnl «. mtns Wm 40 ‘nus Coun must be mindfln that me man Judge woum have had me nenem and advanlage nlseelng and hearmg lhe wimesses and had me oppununily to assess mememeanom espedally during cross exammalian. The mel judge Is emmstea wuh me cask ofervaluaunq and apprzxsmg men ewdenoe as a whole 41 ms Cnurl Is nmy called upon to examine me trial oourrs probes: or evamluon av evmenee and appncauen av law m amvmg at me decvswcn 42 The mam issues (or nus Coun's de1ermmaUon m mese appea\s are — (u) on me Issue (.11 nammy, whe|her me SCJ hid sumcwem ‘ JIAGIEIIV apprecxalmn e1 me emaence adduced nevme my when she concluded |haI sm Rohayu and snemman were equally Mame (or the accident, and (H) on me wssue cl quantum, whether me sm was gmded by was gmded by me vewsea campendlum [or yersonax Injury 1 awards and me trend m awardmg damages. m mvqtmnvzsmunrnnsmw ms sum IHIHDIV Mu e. um law may he mV§\nIH|Y vvws anuumnl m muus wvm ‘ Ar-aims and findings ueniiiiy 43 in he: grounds oi iudgrnenn me SCJ summarized me einaenee ei SP1, SD1, SD2 ana SD3 sne painted |o me aisciepeneiee in me evidence ai SP1 and sin and 503 ennui wneie me pnin| ei impact was 44 sne came to a nnaing mat sPi‘e eviaenee wee premised on me Illenl evidence at me scene 0! III: accident which led mm In cundude that me acciaeni happened in snanniians iane 45. The learned SCJ iieid inai SD1‘s evidence inai Sharmilari was rlding me meieicyeie under me iniiuenee at aicanoi ienu cieaenee io sin Renews narralive (ha! snanniian: negligenoe eeninimied In me aeenieni A5 A pemsai oi ine rioles oi evidence in pamcuiai man of sin Rnhayu and sin shaws many mnlradicuons in «new evidence Firsfly, there are inaienei enuesione in min men pence iepons (i) sin Rohayu did nai niennon inei ene saw snamnian weaving in and am aflraffic (|emuyung—hayarig), (H) neither sin Ruhayu nor sm sieiea me: «hey sew |he niaioicycie neing niovea iiem iie original position, IN mvQ1Kdl7ESiHiznFDnBR1w Wale Semi lhlhhfl wiii e. wed in my me meme we mm... VI HUNG wmi 47 4s 49 (n) SD3 am not say max ne nad observed snarnman ndlng the motorcycle «am a petrol slalmn and hid lrallsd mm for 1a mimfles pviur lo the awdent; and av) sna dm nol mennnn that he nad seen snannuan riding me mouavcycle reck\ess\y by ndmg me mukzrcyde imolhe path 0! a my name swerving back into ms lane These nmlssxons can Inlo fluesuon men oral evidence during the man adm sm Rnhayu and sun mamlalned «nan the pom|a1 umpacc was me nuddla onne road at x and P yespecnvexy on Exhxhn P1, ye: may wwd not reconcfle «nan narralwe wnn me poemon o1 F\ck»up afler nne acumen: The learned SCJ dud nut oonswdev mess almssmns when ene evamaxea men evvdenoe. sne dud nn| fest sni Ruhayu no! sass vemun of haw me accidem happened wnn the s|len| evxdence al «he suene ov me accmenc The sflenf ewaenae Is me nmu reliable guide rm haw me accident happened The skelch p\an. me brake and on marks an the mad, me posmon Mlhe Pvck—up pustaomdenc and me exxenme damage to me vehrdes render sun Ronayxfs vemon mi me accident nnpmnanle m mvq1KdnEssMunFDnsR1w Wale sum rumba! wm ». um In may he .nnnn-y mm a...n... VI erxuus bum! 50. From me angle ol lne bvake marks and pcslllon of (he Plck-up on me griss verge‘ ll ls clearlnel sm Ronayu nrusl have already enlered lnlo snannrlans lane euen before the poinl ol lrnpacl. This ls wny mere were no brake marks an ner slde ul me road 51 All one evrdenoe palms la lne aocrdenr naving laken place in snarrnllans lane. 52. me learned SCJ appomcnsd 5u% llamlily lo snarnulan based an llre fact |ha| alcanol level exceeded lne legal llrnll Thls nnulng ls llawed and wllneul hasls beanie lnere ls no evidence ol lne causal llnk belween ms alcehol level and lne accldenl 53 on the whole, lms caun llnda lhal lhe learned SCJ‘s nndrng is lmsuppmled by me evldence adduced In me lnal. Tm; lnsumclenl appreaallen ol Ihe evldence rnenls appellale lnlewenilorl 5-: ln conlnrg lo lnls concluslon, lnls court was rnlndlul annal In M Hon Kul laupra) wnerein lne Federal Cour! explalned aH17 — 'n1a'plaIIlly wlollg‘ lesl ar eepuused VI declslorls ol IN: awn amuld be Ielalned as a llennle mild: Vlx appellalz caurls A: Inna um: um lungs: mmclusian can be supnmled an . vlllcmll bl!!! rn mam 1:! ln. malulal eviderlue. lne lm that me lnpellala cnnm reels llka ll might have deemed urllaranlly ls mlmnl In ulhnr welds, a filldlng or leer lnal would nu be vapugnzm In cnmmun sans: augnl nol Io be dlslulbed The rrlal l-me rnoula be aeeuraeu a rnawln at apvleculmn when nag llanlmem or ln. evldelwe Isexamlrled by me Avnellnle mullx' sm mvQlKnA7ES1HlznFDnBRlw -ml. Sum rumhnl wlll e. um re may he .nnn.ny enn. anuumnl «. mus mn 55. 5s 57 55. 59 The suenr emzenee shown by the sketch plan cleafly rnareares «hat the accident happened ermve\y m SharmI\an‘s Iene V71 pamculan the brake marks on sharrnr|an'e lane mnxramcns Sm Rohavws ewdenoe «her she applied her smergency hrakes berere swan/mg nghc to avoid shannnan The pnsmuns rmhe Pickup pusl—awdenI shaw: «her the porn: er rnrpem cuuld no| have been at the middle :2! the mad marked x by Sm Rohayu or P by so: Even inhis coun acoenled sm Ruhayu and soap ewdence |hal shannilan entered her lane whusr ovenakmg e car, he was beck In hrs Vane wey eevore me aecraenn happened sm Rohayu are hm apply her emergency brakes whflsl rn her rane and than knocked Imo shannueh because «here are no brake rnarke on the Veil lane It rs probable ma| Sm Rphayh |L7s| cnnlml rhe Pick-up when she swerved nghl causing her re enrer sharrni|an's lane and knocking mm 1 hnerng is suppurled by «he brake marks and «he glaee hagnnenue as marked Vn P7 For these reasons, the cum finds sm Rohayu 30% heme for the eccidenr m mvQ1KAnEsrHunFDnsR1w we sum rumba! wm e. um he may he mV§\n|HIY Wm Hannah: VI mnhe bum! ouenmn. 61 In Laksmanz Realy Sdn End 2905 1 ML} 675, the court (by referring to me case of Tan Kuan van v sunindnmani [1935] 1 cu 429). held - ‘Thu mInc\D\e lhll mm gmd: (N: cmm n dalnrmmlng wmnu n mama mtellvre mm the quinlum mdamage; n c-yscau daav wnal ws ilw 115:! as mal -nvun depends on ma clvcumflznces aleacn case‘ n pamcnlavme amoum al Ihe Award In - p:rUcu\arcue|heIe1ore me lot we swell mm In cenmervmeme. .n 0:: mm Mme cvcumsl-nae! no um use have .a an vvvcnwus ed-mas do In: amdvm M Ina damage m Ina| ermer mm was an ormstmn on the pan ov me Judge to wnildev tom: uenmnu mlherms or ne nad admmed Var pvrueses olassessmenl same melevanl cansudeuums v we mull Vs unsoed ar onrwmced am (he Judge has med urmn wmng pvmI:\p\es er we». men n .. puhfiad m Imaulng‘ mam m u its only to lar-Iursa lhaflndlng m lhe ma: Judge- 52 Gumed by «ms dicta, coun cansiflered me award av damages which were an Issue .n lhese appeals 63 Annapuorni mncsded mat me award at RM 10,000 as for bereavement ehduld be set aside as snarmnan was more man 15 years old and unmamed at me Mme 0! me accident 54 The evidence adduced by Annapoavm was that Sharmllin earned RM zouo on penndnm and gave hev RM mm 00 The sc.I fixed me dependency clsnm at RM 700.00 per rnonm wmch 10 ms cmm we a reaeoname sum and oonsis1enI wrlh wnac Tnameomaran her other aon gave ner monthly am mvQ1KM7Es1HunFDnBR1w -we. sum runhnv Mu e. um law may he ..en.u-v mm dnannnnl «. muus mm 65 57 as 59 For Jagadisan, he submmefl max an awavd MRM 300000 on — RM 350,000 00 ws me current award lur seveve head mjury mung the case: M Abs Mullava Entsrgnse 5. anor v Thavamany gamaymu zgzm 1 LN§ 1713, Kassxm b lbrah 3. mar v Syed Khodn n Eyed Abdul Am 2009 2 FIR 25 and K arasan a/IT Sukumaranv KhorLye Chaon 2011 2P\R e. sm Rohayu argued man the award 01 RM 150000 00 was reasunable Fzlzullah v Nmm Fa snag Q My gasnged 1. anar 2012 1 PR 15) am asked lar a 20% redudmn an me gmunfls that Jagadvsan had comnbmea to m presem sxaxs used me Plamwrs by not mnawmg (hruugh wim his nealmenl Jaga n clawed |he oasis lar hearing aids relymg on the evwdanee M SP2 SKI Rohayu questioned the need (or Ihe hearing an as wt was nut vecommended by me ENT at Penn; Hospual Jagamaan axsa maimed (01 deep \aoera|I:m wound 01 me ngm Veg. On me wssue of quantum, me Maglstrale was gunned by the prmclmes of waw anunmaneu m the following cases — (i) ong Ah Long v Dr s Underwood 1953 CLJ Reg) ion‘ and m mvq»<anzs.».nrnnam.. Wale sum lhlhhfl Mu ». um In new m. mV§\nIH|Y Wm nnumanl VI muus wvm (aunng ynng uh aan waldl am mu. gm.-ax, smnuuuu AIL omsmuoo) . .nssuvu.p:suvu mm sm nuwwu amn JAAFAR . .REsPounEN GROUNDS or JUDGEMEN1 Introduction 1 Armapocrm all Vasxappan onmmenced a c I sum agalnsl sun Ruhayu binu Jaalav (sin Rahayu) m me Kulnm Sessmns Cami me sun No KFA53KJ—1370$/2015 (sun 137) cor a mad accidem which resumed "I me death at her sun Shavmilan a/1 Dhasarama (fiharmllanj 2 At |he matenal Ivme‘ Shavmilan was ndmg molorcycle bearing vagvstriuon no: PDH 5147 and sm Ruhayu was dnvlng a pIcK- up bearmg vegwsuallon no: wxo 5742 (PICK-up) 3 Jagadlsan all Suhramamam (Jagadusan) cummenced a civil suit agams1 sm Ruhzyu in the same court was Su1lNo KF-A53KJ— 195-1Zm01BlSuII19&Horlhe same acmdem Jagamsan was the plllun nder on me motorcycle m wmmvzs.»<.nrnnam.. W. sum lhlhhfl MU .. wed In mm m. mwgmuly MW; anumgnl VI muus wvm (II) Ramenandran all Mayandy v Abdul Rahman bln Amhnk 199g 1 LNS we 70 Cnrlsldsrlng lne learned SCJ's award cl damages as a whole, lhls coun llnds lnallne award ol RM 200,000 on furseveve head lnluly In be are reasonable and wlllwl lne range at damages avarded lonne same lnlury H1 alner cases 71 SP2‘: evidence lnal Jagidlun needs heillrlg alas I! conllary lo the llndlngs by me Perlang Hdspllal Vlhlch slates lnal ms audldnlelry l3— lan nnld eeneonneurel hearlng less and ngm nnd lo modenle serlsorlneuval neanng lass. Tnls coun agrees lnal W lne absence Ma reoommendallan Ihal he be nlled var hearlng and, me learned SCJ was rignl lo velecl this clalm 72 ms coun nnds lnal Jagadlsarfs conlplalnl lnal ne was nol awarded damages lor me laoelaliml ailhe vlghtfonlwilhoul meri| as me learned SCJ awarded RM 1o,ouo.oo lor lne deglavlng wound over rignl lam Dcclllan 73. me lollewlng rs lnls cdurrs declelen — ll) Aggal B - sm Rohaylfs appeal on llablllly ls dlennseed and nev appeal on quantum is allowed by consent; 2: m mvQlKn47ES1MlznFDnBRlw ma. Sum ruvlhnl wlll e. um a may he mlglrullly aw. dnuuvlnnl «. mans mm (up the learned SC.J's award at RM 10,000 0Dlm bereavemenl is set aside‘ (um Apgsal 9 - sm Ronayws appeat on Habmty and quantum Is dismissed and Jagauisans cmss appeal on quannnn ws dismissed; my me learned 5C.|‘5 decwswcn on quanxwn ws amrmed: M AQgea\s in 3. 11 — Annupouml, Chandran and ThamLmIhavan's appeaxs an I are anoweu and me learned sow: decvswon on uammy \s set asme, my 30% hahvlmy hr the accident Is now appcmoned lo sin Rohayu, 1vu)cosIs fcrAppsa\s a and 10 are sel ac RM 15‘oooan m Annannorm suhiect la allucilun 1vuI)cos(s var Appeal H \s set at RM 10,u0n on each |:) Chandvan and Thamnlharan subjed Io auocaxun and (IX) no order lov casts ws awurded namppea: 9. Dated 23 Jury 2:123 Narkunaval y Sunda sun Jud\cIz\ Commissmnev High own Ma\aya al Sungm Pelam m mvq1KnnEssMunFDnsRm Wale sum lhlhhfl Mu be um In new m. mV§\nIHIY mm 3..."... VI muus wvm For me Appellzm Kamalamm arp Ravycnandran Messrs P R Manecksha .5 Assgcianes Smle 9/05‘ 9 Floor, Menara zuncn, 170, Jalan ArgyH, mason Geowetawn, Pulau Pmarlsl Far tho Rnporuionl Na m 3/‘ Rapndran Messrs s Parum 5. G. Tmla Advocates a. Sulcltms 2" Flow, 325. Ja\an Todak 4‘ Bandar Sebevang Jaya, 13700 Perm Pulau Pmang m mvq1KAnEs:MunrDnsR1w Wale sum lhlhhfl wm be uud In mm m. mwgmuly MW; anumgnl VI muus wvm sm Rohayu oonnnenoed third party pmoeedings in Suil I98 aga.nst— up cnandran an rsurappan, owner dune malorcycle‘ and (n) Annapaoml and later suhsflmled by Thamamharan a/V Dhasamao (Thamodmaran). Sharmllarfs bralher ARE! I lull lnal. he learned Sessxens Cowl Judge |SC.J) admurned me cases lur decision The cases weve caHed up «or decrsxon on 2 6.2022. ForSuI| 131, me learned sc.I laund s i Rnhzyu and Shamulan both Mable var me accident and appomoned nammy at 50% eacn The learned SCJ awavded damages including — 0; RM moon on lar bereavement; and nu) RM 134400 no lar dependency an RM 7ou on x 12 IIIDMIIS x we years on me same finding of Iiabi y, we learned SCJ awarded Jagadlsan, damages mcmdmg RM 2oo,oon no lnr severe need Imuly wnh dwsabllwties wn 5uil198 She and nut allaw Jagadwsarfls c\aIm fur hsanng am or damages lar rIgh| hm! Iacerzlwun wound m mvQlKM7ES1MunFDnBR1w wn. sum IHIHDIV M“ e. um he may he Mn.“-y mm anuumnl m mm Mn 9 ln sull 131, so Ruhayu appealed agalnslllle declsiarl an lialzlllly and rluamum lAl=neal sl whereas Anllapooml appealed ml llahlllly alane (Appeal 10) lo In sui|19Bl Rohayu apnealed agalrlsllhe declslon an llablllly and quanlum (Appeal 9) Jagadlsan upssappealea on me leamen SC.l‘s lieclslorl an we apparllonmenl nl |labi|l|y and quanlumlmlhe severe head lnjury. me lacerallon wound on ma rlghl ml and me hsarlng an ll. In sull19E‘ Chzndran and Thamanlhalan appealed agamsl me fleclslorl on me appamonmenl cl Vlahlllty (Appeal 11) 12 AH lour appeals were heardlogethercrl 4 1 mm and adjourned lnr aeclslon After carelul conslderallurl 01 me cauee papers and ma wmlsn and oral Submlsslons el counsel, |hls COIIVI decided lo — ll) dlsmlss Aplzeal s an Hablllly and allow lhe appeal an quanlum (or bereavement by consent (up dlsmlss Appeal 9 and the cross appeal: and (liil allow Appeals 10 and 11 on Ilablllty 13 The lollpwmg are me grounds lor the ueclalun m mvQlKdl7E51HlznFDnBRlw mu Salli! ruvlhzl M“ e. um In may he nllglnlllly Wm a.m... VI was ml Proceldlngl In me seniana caun Liability 14. Sum 137 and 195 were heard together On me rssue al liability, ; me witnesses were — (i) SP1 - me invesuganng olficsn Insp G/19311 Muhd vusm hm Payarm‘ (H) sm e the cnemrsn, Nurul Nama mnn Ahmad‘ (m) 552 — sm Rahayu. and (N) sna - mdepem1en|wItness. Nannudarn hm Abu Hassan 15 me acmdem tank wane on 25 s 2017 a! 945 pm along Jalan Kuwn-Manang near me junction «.2 the road Veadlng «:2 saw Prmn sm Ruhayu and Sharmflan came «om apposde mrecnons we sm gave evidence that when ne wen| In me scene abmn an minu|es allenhe accmenr, me vshldes were sou m rneir urigmal pasmons He drew me sketch man (Exhibit F7 & WK) and directed pharograpna of me scene and me damaged vehicles neAaken(ExnimPsA — L)| rn nwq1KAnEsrHunFDnsRm Wale sum lhlhhfl M“ e. um In may he mtgwnnuly Wm anuunenl VI erxuus bum! O .4 ____<_ 2% , .fi‘..__ mvatxurzsmunrnnamw nu: S-vm ......v wm be wad In vufly me .m.u., mm. flnun-nl «. -FMNG Wm 15. 19 20 22. In P7, SP1 made none at the vehxdes‘ posmun, |he glass lragments (marked F). me brake marks (marked E1 — E2) and ShzrmHan‘s may (marked D) He a\sn noxed the damages (0 bum vemclee Based on me poemons aims vehumes, me glass vragmenus and lhe brake mavls‘ sm Iouna max me accmem took place In Sharmularfs Vane. sm luund Sih Rohayu and SD35 ev-uence \nz:ons\s(en| with his Inmal findings at me scene at me accident In crass exammalmn. he gave evidence that we recewmg me toxwcology report, ne ooncmded that me accrdem mus1 have (aken place at me mmuue 01 (he mm is euegeu by Sun Ronayu and Sm 501 gave ewdenc: mat SharmHan’s Mood alcahm Vevel was 144 mflhgrams per 100 mummee (Exnmn D25) The penmfled level was so ml glams per 10 nnuumes sin Rohayu gave evidence lhanhe accident happened because Sharmilan rode mlo ner lane w 1 avenaking a can She swerved to me ngm to even: him But Knucksd Inlo mm as he swervsd back Inla his Vane She braked hard and stopped on me grass verge on me nghk snamnlan lay pmne on her hmken wmdscreen and was taken down by some pissershy and wax: cm on me gvaee verge m mvq1KAnEssMunFDnsRm Wale sum lhlhhfl wm ». um In may he nan.“-y Wm a.m... VI erwuws bum! 23 24. 25 tn cross exarnrhahah. she sald braked when she sewsherrrrrtan was weaurrrg rrno her tane she agreed thanhere were no brake marks on her Isne she was enrphahc that the rnmarcycte has been muvsd lmm Its nrigmal posrtion sher rrnpsct. she agreed wtth counsel that her verstmt aflhe aoctdenl was rnsrrnsrsrent wi|h the postman ol the Pick-up and the brake mark: SD3 VHS Hdlng ms motorcycle behind Shannflan and saw the acrieern happen Hts version of the acctdenr wns wnstslenl WM Sm Rohaytr: evidence. He loo matmamed that the accidenuock Diane VII the middle otthe road. He was rrgareuety cross examined and became unsure of ms responses. He agreed he are her see the rrrorarcycte being mwed. sm Rohiyu marked the point o1 rrnpam as x an P7 as she was sure the accident tank place at the ruhction whereas sua marked «he palm or Impact P ouamurn 2s on the tssue cf quantum, the wtlnesses were — tr) SP2 — the audtologtst who examtned Jsgsarssn, Tan Eee Tmg; (I1) spa — sharrnrtans employee‘ Ravt all Rarrran, and t sru — Annapoaml ru mvQ1KM7EsrHtznFDnBRtw we sum ...h..r wm e. um law may he mtgtrmtly enhn dnuuvtnhl m muus bum! 27 2a 29 In SP2 lesmted that Jagifltian auwered sensdrtneurat hearrng toes and gave aquotannn fora nearrng ard stredrd nm prepare any report and could not explatn why she recommended Ottwrt Multtple Dynamo SP 10cosImg RM 10,500 no she agreed that Jagadtsart could use a hearing ard cosltrtg RM 2500 no. spa gave eutdence that sharrnrtan worked tor mm as a tarry attendant, eamrng RM 2000 no per month (Exhtbil P23 (A)-(Cl). He drd na| make any deductrorrs Inr EPF or socso Annapuorrli |esm\ed that she was Shavmtlarfs dependanl and he gave her RM 1200 00 each month. Trtamtootharan her nlher sort who warked as a low duvet also supported her by giving her RM 700 G0 a month. Findings by me teamed SCJ so In her grounds at rudgmerrt, the learned SCJ netd that sitr Roltayu and snannrtan were equally Itahle tor the eocrdent noIdrrrgtnat— “Feouemukzin ktrrlalingan mengvnat itasatin Men spa dim memhevtkan t-nth tnlovmasl untukmerlyaktnkan Mrhtranrah Fengaxahan tug: ratarr dtbenkan tentang ><esart—kesan dr tempat xernatangan salt: Katveakan kendetaatrkenderaan dr daranr kemalannan Int Walatt bagatmanipun, Miltkamalt ma mendnpalt dun tidak dapal maniftkitn Kelerarwart saksrsalut lemlnminyi or pmlk narerraan tetan rnemtrudxan herbage! kemtmgktnart dar. kebatangkatlan tenrarrd N SIN rnvq1KM7EsrMtznFDrrsRtw -war. sum ruuvrhnv wm be um law may he artgtnnuly urn, dnuuvrnnt m muws Mr

Tika 2.6.0 & Pytesseract-0.3.10

JB-A72NCC-146-12/2022

PLAINTIF Goh Wee Jin DEFENDAN Wong Jing Xiang

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23/11/2023

Puan Nurfarah Syahidah Binti Mohd Noh

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23/11/2023 10:29:06 JB-A72NCC-146-12/2022 Kand. 38 S/N zxmt4u5x0keTkcE7A8k9Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N zxmt4u5x0keTkcE7A8k9Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N zxmt4u5x0keTkcE7A8k9Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N zxmt4u5x0keTkcE7A8k9Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N zxmt4u5x0keTkcE7A8k9Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N zxmt4u5x0keTkcE7A8k9Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N zxmt4u5x0keTkcE7A8k9Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N zxmt4u5x0keTkcE7A8k9Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N zxmt4u5x0keTkcE7A8k9Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N zxmt4u5x0keTkcE7A8k9Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N zxmt4u5x0keTkcE7A8k9Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N zxmt4u5x0keTkcE7A8k9Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N zxmt4u5x0keTkcE7A8k9Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N zxmt4u5x0keTkcE7A8k9Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N zxmt4u5x0keTkcE7A8k9Q **Note : Serial number will be used to verify the originality of this document via eFILING portal JE—A72IlCC-146-12/2022 Kand. 38 23/11/2023 10:29:05 mmmmm mm Mzesnuanoa DARUL mam rnuvau m 1 c . . mum eorIwE£1|N (No K» w:mII«mr5:u7) mmnr mu wouemexxme usrzumu &A§M.E!MANMN M&fl I-ALL 1 Plunm m d-II“ bu WI! mun mmn-xx-n wnn Sun-1 .1.» Pamyuu-u mmm mmamo rmum m.s»»w..m hurlunkh 1v :2 2222 m.m.m.»m. Ddlundm max "mm." Mnmmandum Ku\-mum, Pqnnhlllmun may x.r..am tum dmuukknnh ... Ddnndnnnlon n znza 2 Ddtnflln. mahm vwulmcnmmfl um mamlnubzn pimmhunnn mm mugs:-m-. munmn... war mmm. madam dv tnmpwnn m Inn- mm: .. uy. Nu m. um lnmmruu m mum ptvmmarun can wma m xtmn mm mm.» Iumumll mm mam :2) mm m».;.mm Pnmanildman mum a.n.w« nzm mmmruIAlumn13 mmsx..mx..a.n».nu.m.u.2n«2_umm.uum.1=u Vunymun mun m bcwuh Alumn a mm.» 5 »<m.n.x..a.r. Mllvknmlh mm mm sm ..mu«s.msmzvmm Wale sum rumhnv wm ». um In mm m. .m.u-y mm dnunvmnl «. muus mm D-I-mun mmm... a... ..‘.w-v.m.y. P-mm:-n Fun-Iuhun 10 hurl durum: r-mm m.:.n W ITIIA up-an um.» yang mum mm...‘ wwluk hzl Fvlmahnnln an 4.‘... Iuul dun umm mi dun/mu p-nman y-nu m;..;..m- amkumn-ml ..;...¢.1.n.mc..x=-r. M-nun-an W. uum1umu.m:am:n. 4 Llmptmn m as-um rv-ND .n Dflmnhm-n am: pm mm." hag‘ murwmwiun v.,.m.m.n mam mmnkn mum, -mink lutbmlmn m un...:.n man um own." mnrmullun .1." nmvylmhhm vanyuznn p.m.....n .. m1 nnrmmn p1rIm:MrI\IuA .;...m.n;.m M »m..n.m...w.., mu»: km .,..mm... mm m..a.n mu." ,.umw.».u pm .y.,,.y.. n!-Mmnyl dmhmnn-1| M.‘ an mnmum u...m.>..n. 5 Alien M‘ pdrmnmum um:-1-numym nammm m.ms..w.....,.m.m. aunnmanunn-mun Dahndm wan -mun .1. Llmpwnnfi yang ....mw..y. .m,........ um mm :. :...».... ..m -inn pbmyltnn mm». mu... um mum .) wm..n..a.m=.n,....m.m.. .».».m..mm.m..a.o.:.m.n mehlm W...» dun Dalundnn mum mm Ddur-dun um menarwl mm. ..m msamn V swam manlnml ..,.y..u mum. m.u...,.. I-ruhm pnqunmau Plunmlwlli W. Pawlnuxm P1-vmv an-k nvunyulnknn m... nma. B.» ,..»...n« panuuncnll b|u\pmlkD:'V=1dlfl , mm mm mm..‘ mwa pm pm m.x.m vlqu-u ma. n.:.m... .x.». M. u w-av-w n Sunnn Punnhulnmi P-nqlvmnun mu». m .»mm.n No In mmsnnza um p-«Q4202: sm xxmI4«5xmsYk:E7AB§.‘1Q -mg sum nuvmv wm ». um In mm m. .m.u-y mm; unaumnl «. muns Wm 24 Selim lu,.I\D]uaImhh-it-ulvlun 13:11-13 2 um .;um mm, .1." mm... mm: mamhahmyn durum mmm manqunll man» yml «mum x. Many: ;.x.. W... p.n.m.m y... man axmm a. ...w. .1...» m.m..‘ nhh u.«.m.n mu mm. nu“. mm nu:-n-mun an mmwm ylrw :.u.um...m.n...my-. n.1....:... ......u.»y..»..«.um v-nnunor-an Im .....m Imakunnan ...... W... mun .m...u... m.nu..nmm. .2 ma... 1: mmmam 25 n.:...a.n mm mm» mm n.k.n..n ma... p...m Kmanmnn ,.n. .ex.r.m-.n ma.m.m..x..na.u.m.u.y.:...n. um uruhnn no-I-mi Juhnr am. mm: an :1-um pm...“ »<.m.«n.mm.y Mn-un mm mlnymllln n-nu: mm mm m.m.m m am.‘ dv 5-q-um sun W. mm mm hnhawnnhmlllaqnnul-11:1-huwu ....n.y.,.. a nun >....u... x.xm»...4».n .Lumndv a-um yum ham-1: "up, an .».m M ..y.. M. mm nmm-n gunlkm mm". Ar-auufd-nymv mu n.m.n.~.;uu.m.»m_ 25 pm Danmnum umm m. Kali-Jun pun. Furilunn »<.m.mm-m lambm mu.» mm n.u.m .,.»gm.m.n, Nnmll ynnq wan mpmusnn a. .: dnkumm Iuuhul mm mm: uruhln um. unsm a. mum umwm 5‘ naml mu-pm {nil ..m..n Juhnr Bchm y.... man: yam 1-mum: mu.» s.,..m, Fndnlvurmlmmknn-11 w,..m. mm." mu..." mwuaanmunnmmaxun n..mp..1. mm. ll\lEl am my: man n-mptqudxun u.m.n ma. mp m... ylw mutual Mama-n mm M, -mu: paskuv um um um dnaruh sm-mu mm asm sm ..mms.msmzvmm "Hale sum rumhnv wm ». um In mm m. .m.u-y mm; unaumnl «. muns Wm zumuluuunnun. 27 Mnhkamnhlnlnhl mlmstwukluevndnkns n.. Dn-luwmmlm .1.» 2a Mnhknmlhlm nusmlvllvlmduDamhclunlnmlwlvllw r-um. n.v.m.n nnnwkfltan a mum w-emu m. umnm malnu .or.mmy. unmn man bqnwuyu mm wan numuun m.nmy um Baum: «M. n-mm I:-um-mun mm mm": 2: nvhnann plan um um mm... a. -munnnnny: mm s:.».m lm amen awumm umm Sulwrlvln 4. Llmtilvln 4: al p-um-.. am Nrmm m am. nu.-mu cum cub: mm,-n mm mm mm rwmbw mm mm mum-I u. W-M mam man may mu .4m.;u.... um. mm... M. W. ymg W. nwmbunl mm. an ......m,,. Nnmm .4.mm.n, panun w max M... amnuxum ma mnlrwnwnllmdlmlsahslum W ./uh: W H-nyllliv mam" mnnmvnl ax.» Dink mm." m am. m..a..,...»m..,. .:.m.u.n bum menlnvkh um." um ‘ :47 u.m.m mumahmpikm “um 14 Ann u...:...p4m.:.nn mu usual hunt: mm m In my Ummnflwn men n my Cowl mmmummnum ur .:....-a-. an-cwn m-y. Innmnu nu mu_m.m:.|nn|.u.|nnunn nu. ma .. u mm. In lur 1». mu. u m an m In m. mm Mm: ugmgn Pmwded mun nwtmrw -n mu mum sm ..mu«s.msmzvmm -W. sum rumhnv wm ». um law may m. .m.u-y mm dnanvmnl «. muus mm la) -ml wumu. momma nnmmmluvmv mm [by max Ipwym ..u.:.mmny mm upnnwhlch Mn-ru\n W.» at nghl wvmhar ray mu. m aw anmmum av um.m._ nr [cnhn man live dmuvwa twwuvllfll M In: drihanwl « . an m awning: J1 umnm mu ..m.» n-mm I-at-n yur-v «mm m av-mu In-x Damn: mm: mm. mnnyuhlbhn mm nerlu m......y.m nhnqd pmumjnm rung barium an m». Am >....x.-hm warn: Mm ......g :...:.n mum u. .u.. wnng pluumnn P!-mmnuvm-mujah mm. ;..a.ny.m a.k.n.m.a.w.,..,.m dvpdmnlukkun ax 5...... suum n An: unauw-umunv Swu was :2 Mum-uahlnlm-rmuklnoonmsk umun sen mum umr1sIuIL[1rr1)1 um nu, M mmudxnylhknnupem mm. mMm.m,.mm.m.nm.s.mm.gu.sm..mm, 11 .7; m. cmmu, u .1: 1956 4... Man 0 49,111 aim: Snpmme Cum mu mumloagmnmucwnwwvntrmmnhnuuwuwtmtnnm-nuv ....m.s..u..n......u:,...»«=u»m.mr.g~.mz....e.:...«.m. ..».m.un..w..».a..:....ny,..nun»..a......:w..».»..... .n,...mm. poflvdllnvpnnvlt am; am... m. a... mm m. nun alunvn -mu Am! 0:: an. M[udgmanI 3: Mlhkumnh Im mm. amen mm.» pm Phmm Delendnn um mamjuk keyed: v.wn.m.n mam Knhldnn ylnq mu an-um m mm" A yum; mm am.:.ma.nm 1. . a. pmanwan Lmdnrwnn (ax um mum D] : am pm: new 5» mm" n. all mun Rmasarsa my 01 oszmusnmyqu mun ,»...gr..m... sm ..mu«s.msmzvmm "Hale sum rumhnv wm ». um law may m. .m.u-y mm unaumnl «. muus mm :1 mm pa-1| my ass mm ». .9915 mm mmma dun mum Donvhahrman unmwl zamm Pwlvshumv u-mm. dun m..um1uunm Dimvmnnkbldnnkc}I-I>I«MmnI‘lI\n n......:..m« yang mun Mnnumm bururi.-nu -1.1-nuvuu ww lam mg-uhnahm:-h sauym n All- um:-nu-wdvw swu was on vim mm. Mm-n o.n.m... mm. mm mum. can mum VIA aqi khan mm M Van .«m.m, u.m..... nmujxk um. uumulhn mm yum: nngmnik-n. mm." unfit mcnynlflun Iv-ndnk ....n.a-m A-mun .....;..n dllum Muwhmnn (mt-n.Mm u...1.n..a....... mm." mm." .u.mmpm......«...=cm Mn‘M-M-n-mum:-ktukmm-1-hm .u..m.yg... 9-mw.,.»=umm.uu.a. :=.¢.m._ »..m.u..2nw ..«.ym.n M1: tnluh mmnbon-rk-n ma.» um um plnnhlhm-n new 9 2 202: mm. pa».- rum um n Hum scum nu, 0:4-mun mu bum»-:-n buhmu mum. IVLIII hlvuvln W. awmxun M Avuh u.v.m.n mu. Fmnm, min mrwl WIIIF am: ma.‘ nullu pIIwMuIv\n\uhv\hd< Puma Prdlnlr-¢Ir-glnlflfltlunuhln W .. .m.m..x.,. sualu mm. yam: M wuju a.» nr-Juan um. um». mu: mm, mmmm M mm mlrunrnbl mm..." mm: nnmun :-..mm... mm m - -mum ubh um mm am:-x mvyn nmu-km . N pflllruhn y-nu mm what?! .u ma-mm hr: Imvli am hasln um... mun flu x-pun: mm r..m.m...y. pm Nlll m.F|umvI-1:» rmhl mnmmlulwvw hrnbul k-rd: pm mm." m. mm: M.r.x..m .y., lb:-n ..‘ r-my-tun ucknflnr nhav Wink mm... mink mum mam mm. mum war-an sm ..mu«s.m.mzmm um sum M... W be um w now like .m.u.y mm um... «. IFVLING Wm mm nmum... .:..n an Inn um. u.v.u.m.n ml mamnrml mm. ....m.....,. nhh nlruk n.r.nu.n -1 Llmplvln to mu.» -mun-k :1-nun» kn: Rmmmm “mu ahayav elm Du-n-inn mm. Nnmm. B-nxnkn pm 2n Mnmmbu ma mum s mm mm MM mwm lanu: rm:-in mm...» srvmlmlhu-1 Mun. mu. mu-mm. mm m..... mm. pump so Jahn 27.ArmA mm. cm u u Sn Mnrlamit. so-an Ku . Lumvur. Mm--a um «um: Puvnumcnm magma.» nu... : u an A rm... Mn 14 91‘ um. Mmek 2/2. Ynnun Munamelwoa Jam: mm mm SHGP/IJI)-m7IwJmn1!(5)l sm ..mu«s.msmzvmm -W. sum rumhnv wm ». um law may m. .m.u-y mm unaumnl «. muus mm .. MIm].lknp1fllMfidI»Al Plnylmnlmnulvfis u.......,wm......... ‘ ...y...... ......u... ..m. .......m... um... um... mulch. IIMII n . Na 22 ....n .=...u ma. Bnmlu Pmm mmn s....m_ Johavm-13M AR Poufl-H ......¢...m...... Nw Bu Hm , ................ nrahm ....... aux... ...m. ...... Dev-mm. ...... ..,............................p~... c} Merujuk ....a. .=......... .<..........a.....y.................., ¢............ ......... ma 5...... .1... .>.......... 1......" ...... dhampllkm man. warm:-. n........ ...n... .1. ... 22. ...... Pun: ma sun-. m... nsaon Jaw 5.... pm 20 . 202: , .;4..............,...............m......y «ml udamiun .1. ./am 3.... .1... mm ..>.. ... mun .. s.,...... .1." .~........ .1. M... am... ... ».....a.....n...m.. .. an-.....\na .....-...m..... yum .a.... ....m........ 4. mm p..........m ...........»..m.,....mp.....~..... .. m m... m». Dllnndln can Plunm ......... mil .1. n. M......... 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Iurrmz-n .1... ....u....... .....-4- Punulmcan v...m.v MM»: D-Inndnn mmmnn .......:..n.... nmauu. a...... ...... .4 ».... um... um. psnm... sun-In leulhul 5 s.........w....u.. mvunaom-«urmnw. n.:....1....:.1.......m....-y...........m.. 22, 4... Pm mo, 5...... WIN mm mm anw. mm... ..m. ....... ....nw.u..: um. n.r....s... mnmuuvvnl .v...... at s. n... .1... ..4......y. aw Jahov am... Mnkn man man rm Ddwdun ....m....r. mm: P-mlunn xm.n...w. bvnuhul puhnhh .4.......»... mm mk 1-. omynu sm ........s..a..n.mmq -w... 5.... ....... MU .. um .. mu. m. ........... mm; ......... «. muns .4... 9 Sehwv Mu nsvmu-mum numuma mm. rvlcrokn mnwnyu mum barman! mu m mlmramun m. min m was ..mmg n-au-um. m uxmm mum mmhm H-rm u.mpm.m:o um um numullnn mm ax lmlnm Pmnm .1.» D-sramtnn mm mm saozsmaun u... ho/Inn mm unluk a.u.wm.n .1. am. dniun us-npun mu 2 bvlln n.v=m.n may-mu. mm mm: lwrmnrueflun mm Dvfuufluw dnnvlfflxln my m-umnm at» math mm mm mum Jull-u nu‘ mun Iny-vr-mum nmyu mum..mm rmh\u\rI1h1cnrun 11. Berdlnriun p.sm-.:.m..cn.n.mm.p- vunndlwtmimtm mum-nynnw um n xa man man nwvaw .a n mm-r sermon a... lawn Wllm-n -mu: mm: mnpnh : hulan Main, um. ..... h-ncnunum mm s1uwA Manny um." Au <2 omnm mmmm. mwnm. u.u_..... an nmwu mm mu..." m .n..:.mm MuII.vuvM\I-u I:-m-m u«.m.n.u.a.» buhwln nma.m.x namlh w.«..,.. mm mcmhtnrwunn mun-u lnvubul pmmu IEDUMVII Mm mm 5.4.." am, mm... at m... mm mm Mun u.:.m.,. ,«.. nmunywkm mm. InkmJun2D21.PlunIMI nhnnmhnnavknnhnluun n... unlukbnvmnan mamhlynt my mu-hm u. um.» um um mnlnnfl Mu. mnlulm yam: mmmn mu mm an M51 20w 1:: .n max humus Mn rm.» a damn Panwhnkhnnn mm mm." mull: >4. mm .1. n In-x . n mmurul unaw- mum sm ..mu«s.m.mzmm "nun: sum M... wm ». um In wary like .m.u.y mm um... «. IFVLING Wm mumflum 13 Film mu.-n mm -0.»... wm ........ .1 .r. mum x.u...»... xulvnn loan Fm a....m.m«... cum... u. .......n Iuukmv uuma... vuw In... an. mm. om. My 5 Hon S-tahan mar: mun» Ma mah a......x... ylng mun- nmm ma .>.. ...m»... K-via: nu.-rm .......m .1... ....u.. .4... .... .. Mum mu-n Iurul mu... m..u...... yum ....... o«....... w. Jim ............. mm mm swam 4w 4...... mam Penwmnlun y-rm m cm... MIkI,J\DV-«MM muu................... u m....u...... mun}-h 5...»... v«........n~u.....-.4......ax..x..x.>..u.....m..,.». kumvv mm 44» mi... durum: mam ....».«....... MD .. .... um... um . mun 1.... .,......:....... awn... uwemm mm.-1. Am... 42 man <3 mm am .5 Kmtaa. nu»... pm... ,.... ..m.....,. um». um... u.s...¢... 1-aux mlmwrvyul . um... mink pun... munlfilun |>ml-mun mam .......... am u...u...y- unluk '1-mi nnu Ind. at-v r... .. Kauvwv-an um... unvul mzmhlvlv nun... mu m. kmnswln 9......» m....... wllu .m...... n mw...-w...w c Baum-In am... :......, .=..x...u ...m..;.. bduwl n...m... ..... ..m.. ..n......... ..........,...............u ............ ....... .=.....u mm mu «.- bu\nndu\Yu\kI1 .1 . mm. pad: .1. 2... s.m.........y..»«............ awn.-.. n.4....... ........ .....u...:m.... ....... ........... mu. m...» um... . Fluifl [mm mm m... .:..m... M... W... mnnurml ......n ..u... semm» u Am una-nu»...-na Swi 1356 sm .......s.....mzm.m -w... s..... ....... ..u .. um w «my me ........... mm ..a..... «. IFVLING Wm y... Is um: um um mam-41 mm.“ u.-...m mun rrirvwllr-nu Dandlmn mach: b-Mwa ..m.... ..m...:.«.n urvvuml H-1 mm. 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Tika 2.6.0 & Pytesseract-0.3.10

CB-22NCvC-14-12/2020

PLAINTIF 1. ) WONG QUAN EE 2. ) WONG WEI EE DEFENDAN LIEW HOI HING

Perbicaraan penuh - Tuntutan pelaksanaan kontrak perjanjian pembelian tanah - Bayaran penuh gagal dilunaskan dalam tempoh yang dipersetujui - Tuntutan ditolak dengan kos

23/11/2023

YA Tuan Roslan bin Mat Nor

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=42e479de-cf6e-48aa-b0e2-e311f6b448aa&Inline=true

Microsoft Word - CB-22NCVC-14-12-2020 WONG QUAN EE & 1 LAGI v LIEW HOI HING 1 0DALAM MAHKAMAH TINGGI MALAYA DI TEMERLOH DALAM NEGERI PAHANG DARUL MAKMUR GUAMAN SIVIL NO: CB-22NCvC-14-12/2020 ANTARA 1. WONG QUAN EE (NO. K/P: 910107-14-5684) 2. WONG WEI EE (NO. K/P: 931117-14-6309) … PLAINTIF-PLAINTIF DAN LIEW HOI HING (NO. K/P: 690928-06-5153 [A1411562]) … DEFENDAN DALAM MAHKAMAH TINGGI MALAYA DI TEMERLOH DALAM NEGERI PAHANG DARUL MAKMUR SAMAN PEMULA NO: CB-24NCvC-187-12/2020 Dalam perkara Seksyen 56(1), 74(1), 75, dan 76 Akta Kontrak 1950 23/11/2023 12:40:05 CB-22NCvC-14-12/2020 Kand. 146 S/N 3nnkQm7Pqkiw4uMR9rRIqg **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 DAN Dalam perkara Aturan 7, 28 Kaedah- kaedah Mahkamah 2012 DAN Dalam perkara Hartanah Hakmilik No. HS(D) 18171, PT 8798, Mukim Sabai, Tempat Kampung Sungai Dua, Daerah Bentong, Negeri Pahang DAN Dalam perkara Perjanjian Jual Beli bertarikh 25.10.2019 DAN Dalam perkara di bawah Seksyen 327, 329 dan 417 Kanun Tanah Negara 1965 S/N 3nnkQm7Pqkiw4uMR9rRIqg **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 ANTARA LIEW HOI HING (NO. K/P: 690928-06-5153 [A1411562]) … PLAINTIF DAN 1. WONG QUAN EE (NO. K/P: 910107-14-5684) 2. WONG WEI EE (NO. K/P: 931117-14-6309) … DEFENDAN-DEFENDAN ALASAN PENGHAKIMAN Pendahuluan [1] Pihak-pihak adalah bebas untuk memasuki sebarang perjanjian selagi ia tidak bercanggah dengan undang-undang. Pihak-pihak juga bebas untuk menentukan terma-terma yang dipersetujui. Malahan pihak-pihak juga boleh menetapkan tempoh penyempurnaan sesuatu kontrak. Misalnya tempoh untuk penyelesaian harga jualan dalam perjanjian pembelian dan penjualan tanah. Malahan tempoh untuk pelanjutan masa untuk penyempurnaan terma-terma kontrak juga boleh dipersetujui. S/N 3nnkQm7Pqkiw4uMR9rRIqg **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 [2] Pihak-pihak lazimnya menjadikan tempoh masa sebagai intipati perjanjian. Pada masa yang sama pihak-pihak juga boleh mempersetujui tatacara penamatan sesuatu kontrak. Ketidakpatuhan kepada terma-terma juga boleh menjadi sebab kepada penamatan sesuatu kontrak. [3] Mahkamah akan mentafsirkan sesuatu perjanjian berdasarkan kepada persetujuan yang dizahirkan melalui perjanjian yang dimeterai di antara pihak-pihak. Mahkamah tidak akan memasukkan terma-terma tambahan yang bertentangan dengan hasrat pihak-pihak, SPM Membrane Switch Sdn Bhd v. Kerajaan Negeri Selangor [2016] 1 CLJ 177. [4] Inilah apa yang dikatakan kebebasan berkontrak yang dijamin oleh undang-undang. Ia sewajarnya diakui oleh mahkamah dalam mentafsirkan sesuatu kontrak atau perjanjian. Keterangan Kes [5] Pihak Plaintif dan Defendan telah menandatangani perjanjian untuk pembelian hartanah H.S.(D) 18171, PT 8798, Mukim Sabai, Tempat Kampung Sungai Dua, Daerah Bentong, Negeri Pahang. [6] Perjanjian ini dimeterai pada 25.10.2019 dengan harga RM800,000.00. Terma pembayaran harga belian itu telah dinyatakan pada Fasal 2(B) Perjanjian Jual Beli. Pembayaran pertama S/N 3nnkQm7Pqkiw4uMR9rRIqg **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 RM24,000.00 (3 %) dari harga jualan, RM33,000.00 bayaran pembeli kepada pengkaveat dan RM23,000.00 dibayar kepada peguam penjual. [7] Peguam penjual telah menulis surat kepada peguam pembeli bertarikh 01.07.2020 untuk Plaintif mendepositkan RM710,000.00 sebelum 01.09.2020 bersama dengan kadar kaedah kaveat 7 % per anum dengan merujuk kepada Fasal 2(B) di dalam Perjanjian Jual Beli tersebut. [8] Pada 19.08.2020 Peguam Plaintif telah mengemukakan bayaran RM100,000.00. Peguam Plaintif melalui surat bertarikh 11.09.2020 telah mengemukakan bayaran berjumlah RM619,048.97 sebagai pembayaran penuh termasuk bayaran faedah. [9] Pada 25.10.2019 itu juga terdapat Perjanjian Tambahan yang berkaitan dengan re imbursement costs dan termination refund. [10] Pada 30.10.2020, Peguam Plaintif telah menulis surat kepada Peguam Defendan bahawa disebabkan Pandemik Covid-19 dan masalah-masalah lain, memohon pelanjutan masa sehingga 31.12.2020 untuk menjelaskan RM300,000.00. [11] Berdasarkan kepada surat bertarikh 19.11.2020, bayaran kembali telah diberikan kepada pihak Plaintif. Namun pihak Plaintif memilih meneruskan kaveat ke atas tanah tersebut. Pihak Plaintif juga mengarahkan peguam beliau tidak menerima bayaran balik jumlah yang telah dibayar kepada Defendan sebelum ini. S/N 3nnkQm7Pqkiw4uMR9rRIqg **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 Tuntutan Plaintif [12] Mahkamah harus meneliti Penyata Tuntutan dan Penyata Pembelaan yang difailkan oleh pihak-pihak. Jika diteliti Penyata Tuntutan Plaintif adalah didapati terdapat Perjanjian Jual Beli hartanah tersebut di antara pihak Plaintif dengan Defendan. Perjanjian Jual Beli telah dikatakan telah dimeterai oleh kedua-dua pihak pada 25.10.2019 dengan harga RM800,000.00. Pihak Plaintif mendakwa telah ada persetujuan untuk melanjutkan tempoh akhir pembayaran penuh harga belian hartanah tersebut. Berkenaan dengan pelanjutan masa tersebut Plaintif menyatakan ia adalah dalam tempoh tiga bulan. Plaintif telah memohon remedi berikut: (a) Perlaksanaan Spesifik Perjanjian Jual Beli bertarikh 25.10.2019 bagi hartanah yang dikenali sebagai H.S.(D) 18171, PT 8798, Mukim Sabai, Tempat Kampung Sungai Dua, Negeri Pahang (selepas ini dirujuk sebagai “Hartanah” tersebut); (b) Perintah bahawa penamatan Perjanjian Jual Beli bertarikh 25.10.2019 dan Perjanjian Tambahan bertarikh 25.10.2019 secara unilateral oleh Defendan adalah tidak sah; (c) Satu injunksi untuk terhadap Defendan bagi menghalang dan/atau menyekat Defendan sama ada secara sendiri dan/atau melalui ejen-ejen dan/atau wakil-wakil Defendan dan/atau melalui sebarang kuasa wakilnya, berurusan S/N 3nnkQm7Pqkiw4uMR9rRIqg **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 dan/atau menjual dan/atau melupuskan Hartanah tersebut kepada mana-mana pihak ketiga sehingga keputusan muktamad tindakan ini; (d) Defendan harus melaksanakan suratcara dan/atau instrumen sah dan boleh didaftar untuk melaksanakan pindahmilik Hartanah tersebut menurut Perlaksanaan Spesifik di perenggan (a) di atas dalam tempoh masa empat belas (14) hari dari tarikh penghakiman; sekiranya gagal, suratcara dan/atau instrument itu hendaklah dilaksanakan oleh Timbalan Pendaftar Mahkamah Tinggi untuk membolehkan pendaftaran dibuat di Pejabat Tanah yang bersesuaian; (e) Kos tindakan; dan (f) Apa-apa relief yang difikirkan suaimanfaat oleh Mahkamah Yang Mulia ini. Selanjutnya, dan secara alternatifnya, sekiranya Mahkamah Yang Mulia ini berpendapat bahawa perintah bagi pelaksanaan spesifik untuk Perjanjan Jual Beli di atas tidak sesuai diberikan, maka Plaintif memohon perintah bahawa: (g) Defendan untuk membayar balik wang deposit berserta dengan gantirugi jumlah tertentu (liquidated damages) besamaan dengan Deposit untuk Hartanah tersebut seperti S/N 3nnkQm7Pqkiw4uMR9rRIqg **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 diperuntukan dalam Klausa 10 Perjanjian Jual Beli bertarikh 25.10.2019 kepada Plaintif Plaintif-Plaintif dalam tempoh masa tujuh (7) hari dari tarikh perintah ini di buat; (h) Defendan untuk membayar membayar balik wang deposit berserta gantirugi jumlah tertentu (liquidated damages) bersamaan dengan Deposit untuk di bawah Perjanjian Tambahan bertarikh 25.10.2019 tersebut kepada Plaintif- Plaintif dalam tempoh masa tujuh (7) hari dari tarikh perintah ini dibuat; (i) Faedah pada kadar 5 % setahun ke atas gantirugi yang tersebut di prayer (g) dan (h) di atas di kira dari tarikh pemfailan Writ ini sehingga tarikh pembayaran penuh dibayar oleh Defendan kepada Plaintif-Plaintif; (j) Defendan untuk membayar gantirugi teruk (exemplary damages) kepada Plaintif-Plaintif; (k) Kos tindakan; dan (l) Apa-apa relief yang difikirkan suaimanfaat oleh Mahkamah Yang Mulia ini. [13] Defendan pula mengemukakan Tuntutan Balas yang difailkan pada 26.01.2021 di KM 13 yang meminta supaya satu deklarasi bahawa penamatan Perjanjian Jual Beli dan Perjanjian Tambahan tersebut oleh S/N 3nnkQm7Pqkiw4uMR9rRIqg **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 Defendan adalah sah. Di samping itu sebarang kaveat persendirian yang dimasukkan oleh Plaintif-Plaintif adalah dibatalkan. Butiran lengkap berkenaan dengan tuntutan balas itu dapat dilihat di perenggan 110 (a) hingga (i) KM 13. [14] Pada masa yang sama Defendan memfailkan satu prosiding Saman Pemula terhadap Plaintif-Plaintif dalam kes CB-24NCvC-187- 12/2020. Dalam Saman Pemula tersebut Defendan yang merupakan Plaintif dalam kes CB-24NCvC-187-12/2020 telah memohon deklarasi dan remedi yang sama seperti yang terdapat dalam Tuntutan Balas Defendan. Oleh itu keputusan dalam kes ini adalah mempunyai kaitan dengan kes CB-24NCvC-187-12/2020. Ini bermakna bagi kes Saman Pemula No. CB-22NCvC-14-12/2020 dijalankan bersama-sama dengan kes CB-24NCvC-187-12/2020. Isu Dalam Kes Ini [15] Penelitian kepada pliding, keterangan saksi-saksi dan eksibit- eksibit yang dikemukakan mahkamah mendapati terdapat isu-isu berikut perlu diputuskan oleh mahkamah, iaitu: (a) sama ada terdapat Perjanjian Jual Beli di antara Plaintif- Plaintif dan Defendan pada 25.10.2019; (b) adakah Perjanjian Tambahan yang berkaitan dengan re imbursement costs dan termination refund adalah S/N 3nnkQm7Pqkiw4uMR9rRIqg **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 sebahagian daripada kontrak perjanjian di antara Plaintif- Plaintif dan Defendan; dan (c) adakah perjanjian tersebut telah tidak dipatuhi oleh Plaintif- Plaintif dengan kegagalan melunaskan keseluruhan bayaran harga hartanah tersebut apabila tamat tempoh yang dipersetujui oleh pihak-pihak dan membolehkan Defendan menamatkan perjanjian tersebut. Isu (a) [16] Kewujudan kontrak di antara Plaintif-Plaintif dan Defendan tidak dipertikaikan oleh pihak-pihak. Malahan dalam tuntutan juga dinyatakan bahawa jumlah harga RM800,000.00 seperti yang terdapat di Fasal 2(B) Perjanjian Jual Beli tersebut. Pembayaran pertama juga telah dibuat dan deposit juga telah diserahkan oleh Plaintif kepada Defendan. Oleh itu mahkamah berpendapat bahawa isu sama ada wujud perjanjian tersebut adalah jelas dan nyata telah dibuktikan oleh Plaintif dalam kes ini. Isu (b) [17] Adalah didapati berdasarkan keterangan yang dikemukakan terdapat perjanjian kedua yang ditandatangani di antara Plaintif dan Defendan yang dikenali sebagai Perjanjian Tambahan sehingga menyebabkan jumlah harga penuh pembelian hartanah tersebut adalah RM1.6 juta. Penelitian kepada perjanjian tersebut menunjukkan S/N 3nnkQm7Pqkiw4uMR9rRIqg **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 bahawa ia adalah merupakan sebahagian daripada perjanjian yang dimeterai sebelum ini. Ia membawa maksud pada hemat mahkamah terma-terma yang terdapat dalam perjanjian pertama itu juga terpakai. [18] Ia dinyatakan di dalam terma Perjanjian Tambahan bertarikh 25.10.2019 di Fasal 1 dan 2. Ini dapat dilihat terutamanya di Fasal 2 seperti berikut: 2. In addition to the sale and purchase of the said Property, the Purchaser has agreed to reimburse the Vendor the sum of Ringgit Malaysia Eight Hundred Thousand (RIM800,000.00) only (hereinafter referred to as "the Reimbursement Costs") being the costs expended by the Vendor to improve the said Property subject to the terms and conditions herein. [19] Ia ditambah pula dengan Klausa 1.01 (iii) Perjanjian Tambahan yang memperihalkan bahawa pembayaran kos tersebut ada kaitan dengan Perjanjian Jual Beli yang dinyatakan seperti berikut: (iii) Full payment of the Reimbursement Costs to the Vendor shall be a condition precedent for the completion of the Sale and Purchase Agreement and in the event that the Purchaser shall for any reason fails to pay the Balance Purchase Price stated in the Sale and Purchase Agreement and interest (if any) within the time stipulated, the Sale and Purchase Agreement and this Agreement may be S/N 3nnkQm7Pqkiw4uMR9rRIqg **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 terminated by the Vendor by a notice in writing and upon such event the Deposit Sum In the Sale and Purchase Agreement and 10% of the Reimbursement Costs paid by the Purchaser shall be forfeited. Adakah Perjanjian Tambahan ini berkaitan dengan perjanjian asal [20] Apabila terdapat dokumen-dokumen yang berkaitan dengan satu perjanjian atau mempunyai transaksi yang sama pendekatan yang perlu dilakukan semasa meneliti dokumen-dokumen berkaitan perjanjian tersebut dinyatakan dalam kes Manks v Whiteley [1912] 1 Ch. 735 seperti berikut: “Each is executed on the faith of all the others being executed also and is intended to speak only as part of the one transaction, and if one is seeking to make equities apply to the parties they must be equities arising out of the transaction as a whole. It is not open to third parties to treat each one of them as a deed representing a separate and independent transaction for the purpose of claiming rights which would only accrue to them if the transaction represented by the selected deed was operative separately. In other words, the principles of equity deal with the substance of things, which in such a case is the whole transaction, and not with unrealities such as the hypothetical operation of one of the deeds by itself without the others.” S/N 3nnkQm7Pqkiw4uMR9rRIqg **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 [21] Pendekatan dalam kes Manks v Whiteley (supra) disahkan oleh Mahkamah Pertuanan dalam kes Whiteley v Delaney [1914] AC 132. Ia juga telah diterima pakai dalam bidang kuasa negara ini dalam kes Idris bin Haji Mohamed Amin v Ng Ah Siew [1935] 1 MLJ 257 yang menyatakan seperti berikut: “It is a well known rule of construction that where the arrangement between parties is contained in several documents all executed simultaneously, all the documents must be read together to ascertain the intention of the parties, and it is a corollary from this that the intention must be gathered from the documents as a whole. It has been held, for example, that when a Bill of Sale and a mortgage of a reversionary interest were executed simultaneously and related to the same debt, the bill of sale could be defeated by a condition contained only in the mortgage,Edwards v Marcus (1894) 1 QB 587 [see also the dissenting judgment of Fletcher Moulton, L. J. in Manks v Whiteley (1912) 1 Ch 735 which was approved on appeal to the House of Lords, sub nominee Whiteley v Delaney (1914) AC 132.]” [22] Kedudukan kes ini juga telah ditegaskan dalam kes Mohamed Isa & Ors v Abdul Karim & Ors [1970] 2 MLJ 165 yang menyatakan seperti berikut: “It is a settled rule of construction that where several documents forming part of one transaction are executed S/N 3nnkQm7Pqkiw4uMR9rRIqg **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 contemporaneously, all the documents must be read together as if they are one (see Manks v Whiteley [1912] 1 Ch 735. This principle was followed in Idris bin Haji Mohamed v. Ng Ah Siew, supra, where Terrell J. at page 261 said: "It is a well known rule of construction that where the arrangement between parties is contained in several documents all executed simultaneously, all the documents must be read together to ascertain the intention of the parties, and it is a corollary from this that the intention must be gathered from the documents as a whole. It has been held, for example, that when a bill of sale and a mortgage of a reversionary interest were executed simultaneously and related to the same debt, the bill of sale could be defeated by a condition contained only in the mortgage, Edwards v Marcus [1894] 1 QB 587 (see also the dissenting judgment of Fletcher Moulton L.J. in Manks v. Whiteley, which was approved on appeal to the House of Lords, sub-nominee Whiteley v Delaney [1914] AC 132)." [23] Ia juga telah disahkan oleh Mahkamah Persekutuan dalam kes Sri Kelangkota-Rakan Engineering JV Sdn Bhd & Anor v. Arab- Malaysian Prima Realty Sdn Bhd & Ors [2003] 3 CLJ 349. [24] Oleh yang demikian dalam kes ini adalah didapati bahawa Perjanjian Jual Beli asal yang terdapat di halaman 6 Ikatan B adalah S/N 3nnkQm7Pqkiw4uMR9rRIqg **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 bertarikh 25.10.2019. Perjanjian Tambahan adalah bertarikh 25.10.2019. Ini bermakna dokumen tersebut disediakan dan dipersetujui pada tarikh yang sama. Oleh yang demikian adalah sukar untuk menyatakan bahawa Perjanjian Jual Beli asal dan Perjanjian Tambahan itu tidak mempunyai kaitan. Malahan penelitian kepada Perjanjian Tambahan tersebut menunjukkan ia tidak dapat berdiri dengan sendiri melainkan perlu diteliti bersama-sama dengan perjanjian asal. [25] Mahkamah ini berpendapat berdasarkan kepada prinsip-prinsip dalam kes Idris bin Haji Mohamed Amin (supra), Mohamed Isa & Ors (supra), Sri Kelangkota-Rakan Engineering JV Sdn Bhd & Anor (supra), mahkamah perlu meneliti kedua-dua dokumen secara bersekali. Ini bermakna harga atau jumlah wang yang perlu dijelaskan oleh pihak Plaintif kepada Defendan adalah kesemuanya berjumlah RM1.6 juta. Pada masa yang sama mahkamah juga melihat kepada klausa (iii) dalam Perjanjian Tambahan yang menyatakan seperti berikut: “3.01 Time to be of the essence Time wherever mentioned shall be deemed to be of the essence of this Agreement.” [26] Malahan semasa Wong Wei Ee (SP1) memberikan keterangan yang telah mengesahkan semasa pemeriksaan balas di halaman 16 nota keterangan mengesahkan bahawa harga jualan tanah tersebut adalah RM1.6 juta. Ia menyatakan seperti berikut: S/N 3nnkQm7Pqkiw4uMR9rRIqg **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 “D I asked you earlier to confirm the said selling price of RM1.6 million and you said it is. WEI Yes, correct. D My question to you is, the other RM800,000.00 not mentioned in the sale and purchased agreement comes in through a supplementary agreement. This is not also in dispute, correct? WEI Yes, correct.” [27] Ia juga selari dengan surat daripada Plaintif kepada Defendan bertarikh 17.11.2020 di halaman 49 Ikatan B yang mengesahkan di perenggan (c) surat tersebut seperti berikut: “c. our client had paid a total of RM1,280,000.00 of the total consideration of RM1,600,000.00.” [28] Ini bermakna jika benar harga RM800,000.00 sahaja maka Plaintif tidak sepatutnya membayar jumlah yang lebih daripada RM800,000.00. Namun surat di muka surat 49 tersebut mengesahkan bahawa bayaran tersebut adalah keseluruhannya RM1.6 juta di mana setakat surat itu ditulis bayaran yang dibuat adalah sebanyak RM1,280,000.00 iaitu melebihi RM800,000.00. Ini menyokong dapatan bahawa harga yang terlibat dalam perjanjian ini adalah RM1.6 juta dan bukannya RM800,000.00 seperti yang dinyatakan oleh pihak Plaintif. S/N 3nnkQm7Pqkiw4uMR9rRIqg **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 Pelanjutan tempoh tindakan memuktamadkan perjanjian dengan pengemukaan bayaran penuh dalam tempoh yang dipersetujui [29] Penelitian kepada Penyataan Tuntutan yang dikemukakan oleh pihak Plaintif telah dinyatakan bahawa melalui surat bertarikh 02.07.2020 Peguam Defendan telah memaklumkan bahawa tarikh memuktamadkan perjanjian telahpun luput pada 01.07.2020. Dalam surat tersebut juga dinyatakan bahawa Plaintif perlu menjelaskan harga belian pada atau sebelum 01.09.2020 dengan membayar faedah lewat sebanyak 8 % setahun. Surat tersebut dalam dilihat di halaman 33 Ikatan B. [30] Defendan dikatakan telah melalui surat bertarikh 04.09.2020 iaitu di muka surat 39 Ikatan B telah bersetuju untuk melanjutkan tempoh masa pembayaran baki harga jualan selama dua (2) bulan mulai 02.09.2020 hingga 01.11.2020 dengan syarat pihak Plaintif membayar faedah lewat sebanyak 8 % setahun atas baki harga jualan daripada 02.09.2020 sehingga pembayaran penuh. Pihak Plaintif juga dikehendaki membayar wang sejumlah RM300,000.00 kepada Defendan pada atau sebelum 11.09.2020. [31] Pihak Plaintif menyatakan bahawa melalui perbincangan lisan di antara pihak Plaintif dan Defendan tempoh masa yang dipersetujui untuk dilanjutkan oleh Defendan adalah selama tiga (3) bulan tetapi melalui surat bertarikh 04.09.2020 pelanjutan masa hanya diberikan selama dua (2) bulan sahaja. Pihak Defendan telah mengemukakan satu salinan emel untuk perjanjian tersebut ditamatkan. S/N 3nnkQm7Pqkiw4uMR9rRIqg **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 [32] Pihak Plaintif menyatakan bahawa pada 11.09.2020 Plaintif telah membayar keseluruhan harga belian jual beli hartanah tersebut. Oleh itu tidak ada isu berkenaan kemungkiran Plaintif dalam menjelaskan keseluruhan jumlah bayaran harga belian tanah tersebut. Penelitian kepada surat bertarikh 11.09.2020 oleh Peguam Plaintif menyatakan bahawa ia adalah bayaran penuh kepada harga jualan tersebut. Penelitian kepada surat itu menunjukkan bahawa bayaran dibuat kepada Defendan oleh Plaintif pada hari akhir pelanjutan tempoh bayaran iaitu 11.09.2020. [33] Seterusnya mahkamah juga mendapati bahawa Peguam Defendan melalui surat bertarikh 03.11.2020 di halaman 47 Ikatan B telah mengembalikan wang sebanyak RM1,120,000.00 sebagai bayaran balik kepada Plaintif-Plaintif dan memaklumkan bahawa Perjanjian Jual Beli tersebut ditamatkan. Ia adalah ekoran surat bertarikh 30.10.2020 iaitu di muka surat 45 Ikatan B. [34] Dalam kes ini juga pihak-pihak telah membangkitkan sama ada dengan berlakunya Pandemik Covid-19 yang tidak membolehkan pihak Plaintif membuat bayaran seperti yang dipersetujui maka tempoh masa untuk penyelesaikan tersebut sepatutnya lebih panjang daripada yang dipersetujui. Begitu juga terdapat dakwaan bahawa wujudnya perjanjian lisan di antara kedua-dua pihak bagi melanjutkan tempoh masa lebih daripada tarikh 01.11.2020. [35] Dalam kes ini mahkamah mendapati bahawa tempoh masa untuk penyelesaian bayaran tersebut telahpun dilanjutkan. Berdasarkan S/N 3nnkQm7Pqkiw4uMR9rRIqg **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 kepada dokumen yang dikemukakan di mahkamah ia dilanjutnya sehingga 01.11.2020. Mahkamah mendapati tiada sebarang keterangan dokumentari bagi menunjukkan bahawa tarikh tersebut dilanjutkan melebihi 01.11.2020. Perjanjian lisan yang dikatakan wujud berkenaan dengan pelanjutan tempoh tersebut tidak disokong oleh mana-mana keterangan bebas dan dokumen-dokumen. Pada masa yang sama mahkamah juga perlu mengambil perhatian kepada surat bertarikh 01.12.2020 yang mencadangkan bahawa pada tarikh tersebut keseluruhan bayaran telah dibuat oleh pihak Plaintif kepada Defendan. Ini bermakna setelah bayaran dibuat penuh oleh pihak Plaintif maka hartanah tersebut perlu dipindah milik kepada pihak Plaintif. Mahkamah juga mengambil perhatian bahawa Defendan tidak dapat dihubungi Plaintif selepas tarikh 01.11.2020 sehinggalah Plaintif menerima surat penamatan perjanjian tersebut. Namun ia tidak dapat menunjukkan bahawa bayaran RM1.6 juta telah dibuat pada 01.11.2020. Isu (c) [36] Persoalan dalam kes ini ialah adakah Plaintif-Plaintif telah gagal mematuhi terma-terma perjanjian tersebut dan adakah pembayaran pada 01.12.2020 tersebut adalah menunjukkan bahawa harga jualan penuh telah diselesaikan oleh Plaintif. Pada masa yang sama adakah pihak Defendan berhak untuk menamatkan perjanjian tersebut ekoran daripada kegagalan pihak Plaintif untuk menjelaskan harga penuh jualan tersebut dalam tempoh yang telah dipersetujui termasuk tempoh pelanjutan. S/N 3nnkQm7Pqkiw4uMR9rRIqg **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 [37] Dalam kes ini mahkamah juga mendapati keterangan menunjukkan bahawa setelah surat penamatan dikeluarkan oleh Defendan terdapat urus niaga Defendan dengan pihak ketiga untuk menjual tanah tersebut. Plaintif menyatakan bahawa sepatutnya urus niaga itu tidak boleh dilakukan sehingga terlerainya kontrak di antara Plaintif dan Defendan. Ia mencadangkan bahawa Defendan dengan sedar menamatkan perjanjian dengan Plaintif bagi membolehkan urus niaga dengan pihak ketiga diteruskan. Ia tidak dapat mengubah fakta bahawa keseluruhan bayaran sebanyak RM1.6 juta tidak dibuat pada 01.11.2020. [38] Mahkamah berpendapat bahawa bayaran penuh perlu dibuat dalam tempoh masa yang telah dipersetujui oleh Plaintif dan Defendan. Dalam kes ini tempoh akhir adalah pada 01.11.2020. Pada hemat mahkamah dakwaan perlanjutan masa pembayaran selepas daripada 01.11.2020 yang dikatakan timbul ekoran daripada perbualan telefon di antara individu bernama Miss Can dan Miss Siok Leng seperti yang didakwa oleh Plaintif tidak dapat diterima sebagai satu keterangan. Mahkamah mendapati tiada keterangan bagi menyokong dakwaan tersebut. Ini juga tidak dapat menyokong dakwaan bahawa bayaran telah dibuat selepas tarikh 01.11.2020. ini adalah disebabkan tempoh akhir Plaintif perlu menjelaskan pembayaran tersebut telahpun tamat pada 01.11.2020. [39] Pemulangan wang yang telah dibayar oleh Plaintif kepada Defendan jelas menunjukkan bahawa Defendan tidak lagi ingin meneruskan perjanjian tersebut. Dalam erti kata lain ia adalah ekoran S/N 3nnkQm7Pqkiw4uMR9rRIqg **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 daripada kegagalan pihak Plaintif untuk menunaikan terma-terma perjanjian terutamanya berkaitan dengan bayaran harga jualan hartanah tersebut iaitu sebanyak RM1.6 juta. [40] Seterusnya apa yang menarik dalam kes ini ialah pada akhir tarikh 01.11.2020 Plaintif mengutuskan sepucuk surat yang menyatakan bayaran keseluruhan akan dibuat pada tarikh tersebut. Persoalannya, adakah Defendan ada menerima bayaran pada tarikh 01.11.2020? Mahkamah cuba mengesan keterangan tersebut dalam keterangan saksi-saksi Plaintif dan Defendan dan mahkamah mendapati bahawa surat tersebut tidak dapat disokong oleh mana-mana keterangan bahawa Defendan telah menerima jumlah wang tersebut pada 01.11.2020. Apa yang ada ialah surat Defendan yang memulangkan kembali wang tersebut yang dikemukakan pada 03.11.2020 setelah bayaran penuh dibuat seperti yang didakwa oleh Plaintif pada 11.09.2020 surat di muka surat 42 Ikatan B dan 30.10.2020. Surat pada 30.10.2020 itu adalah bayaran tambahan dan bayaran lewat. [41] Isu yang timbul dalam kes adalah adakah pembayaran pada 11.09.2020 adalah bayaran keseluruhan harga jualan hartanah tersebut atau termasuk bayaran untuk perjanjian tambahan tersebut. Penelitian kepada surat bertarikh 17.11.2020 menunjukkan bahawa pada 17.11.2020 keseluruhan bayaran yang telah dibuat adalah sebanyak RM1,280,000.00. Pada 28.10.2020 melalui surat permohonan Plaintif untuk melanjutnya tempoh pembayaran telah tidak dipersetujui oleh Defendan dan berhasrat menamatkan perjanjian tersebut. S/N 3nnkQm7Pqkiw4uMR9rRIqg **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 [42] Apa yang jelas daripada penelitian keterangan ialah setakat 17.11.2020 bayaran yang dibuat hanyalah RM1,280,000.00 daripada jumlah keseluruhan yang sepatutnya dibayaran RM1.6 juta. Ini bermakna pembayaran sepenuhnya harga RM1.6 juta itu masih belum dijelaskan oleh Plaintif sehingga tarikh akhir pelanjutan tempoh 01.11.2020. Pada hemat mahkamah ini mewajarkan tindakan Defendan untuk menamatkan perjanjian tersebut. [43] Dalam perjanjian asal terdapat fasal yang berkaitan dengan masa sebagai pati kepada kontrak. Ia dinyatakan dalam Fasal 19 Perjanjian Jual Beli tersebut. Tatacara pembayaran bayaran harga pembelian tanah tersebut dinyatakan di bawah Fasal 2 (b) perjanjian asal. [44] Oleh yang demikian Mahkamah berpendapat segala pembayaran jumlah penuh RM1.6 juga tersebut adalah tertakluk kepada tempoh masa yang dipersetujui untuk pembayaran itu dibuat. [45] Plaintif melalui surat bertarikh 30.10.2020 memohon supaya tempoh masa dilanjutkan bagi membolehkan Plaintif membuat pembayaran penyelesaian penuh jumlah harga bayaran di bawah perjanjian tersebut. Dalam surat tersebut dinyatakan frasa seperti berikut: “As good faith, our clients have settled the total purchase price under the SPA and part of the additional payment.” S/N 3nnkQm7Pqkiw4uMR9rRIqg **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 Melalui surat tersebut bayaran yang dibayar adalah sebanyak RM409,310.68 melalui cek Bank Hong Leong bertarikh 28.10.2020. [46] Defendan melalui surat bertarikh 03.11.2020 memaklumkan berkenaan penamatan perjanjian jual beli tersebut disebabkan Plaintif telah gagal untuk menjelaskan bayaran sebanyak RM1.6 juta seperti yang dipersetujui pada tarikh 01.11.2020. Dalam surat tersebut juga dimaklumkan bahawa Defendan akan memulangkan wang sejumlah RM1,120,000.00 dan akan merampas deposit sebanyak RM160,000.00. Dalam surat tersebut juga telah dikemukakan cek bagi jumlah RM1,120,000.00. [47] Seterusnya Plaintif telah mengemukakan surat bertarikh 17.11.2020 yang memaklumkan bahawa Plaintif ingin meneruskan Perjanjian Jual Beli tersebut dan hanya memohon agar tempoh untuk melunaskan pembayaran itu dilanjutkan. Ini adalah disebabkan pihak Plaintif mempunyai masalah kewangan ketika itu. Malahan dikatakan bahawa tindakan Defendan menamatkan perjanjian tersebut adalah tidak teratur. Dalam surat tersebut juga Plaintif menyatakan bahawa bayaran baki sebanyak RM1,440,000.00 akan dijelaskan. [48] Defendan melalui surat bertarikh 19.11.2020 menegaskan bahawa dia tidak bersetuju untuk melanjutkan tempoh pembayaran harga jual beli tersebut malahan meminta supaya Plaintif membatalkan kaveat yang telah difailkan di atas tanah tersebut. S/N 3nnkQm7Pqkiw4uMR9rRIqg **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 Dapatan Mahkamah [49] Dalam kes ini Mahkamah mendapati bahawa Defendan telah bersetuju untuk melanjutnya tempoh pembayaran hartanah tersebut. Namun demikian adalah didapati bahawa semasa sepanjang tempoh pelanjutan masa tersebut Plaintif tidak dapat melunaskan baki pembelian hartanah tersebut. [50] Adalah tidak dapat dinafikan bahawa pihak Plaintif telah memohon supaya tempoh masa tersebut dilanjutkan. Namun ia tidak dipersetujui oleh Defendan. [51] Oleh itu Plaintif adalah berhak di bawah terma perjanjian bertarikh 25.10.2019 untuk menamatkan perjanjian tersebut dengan Defendan atas alasan Defendan tidak melunaskan bayaran yang dipersetujui RM1.6 juta pada tarikh 01.11.2020. [52] Oleh itu mahkamah memutuskan tuntutan Plaintif ditolak dengan kos dan tuntutan balas Defendan di para 110 (d) dalam KM 13 dibenarkan. [53] Setelah mahkamah memutuskan berkenaan tuntutan pihak Plaintif di bawah nombor kes CB-22NCvC-14-12/2020 mahkamah juga berpendapat bahawa tuntutan Defendan kepada Plaintif dalam No. Kes CB-24NCvC-187-12/2020 tidak lagi wajar dipertimbangkan oleh mahkamah disebabkan ia melibatkan perjanjian yang sama dan isu-isu yang sama. Ini menyebabkan remedi yang dipohon dalam Saman S/N 3nnkQm7Pqkiw4uMR9rRIqg **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 Pemula tersebut tidak lagi wajar dipertimbangkan oleh mahkamah ini. Ini disebabkan ianya telah diteliti dan diputuskan dalam kes CB- 22NCVC-14-12/2020. Bertarikh: 23hb. November 2023 (ROSLAN BIN MAT NOR) HAKIM MAHKAMAH TINGGI MALAYA TEMERLOH, PAHANG DARUL MAKMUR PIHAK-PIHAK: Bagi Pihak Plaintif Kalai Selvi P.M Muthu dan Malar Loganathan Tetuan Kamil Hashim Raj & Lim Petaling Jaya, Selangor Darul Ehsan Bagi Pihak Defendan Darshan Kumar dan Lau Yih Ying Tetuan Ying & Co Bentong, Pahang Darul Makmur S/N 3nnkQm7Pqkiw4uMR9rRIqg **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

CA-A73KJ-237-09/2021

PLAINTIF Chaw Li Yeuan DEFENDAN 1. ) MOKHYIDDIN BIN ABU BAKAR 2. ) ESAH BINTI ABDUL RAHMAN

KES KEMALANGAN JALAN RAYA - 2 Laporan Penyelaras - Samada laporan penyelaras boleh diterima pakai - Samada laporan penyelaras oleh penyelaras yang tidak hadir secara fizikal melihat kerosakkan boelh diterima pakai

23/11/2023

Puan Nor Izzati binti Zakaria

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=e3f1e663-3463-4d42-9f61-ab792e2cb77a&Inline=true

Microsoft Word - AP 1 DI DALAM MAHKAMAH MAJISTRET DI KUANTAN DALAM NEGERI PAHANG GUAMAN SIVIL: CA-A73KJ-237-09/2021 ANTARA CHAW LI YEUAN [NO. KAD PENGENALAN: 910421065068] ... PLAINTIF DAN 1) MOKHYIDDIN BIN ABU BAKAR [NO. KAD PENGENALAN: 530927015987] 2) ESAH BINTI ABDUL RAHMAN [NO. KAD PENGENALAN: 571124065156] ...DEFENDAN-DEFENDAN ALASAN PENGHAKIMAN Pendahuluan [1] Ini adalah rayuan Defendan terhadap keputusan Mahkamah ini yang telah membenarkan tuntutan Plaintif sebanyak RM23,583-45.00. Kes ini didengar secara bicara penuh di mana Plaintif telah memanggil 3 orang saksi manakala Defendan telah memanggil 1 orang saksi. Atas imbangan kebarangkalian, Mahkamah memutuskan untuk membenarkan tuntutan Plaintif. Alasan adalah seperti mana dirungkaikan seperti berikut. 23/11/2023 21:35:10 CA-A73KJ-237-09/2021 Kand. 38 S/N Ybx42M0Qk2fYat5Liy3eg **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Latar Belakang Kes [2] Plaintif merupakan pemilik berdaftar motorkar No. CCK 6366 pada sepanjang masa kemalangan yang berkenaan dan beralamat di No. D- 1239, Lorong Bukit Setongkol Jaya 4, Taman Desa Serindit, Jalan Kg. Jawa, 25200 Kuantan, Pahang Darul Makmur. [3] Defendan Pertama merupakan pemilik berdaftar Motorkar No. WHA 9195 pada sepanjang mas akemalangan yang berkenaan dan beralamat di No. 1/220, Kampung Jeram Beserah, 26100 Kuantan, Pahang Darul Makmur. [4] Defendan Kedua merupakan pemandu Motorkar No. WHA pada sepanjang masa kemalangan yang berkenaan dan beralamat di No. 81- K Jalan Seri Murni, Taman Seri Pengkalan Chepa, 16100 Kelantan. [5] Pada 3/12/2020, terdapat satu kemalangan di antara Plaintif yang sedang memandu Motorkar No. CCK 6366 dengan Defendan Kedua yang sedang memandu Motorkar No. WHA 9195. Versi Plaintif [6] Pada 3/12/2020, jam lebih kurang 1.00 pagi, ketika Plaintif di dalam perjalanannya dari Yonming Industri ke Jalan Jabor Lama dengan memandu Motorkar No. CCK 6366 secara sah di sisi undang-undang dan apabila Plaintif tersebut sampai di Simpang Jabor Lama, Defendan Kedua telah dengan cuai sekali memandu, mengendali dan/atau mengawal S/N Ybx42M0Qk2fYat5Liy3eg **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 Motorkar No. WHA 9195 apabila Defendan Kedua telah cuba mengambil cermin mata yang jatuh dan telah menyebabkan Motorkar No. WHA 9195 terbabas. [7] Tindakan tersebut telah menyebabkan Motorkar No. WHA 9195 yang dipandu oleh Defendan Kedua yang datang dari arah bertentangan telah secara tiba-tiba menceroboh masuk ke dalam laluan perjalanan Motorkar No. CCK 6366 pada bahagian hadapan dan sisi kanan dan telah mengakibatkan Motorkar No. CCK 6366 mengalami kerosakan yang teruk. [8] Akibat dari kecuaian Defendan-Defendan yang tersebut di atas, Plaintif telah menanggung perbelanjaan dan mengalami kerugian apabila melantik penyelaras bagi menafsirkan kerugian dan membaikpulih Motorkar No. CCK 6366 mengikut laporan penyelaras. Versi Defendan [9] Pada 3/12/2020, Defendan-Defendan telah terlibat dengan satu kemalangan jalanraya yang melibatkan Motorkar No. WHA 9195 dan Motorkar No. CCK 6366. Defendan-Defendan menegaskan bahawa kemalangan berlaku disebabkan oleh kecuaian Plaintif sendiri yang telah memasuki laluan sah pihak Defendan Kedua lantas menyebabkan kemalangan berlaku. [10] Defendan-Defendan juga menafikan bertanggungjawab secara keseluruhan terhadap kemalangan berlaku dan berhujah bahawa Plaintiflah yang bertanggungjawab sepenuhnya/sebahagian besarnya. S/N Ybx42M0Qk2fYat5Liy3eg **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 Dapatan Mahkamah [11] Memandangkan pihak-pihak telah bersetuju untuk merekodkan liabiliti iaitu Plaintif bertanggungan sebanyak 10% dan Defendan- Defendan bertanggungan sebanyak 90% kecuaian, maka Mahkamah akan menghuraikan dapatan untuk isu kuantum sahaja. [12] Di dalam mentaksirkan nilai ganti rugi, Mahkamah mestilah memberikan award pampasan yang adil berdasarkan bukti yang kukuh. Di dalam kes di Mahkamah Persekutuan INAS FAIQAH MOHD HELMI (A CHILD SUING THROUGH HER FATHER AND NEXT FRIEND; MOHD HELMI ABDUL AZIZ) V. KERAJAAN MALAYSIA & ORS [2016] 2 CLJ 885, Abdull Hamid Embong HMP menyampaikan penghakiman mahkamah: “(1) Adalah undang-undang matan bahawa ganti rugi bertindak sebagai pampasan, bukan ganjaran dan hukuman. Dalam mentaksirkan ganti rugi, mahkamah tidak patut didorong oleh simpati dan memberikan award pampasan yang adil berdasarkan bukti yang kukuh. Mahkamah tidak boleh mengamalkan spekulasi. Penilaian keterangan yang membentukkan dasar risiko kerugian masa hadapan harus dilaksanakan. Hakim bicara hanya boleh menilaikan keterangan sedemikian berasaskan standard imbangan kebarangkalian yang telah diiktirafkan, tetapi dengan satu tahap ketentuan lebih rendah berkenaan kejadian kehilangan atau kerugian masa hadapan. Tahap lebih rendah yang dipakai itu adalah sesuai diistilahkan S/N Ybx42M0Qk2fYat5Liy3eg **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 dengan perkataan 'possibility', 'chance', 'risk', 'danger' atau 'likelihood', tetapi, walau apa pun perkataan-perkataan yang digunakan dan semantiknya, mereka mestilah pada dasarnya bersifat substantif dan bukan spekulatif.” [13] Mahkamah juga merujuk kepada kes Mahkamah Persekutuan di dalam kes DATUK MOHD ALI HJ ABDUL MAJID & ANOR V. PUBLIC BANK BHD [2014] 6 CLJ 269 yang menyatakan seperti berikut: “[31] The object of an award of damages is to give the claimant compensation for the damage, loss or injury he has suffered. The general principle governing the measure of damages has its origin in the words of Lord Blackburn in Livingstone v. Rawyards Coal Co [1880] 5 App Cas 25 where he said: ... that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation. [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 S/N Ybx42M0Qk2fYat5Liy3eg **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 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: 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 the particulars, and, so to speak, throw them at the head of the court, saying: 'This is what I have lost, I ask you to give me these damages'. They have to prove it. 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.” GANTI RUGI KHAS [14] Di dalam menentukan jumlah yang patut diberikan, Mahkamah ini menggunakan prinsip yang diketengahkan di dalam kes Mahkamah Persekutuan iaitu NGOOI KU SIONG & ANOR V. AIDIL ABDULLAH S/N Ybx42M0Qk2fYat5Liy3eg **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 [1984] 1 CLJ REP 294; [1984] 1 MLRA 200, Hakim Mahkamah Persekutuan, Syed Agil Barakbah telah menyatakan seperti berikut: - "Special damages on the other hand have to be specifically pleaded and strictly proved. They refer to past expenses and loss of earnings. The exact loss must be pleaded where the precise amount of item has become clear before the trial. Loss of future earnings or post-trial loss differs from pre-trial loss which comes under special damages. The reason that special damages have to be specifically pleaded is in order to comply with its object which is to crystallize the issue and to put the defendants on their guard and tell them what they have to meet when the case comes on trial. (See Domsalla v. Barr [1969] WLR 630; Phillips v. Phillips [1878] QBD 127, 139 and Ong Ah Long v. Dr. S. Underwood [1983] CLJ (Rep) 300." i) Kos membaikpulih Motorkar No. CCK 6366; [15] Di dalam kes ini, Plaintif telah mengemukakan Laporan Penyelaras Plaintif yang telah ditandakan sebagai P6 di mana Penyelaras Plaintif hadir sendiri memberi keterangan sebagai SP3 dan telah mentaksirkan kos kerugian berjumlah RM22,130-95. Manakala Defendan pula telah menyediakan Laporan Penyelaras Defendan yang telah ditandakan sebagai D12 di mana Penyelaras Defendan hadir memberi keterangan sebagai SD1 dan telah mentaksirkan kos kerugian berjumlah RM5,965- 29. S/N Ybx42M0Qk2fYat5Liy3eg **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 [16] Mahkamah telah menilai kedua-dua hujahan pihak-pihak, P6 dan D12 adalah merupakan laporan penyelaras daripada dua penyelaras yang berbeza terhadap kerosakan satu kenderaan yang sama. Namun begitu, satu perbezaan besar terhadap jumlah penilaian terhadap kerosakkan kenderaan tersebut telah dibuat oleh dua penyelaras yang berbeza. Mahkamah ini berpendapat pemeriksaan secara fizikal atau kediri ke atas kenderaan yang rosak tersebut perlulah dilakukan untuk mengenalpasti kerosakkan yang tepat dan terperinci. [17] Di dalam kes ini, perhatian haruslah diberikan bahawa P6 telah dinilai oleh penyelaras Plaintif dengan pemeriksaan secara fizikal terhadap Motorkar No. CCK 6366 di mana kesemua alat-alat ganti yang rosak beserta butiran kerosakkan telah di senaraikan di dalam P6. Manakala, berbeza pula dengan D12 di mana penyelaras Defendan di dalam kes ini hanya membuat penilaian berdasarkan gambar-gambar kerosakan berpandukan P6 sahaja. [18] Selain itu juga, SD1 di dalam D12 telah tidak membenarkan beberapa item untuk diganti yang baru atas alasan bahawa item-item tersebut tidak rosak atau rosak teruk serta masih boleh digunakan semula tanpa penggantian alat-alat tersebut. Pada hemat Mahkamah, SD1 boleh hadir ke bengkel yang membaikpulih untuk melihat sendiri alat-alat ganti yang rosak tersebut, namun SD1 hanya membuat penilaian berdasarkan kepada gambar-gambar sahaja. [19] Selain itu juga, Defendan-Defendan turut mengemukakan laporan penyelaras Defendan CS Tang yang ditandakan sebagai ID D11 yang S/N Ybx42M0Qk2fYat5Liy3eg **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 telah menaksirkan jumlah kerugian sebanyak RM5,965-29. Mahkamah berpendapat ID D11 tidak boleh dipertimbangkan kerana ianya merupakan hearsay memandangkan penyelaras yang menyediakan laporan tersebut tidak hadir untuk memberi keterangan berkenaan dengan laporan yang telah dibuat. [20] Mahkamah ini merujuk kepada kes Mahkamah Persekutuan di dalam CAPITAL INSURANCE BHD V. CHEONG HENG LOONG GOLDSMITHS (KL) SDN BHD [2005] 4 CLJ 1; [2005] 6 MLJ 593 di mana penyelaras tidak dipanggil memberi keterangan, Mahkamah Persekutuan memutuskan bahawa laporan penyelaras tersebut tidak diterima sebagai bukti di Mahkamah: "[34] It is clear that the findings that 'there was a robbery that was carefully planned' is based on interviews with the insured, his colleagues who were with the insured at the time of the alleged robbery and discussions with the police and not from his own personal knowledge. None of the persons interviewed were called to give evidence to substantiate that the robbery did take place. For these reasons I rule that the evidence in respect of the robbery in the report is clearly hearsay. In Malaysia National Insurance Sdn Bhd v. Malaysia Rubber Development Corp [1986] 1 LNS 168; [1986] 2 MLJ 124 Lee Hun Hoe CJ (Borneo) had this to say on evidence derived from interviews at p 127: S/N Ybx42M0Qk2fYat5Liy3eg **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 In our view the material part of the evidence was derived from interviews and not from his own knowledge. The learned judge was perfectly right to hold such evidence was hearsay. ... [84] P9 does not prove the fact of robbery. The content is hearsay, the opinion of the adjusters has no evidential value... ". [21] Sehubungan dengan itu, Mahkamah ini berpuas hati dengan keterangan SP3 yang telah mentaksirkan kos kerugian berjumlah RM22,130-95 memandangkan SP3 yang telah memeriksa sendiri kerosakkan kenderaan tersebut berbanding dengan SD1 yang hanya memeriksa kerosakkan kenderaan tersebut berdasarkan gambar-gambar sahaja. Justeru, jumlah RM22,130-95 adalah dibenarkan. ii) Kerugian kegunaan Motorkar No. CCK 6366 selama 14 hari; [22] Untuk jumlah kerugian kegunaan Motorkar No. CCK 6366 selama 14 hari, Mahkamah ini merujuk kepada P6 yang menyatakan bahawa jangkaan masa pembaikpulihan adalah selama 14 hari. Justeru, Mahkamah memutuskan bahawa sejumlah RM30 sehari adalah munasabah di mana secara keseluruhannya Mahkamah membenarkan RM420-00. S/N Ybx42M0Qk2fYat5Liy3eg **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 iii) Bayaran yuran penyelaras Motorkar No. CCK 6366; dan [23] Mahkamah ini berpuas hati untuk membenarkan yuran penyelaras berjumlah RM1,022-50 memandangkan SP1 dan SP3 telah memberi keterangan bahawa jumlah tersebut sememangya telah dibayar. Ini boleh dilihat di P7A dan P7B. iv) Bayaran ekstrak JPJ Motorkar No. CCK 6366 [24] Mahkamah mendapati terdapatnya resit bayaran sebanyak RM10- 00 dikemukakan oleh Plaintif iaitu P4 oleh, itu item ini dibenarkan. Kesimpulan [25] Setelah meneliti keterangan saksi-saksi, eksibit-eksibit dan mengambil kira hujahan-hujahan yang telah difailkan oleh kedua-dua pihak, maka atas imbangan kebarangkalian, Mahkamah membenarkan Para 7 (a), (b), (c) dan (d) dan Para 8 (a) dan (b) di Pernyataan Tuntutan seperti berikut: GANTI RUGI KHAS PLAINTIF i) Kos membaikpulih Motorkar No. CCK 6366 – RM22,130-95 ii) Kerugian kegunaan Motorkar No. CCK 6366 selama 14 hari pada kadar RM30 sehari – RM420-00 iii) Bayaran yuran penyelaras Motorkar No. CCK 6366 – 1,022-50; dan S/N Ybx42M0Qk2fYat5Liy3eg **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 iv) Bayaran ekstrak JPJ Motorkar No. CCK 6366 – RM10-00 Maka dengan ini, Mahkamah membenarkan tuntuan seperti berikut: (a) Ganti Rugi Khas sebanyak RM23,583-45.00; (b) Faedah seperti berikut: (i) 4% setahun untuk Gantirugi Khas mulai dari tarikh kemalangan sehingga tarikh Penghakiman ini. (ii) 8% setahun untuk jumlah penghakiman yang termasuk Ganti Rugi Khas serta kos tindakan ini mulai dari tarikh Penghakiman Ini sehingga tarikh pembayaran penuh (c) Kos bagi tindakan ini mengikut skala mengikut KKM 2012 BERTARIKH: 22HB NOVEMBER 2023 (NOR IZZATI BINTI ZAKARIA) Majistret Mahkamah Majistret Kuantan, Pahang Peguam: Plaintif: Eqa Syaqirra binti Abdul Latiff daripada Resan & Associates Defendan: Nadia Edlina binti Zulkifli daripada Tetuan Shan & Su S/N Ybx42M0Qk2fYat5Liy3eg **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 Kes yang dirujuk: 1) INAS FAIQAH MOHD HELMI (A CHILD SUING THROUGH HER FATHER AND NEXT FRIEND; 2) MOHD HELMI ABDUL AZIZ) V. KERAJAAN MALAYSIA & ORS [2016] 2 CLJ 885; 3) DATUK MOHD ALI HJ ABDUL MAJID & ANOR V. PUBLIC BANK BHD [2014] 6 CLJ 269; 4) NGOOI KU SIONG & ANOR V. AIDIL ABDULLAH [1984] 1 CLJ REP 294; [1984] 1 MLRA 200; dan 5) CAPITAL INSURANCE BHD V. CHEONG HENG LOONG GOLDSMITHS (KL) SDN BHD [2005] 4 CLJ 1; [2005] 6 MLJ 593 S/N Ybx42M0Qk2fYat5Liy3eg **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

BA-44-102-08/2023

PEMOHON GOPINATH A/L ASURAWATHAN RESPONDEN Pendakwa Raya

The Issues in this application:a) First Issue: Non- compliance with the provisions of section 3(1) read together with the Preamble of the said Act and Article 149(1)(f) of the Federal Constitution – the arrest of the applicant was not premised on any belief that “the Applicant’s activities” involved a “threat to Public Order”;b) Second Issue: Non-compliance with the provisions of section 4(1) of the said Act when the applicant was wrongly informed and/or misled as to the purpose behind the recording of his statement under the said Act;c) Third Issue: Failure and/or refusal to provide the applicant with a copy of his own recorded statement taken under section 4 of the said Act; andd) Fourth Issue: Non-compliance with the requirements under section 3(2)(b) of the said Act.

23/11/2023

YA Datuk Aslam Bin Zainuddin

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=e1b27c88-b5b6-42be-a73a-95650e2e2f35&Inline=true

23/11/2023 13:05:20 BA-44-102-08/2023 Kand. 31 S/N iHyy4ba1vkKnOpVlDi4vNQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iHyy4ba1vkKnOpVlDi4vNQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iHyy4ba1vkKnOpVlDi4vNQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iHyy4ba1vkKnOpVlDi4vNQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iHyy4ba1vkKnOpVlDi4vNQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iHyy4ba1vkKnOpVlDi4vNQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iHyy4ba1vkKnOpVlDi4vNQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iHyy4ba1vkKnOpVlDi4vNQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iHyy4ba1vkKnOpVlDi4vNQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iHyy4ba1vkKnOpVlDi4vNQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iHyy4ba1vkKnOpVlDi4vNQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iHyy4ba1vkKnOpVlDi4vNQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iHyy4ba1vkKnOpVlDi4vNQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iHyy4ba1vkKnOpVlDi4vNQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iHyy4ba1vkKnOpVlDi4vNQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iHyy4ba1vkKnOpVlDi4vNQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iHyy4ba1vkKnOpVlDi4vNQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iHyy4ba1vkKnOpVlDi4vNQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iHyy4ba1vkKnOpVlDi4vNQ **Note : Serial number will be used to verify the originality of this document via eFILING portal a.\-u—1o2—oa/2023 Kand. 31 25/11/2023 13:c5-23 MALAVSIA IN THE HIGH COURT IN MALAYA AT SHAH ALAM CRIMINAL DIVISION case NO an-44-1 In-na/2:123 BETWEEN GOPINATH An ASURAWATHAN APPLICANT AND KEYUA nous NEGARA MALAYSIA MENTERI DALAM NEGERI MALAVSIA RESPONDENTS GROUNDS or nscusnou m "Mus m an applmahun «er 2: Mn 0! habeas cmpus by me apphcam agams( (he «esmcmn ovdev dated 21 Seplambar 2o2:_ made Dy me Deputy Home Mwmsler mar sermon 5(3) of me Dangerous Drugs‘ [Spec\z\ Prevenlwe Measuves) Act was (“me Acl’7 Var a penod of Mo yam Alter hearing me pames‘ \ dwsrmssed me appncauan var habeas corpus My masons are 25 loHows Prelumiuary ubivclion by tho respondens [2] The respondents tamed me fufluwmg obgecuan ‘ As 2| 21 9 2023 the Applmantwas ardered and served mm a Resmchon Order lar 3 perms no 2 yeavs wn aocurdance wrm seclmn 543) at me 1 IN MyyAb:wkKnDpV\D\AvNu W. sum runny WW ... U544 u. M, n.. nflmmfllv M H; mm. Vfl mun: NM‘ Dangerous Drugs 1Spec1a\ Plevenhve Measuve) Act was H1 Muklm Kemmpang, Daerah Hum sewangor. Selangnr Dirul Ehsan Thus, «he Applmznt mus| be barred lmm Iawsmg me wssue on the pmceaunss penzvmng m Ihe Reslnchon Omev wssued by «us Mmmer and the lws| pvayer m ms Notice cl Motion .5 to be struck am by ms honourable court since in Is \rrE\e4/ant Theve was no nenenmn Ovdev -sum by the Mumsteras a mailer omen but the Resmclmn Order" [3] I m asIms\y aware and au far! nuns mcem Federal camcsss ac Chung um g ng v Yimhalln Manx.» ggngn. ugfln a. Or: [ma] 4 Mu saswnere ms apex cam has deemed Inal even a an apnhcanl rs undev nssmcuun and not aexsnunn, hzbeas oalpus can sum be available In mm. Ergo me prelnmmary omscnon by me mpanaenxs Is msunneu Io mal exlant only (41 Hm luuu In anus application: 3) First Issue Nan cnluphanos mm the pnwlswons of sechon an) read Iogemm nnm me Preamme or me said An and Anvde 1491: my av ms Federal Can ’ won - the aunt ol (he applicant was not premised on any behal mac ‘me Appncnnrs aclwme5' mvowad a ‘KNEE! 10 Punk: omen b7 Secnnd mm Nowcumphanoe wnn me pnmsmns ac secncn Am (1! We saw Ac! men the appncanx was wrongly wnfurmed and/ov rmsled as to me purpnsa bemna me recmdmg of ms slalemenl under the sand Act :7 mm lrsua Falluve and/ur rufusal |o pwwde me applv:2n| wnh a copy ol ms own vecnvdad Ilflemem taken undev semen 4 of ms snm Ad‘ and sm Myy4b:wkKnDpV\D\AvND -ms s.nn ...n..n Mu s. wed In mm m. .,nn.nn mm mm. V1 gimme mn ‘Almuugh me preamble re a pan cl .3 s|a\uIe, n rs run an operalmg pin memo? The ma enrre pveamble can he |aken wily when there rs some duubl.abau|me meerrmg ourre opereme pan orme shims The preamme unaeumeaxymrewe hghl on me men: and design olme enemmg aumumy and Indicates me scope and puvpnse 09 me regelzurm new bul n show not be reea ee a pan av a penicmer seamen o1 me: wrruen raw Where Ihe enarftmg pan Is explxcrt and unembrgueus me preamme cannot be ves/called ha. |:: central. quahfy er resnrrm rt The enacling words cf the slams are not aways |o be Hmfled by me vmrds oflhe preamble and must rrr many mscarrees go beyond wt and where mey do so‘ «hey czmnm he cut dawn by reference to K n rs accummgly cleafly settled izw men me preamble eerrrren resmcl Ihe enzclmg par! ul a stalnla meugr. K may be veferred «e (or me pmposs uhulvmg an emu-my u 11 Erga based on me reeem case of 5alI\a| em vamm above‘ r« can be said was ahhnugh me preamme re a part are same, rc re not an opevahng pafl Iheleol n shamd nal be read as a pan er a pamcmzv secllun or lhal wrmerr law Where me enacnmg pan :5 exphcI| erru urremmguaus me pveamble cannot be vesuned us. to cnnlm, auahfy or resxrru K Themlme, (I-us rssue kicks any mam sscoun ISSUE‘ NDN-COMPLIANCE wnm ms PROVISIONS or secncm 4(1) or me sun AC!’ was» me APPLIEANY WAS wnomsu INFORMED ANDIUR MISLED A5 10 THE PURPOSE azumn ms azconnmc or HIS sursmsm UNDER THE SAID ACT [12]The reamed Federal couneex sand m her submissions as renews N MyyAb:wkKnDpV\D\AvNu rm. sum ...m.r wm e. we 14 Mr, me nngmnuly MW; mm. VI HVLING we * The myesngaung Olfioev ma rm| make an ermv concaming secuun am ol the Ad Ssmon 410) shouki be cnnsmem awongsxus subsedmn 4(4) M ma Act, as k7Hows' “Examrnattan ofgsrsons acquainted mm the rams and crrcumsfances 0/5559 4 (11 Fur ma purpose ufxatrslymg the Mrmstel ma: an order under subaeclron am snpu/a [Is Made and mime purpose ofsnabhng ms Mvmster m lurmslv a smemen: under paragrsglv 9(2;(b;, a palm: olficer making an myesugaupn undsrlms Ac! may examine are//y any person supposed to be aI:qua1nre\1 wnn ma Inns and mrcumslance: av ms case and shall name Into wmrng any slalament made by me person so examrnsd (2) sucn person snan pa bound Ia answer an questrans rs/atmg to such case punu mm by such officer 42; A psrsnn makmg a statement under W: sultan shsfl be /sgal/y uounu (0 slate me mun, whelhsromal such statement rs made wholly orpan/y m answer to ausslrons u) A pa/ice alficerexamrmng a person unoersupssenun m sh://Irrsf mfurm lharperwn u suusecuun (2; and (3) 45; A szaeemen: made uy any person urvdel subsecmm 11; shall bear N15 ms and lrms olmakmg Ihereufand sllaflbe argued by Ina pelsan making n or armed mm M: mumupnnr, as me am may be, afler :2 has been read ra mm m the ranguage m wmcn n was made and alter my has been given an upppnunny to make any com-sclrom he may msn (5; ma loregumg pmvrsmns owns seclvcn snan be wmvaut prqudlca to suasecnpn am; ~ 12 am wHyy4b:wkKnDpV\DxAvNu -mu. sum runny Mu »¢ us« no my me mamn, mm nnumsnl y. srwuus W.‘ % The language m sermon 44:) xx dear The Ponce lnveshgamg Officev doesn't need ta axpuam me purpose, exaepc as speamee m iecnon my . (2; Such persan man be buund to answer an quesnon: re/armg m such case pm in mm Dy such officer (3; A person mskmg a slarsmenl under this seclran snau be legally bound In slats me wen, whether m not such xfalvmunl rs made wholly orpamy m answer to uueszmns The eucwe Ieqwemanl of me new was vmavy scacee m pavagraph 9 01 Vnspedor Muhammad Aznn hm Vazld [Evvcl 5]‘ [:3] ln me Federal com case 0! LEE xsw SANG v. IIMBALAN MENTERI DALAM NEGERI MALAV5|A .5 ORS[2005] 3 cu 914 . xzonsl MLJU 551 me Fzdem caun new ‘\n am View‘ cams muu give effect to me amendment: That being me law. n I: me my oi me cmms m apply mam So, m ahabeas corpus appllcatmn where me aenennan area 0! me Mmlslev made under a my mus onnnanee an tmma: manen me equrvalem ss m VSA 1560 and DD(sPM)Az|19a5,me msmnng um me courts snamd do is m sea whelher me gvauvvd lorwardad Is one that vans wmnn me meaning of prooefluval naneampuance or um Ta determme me question‘ ms courts snamu luck at me pmwsmns oi me waw av ma mes that lay down me procedural veqwemems n vs no! Var ma cams lo aeaxe procedural raqmrements because u \s not me mncnon M me cmms m make waw or rules Wither: vs no sucn procedure! reqwemem men lhe(e cannot be non- camphanos mereuv Omy n mere is man mar: can be non-compliance merear and only men met me courts shamd eansuer whemev, on ma lac1s,Ihere ha: been non-cumpHance' 1; sw MyyAb:wkKnDpV\DxAvNu -we sum ...n.., wm be wed In my me nngmnuly em. nnumgul V1 muns pm]! [14] \ agree wv|h me respondents man here was no breach 0! any procedure m seamen 4 M me Ad THIRD Issu » FAILURE ANDICIR REFUSAL YO PROVIDE Tu: APPLICANT mm A cow or ms own RECORDED STAYEMENY YAKEN UNDER secnon A or THE sun An [151 The veamea Fedem Counsel suhrmlled as Inflows ‘The mere afleganon made by me Applncnrn .5 m pzvagraphs <5 and 15 nlAlfidavn m Suppon am, we Raspenderu vemy we Amuayn m Reply av ms? POLIS MUHAMMAD AZRIN am VAZID ax paragraph 21 [End 11]‘ ' 21 trade permamznan drfenma darlpada prhak Pemahon aamazau wskrlnya unluk drperllmbangkan The Appumx mam dlsuule the Respandems‘ claxm or not vecewmg an applvcalmn cm a copy ea [he recorded s|a|emen( As a result, (he Respondents‘ slalamem ws |aken as lme. ms Is suppuned by me case alsavavznan Ramachandvan y Chmrman cl me Crime Plevennon Beam |2n2o}1LNsu9s{ma51- ‘ as the expuanauon scam Imve!u|ed by Ihe uenamee, n \s deamafl accepted purmm (0 me Me ma| wheve a case \s m be deemed an a mmesl of amdawls, Vike ma present, me Me Is clear‘ max malena\ allegahons war. are nu| ocncmmcled ave deemed In be admmed‘ N \Hyy4b:wkKnDpV\D\AvNu W. sum ...u.., MU .. U544 In vemy ... nugmnuly MW; mm. VI gimme W.‘ % There .s nurEuu1reman(L7rDvm:eduIe1n Secnon 4 as me M101 any Other prawslun1r1lheAcHhaImandaIes pruv1dmg ma vemrded s(a|emer1( «a me Apphcanl I1‘; me ApplM:an|‘s respons1bIh\y xa Venues! may vecurded sralemenl under Sermon 4 .21 me A:l‘ar1d|h3re‘s no evvdence |0 wgges. 1r.au..c>. a vequeslwas made and demed ms argument .5 suppamed by me case M Lee Kew Sang (supra) on page 930 “ [1s11nma case av Kong Kvau Hack v Yimgyy. mm. Koaulamatzn Dnlam Nouorl uamma and um... aggeall [2007] 5 MLJ 611‘ [2007] 5 AMR 4n1,[2nu7]5 cm 171 me facts were -1.. an these low appaa1 cases we 1..... appeHanls appealed agamsx me declsmn of the 1ea...ea ..m.c.a1ca....v1.ss.....er 0! ma mgr. cm... at Jana! Bahm in drsmlssmg 1r.e.. respective apphcahan 1a. a declaration man we leslrlnuan order Issued agamsl (hem by me Depuly Mm1s|evoHnlerr1aI Secunly meputy m1ms(er') under s 2121 aims Reslncted Residence Au 19a:1(Re...saa1sss)m.a Am‘) was um! and mm and ulna effect The appeuanx, Keng men Hock was arreslsd an s Deoemberzflflfi 1.. Ba|u Pahzt a| am... 1 sum under 2. warrant .=1a..es1 and detarmon 1ssued by the dapuly mmlsler undev 5 2(1) at me Au and brought 1.: Ealu Paha| mane. Palms Headuuanm Therealtev on me same day an Bum me appeHan( was taken In Kmang Pnson, Jnhor and detamed lheveln ....1.1ao Decamhev 2005 On an Decembev zoos me aepmy m....s.a. 1ssued z ve5|r1I:11un ardar undev 5 2(2) .21 lhe Acl vesmcllng me appellant m Mukvn Kuhm‘ Daerah Kulvm. Kedah fvv mree years curnmen g an December 2905 and placmg me appellant under pohce snperwsvon 1o. me sam penod .5 sw 1HyyAKs:wkKnDpV1D1AvND -w... s:H|Hu:v1h:1wH1b¢ .9... .9 M. m. ........... MW; ......... VI .r.....s wvm on me lhlld Vssue wnlen was wnelner me umcer~lrl—:harge ol |he Kluang Prlsarl, Jarlol had eomplled wlln n 3(2)o1me ALI and n panlculal wnelner werrnnl ol release as rn Fonn D M lne seneoule to lne Acl had been lssuea. lne appellenl oonlenoee lnal me responaenls lalled lo prove lnal lnere had heerl a cumpllsnoe wlln lne lequlremerll ols alzl of {he Ac1 ' ml ln dlsmlsslng lne appeal and aeoordlngly olsnnsslng lne olher lnree appeal cases wlln no oraer as la male, lne courl L71AppeaI apeaxlng lnreuon zulxelll Maklnudlrl JCA (as ne men was) oolneo Hm] Learned counsel lor lne aepellanl also alguefl lnanne respondents called ln men aflldzvn rn reply lo annex or In exnloll lne relevant walranl or release as rn Form D ollne seneoule |o lne Acl leeuea by me olnoer Ill cnerge el pmun lo lne sscomrlg olneer and lnls would tarnamnurl! lo fzllurs lo comply wlth lne Iequ‘lreman| ol lne eloresalo pvcvlslon ll ls lne eonlenllon ol me appellanl lnal mere avenuanl wllnolll pmduclng lne leleuanl warranl ol release IS lnsllmclenl lo dlscharge lne burden on me pan or lne respondent lo show cnmpllance mm 5 312) ol lne Act wlln reeoeol, on «ma pornl we do nol agree wlln lne apoellanrs conlenllon. ln lne pvssenl use me responuenl lhlough lne relevant olficers nao rnaoe soecllle avermerll In men lflldavlls regardlrlg lne ISSUEVIDE onne werrenl ol Release Fmm n by glvlrlg a aelalleo 30c0ulI| onne prooess al release lrorn lne pnson and lne harldlng aver onne aooellanl In lne oolroe we lllrlner llnd llre appeHan| ln lecl an no: onallenge or dlsuule lne specfll: avermenl made on benall ollne reapondenls on me Issue ralseo by Nmg reoullal alnoarnl evroenae Fallure to do so amounls Iv cnncesslml on me pan 0! me aooellanl (see me case omg Has moang s Arlorv mule Bank Bhd lgss 1 Ml zal) we would lnerelore also dlsmlss lne arglnnenl el learnea oounsel lor lne appellanl Ill respecl of lne lnlm lssue " IE srn lHyy4b:wkKnDpV\Dl4vND -was s.n.r nuvlhzl wm be U544 rs Mr, r... nllglruuly «we nnuuvlgnl VI :F\LING pan! % [1E]Agam, x Vauud no nnn<:umDham:e mm any procedum reqlmemenls of me Am mm regard in «ms wssue [19] m me name! me appncanon lor habezs oorpui vans Almaugh me apphcanl med m ms application fur Iwabaas corpus, me appuoam, M a( wean pamaps counsel reprsaenlmg hvm‘ can, I mm, take solace and ssusrecniun in ms lac| max he has not been demm access to the machinery ov mane and m pamcmar M: m vemady av habass corpus m have me mams 0! ms case my venmaoea m a mun al law 1201 The «mm wssua has been abanduned by the apphcan| and alga \ mu not much an n [21] man quaesho Dated 23 Novembsr zuzz mm. b him Jung. mun Conn in Malay: Shnh Alam Salanyur 21 sw MyyAb:wkKnDpV\D\AvNu -W. sum ...u.., M“ .. wed In mm m. .m.u.y mm mm. V1 mums W.‘ Applicant En zavmn zam bin Mohd Zaim Peguambelz dan Peguamcava Temzn Zam a. Fnrlnels Cybenaya man my Syaflqah m Mom vusov nmnaxsn Pendakwaraya Pe]aba|PenasII1atUndang—Undang Kemenlenan Damm Negen Blnk m, n2 A 09, Kamweks D, Puszt Penladb\ran‘Kern;aan Persekuman‘ 62545 Puvimya 1 \ l l Rnspondnnl u sm MyyAb:wkKnDpV\DxAvNu -W. sum rumba! MU ... M In M, m. .mw., MW: mm. VI mung W.‘ R0 mum. cans reflcnad lo: 1 Peter cnang Nyuk Ming V Tlmhalan Memsn Dawn Megan 5 ms [2n2a14 ML! ass 2 Chua man vmm V Mame" Dalam Nagen Ma\aysva a. 015 [mo] 1 ML] 35<.[zu2o] 1 cu 747 3 Samal hm vamm v Public Fvasecmav [ma] 4 ML! ma 4 Lee Kew Sang V TImDa\an Menlan Dalam Megan Malaysia 3 Or: {ms} 3 cu 914420051 MLJU 667 5 Keng Ksen Hack u Tlmbman Menten Keselamalan uavam Negev: Malaysva and my appeals [2907] 5 MLJ s11_[2on7| 5 AMR Ana [mm 5 cu m 19 m M1Iy4b:wkKnDpV\DxAvND W. sum runny Mu .. wed In mm m. mV§\nIH|Y MW; nnumenl VI muus puvm .1) Fourth Issue Norvcompllavlce wllh ma reqnlremerlh under sermon alzxu) onna sald Am the Law [51Amele 5 al me Fedsral consmullan prallldes — "FUNDAMENYAL LIBERYIES Llbnrly al ms person 5 (1) Nu parscrl shall be usprwad al lns Ms nr personal llbeny save ln accordance wan law (2) where curnplalnl IS made to a man Caufl an ally ludge lnarsol max 3 parson ls helng nnlawlnlly detalrled ms cowl shall lnqulrs mm In: wmplallu and‘ unless satisfied lnallna aenennon ls lawfuk snall nrdar mm |l: be pmflucsd nslnre me own and release mm la; wnsra a pariclrl I! arrested he shall be rnlonnea as saan as may be M me gruunds cl hls avresl and wall has allawed |o curlslm and be uslenaaa by n legal prarmlwnel M lns clloma (A; were a parwrl KS alms|ed and um ralsaseu he snall wlmolfl urllezsnrlable delay, and n any case wllhm Iwerlly-{cur hows (excludlng ma llme cl any necessary rnurney) he produced belore a rnaglslrala and shall nn| be lnnner nslalnea Ill euslmy wrmanl me rnaglslralas aulhorlly Fluwded that mls clause shall nal apply lo the arrest or delerlllorl olany pelson under me exlswlg law ralallng lo resumed rssrasncsr and all ma pruvlslans cl |his Clause snall be deemed la have been an lnlegml pan uflhls Arnsls as lrem Memekz Dzy SIN lHyy4b:wkKnDpVlDlAvNu -ml. ssnn ...n..r an s. wed In my Me .nnn.nn wnls nnunvlgnl V1 mulls ann Pruvlded Yuflner ma * whn IS alres|ed or datalned under me law relallng lo ininlrgranpn. |hls Clause shall be read as ll mere wele subsllluled lpr me wards 'wlmoul IN appllcauan in a person‘ olner man a cillzen. unreasonable delay, and W any can wlllnn lwenly.lpur hauls iexaluaing lne llnre ai any necessary loulney)” me words will. louneen days“ And prm/lded lurlner lnal in me case pl an arresl (or en plaence wnlcn ls lrraple by 3 Syavlall mun, rslerencea W |hIS Clause In a maglslraee shall he wnsuued as including reierences la a yuiige oi a syanan calm. (5)CIauses13)alld(A)da rlpl apply lp an enemy alien‘ [5] Amcle 149 olme Federal opnslllullpn states Arflclc us Fudlnl Curlllmnloll: " Lagislallon apalnal suhversinn. action prejudicial In public order, ale. us (1) ll an Act pl Parllarnenl leclles inal zclicn nas been lam or threatened by any subslallhal body of persuns. wnalner lnslde or aulslde ina Fedelallnn— (a) la uuse‘ aria causu a subshsrltlal Immbeynicmlens lp lear mganlxsd vlalence agalrlfl persons ol pmpeny‘ or in) |o EXcI|B aisellecllan againsl me Yang an-Penuarl Agorlg av any Guvarrlmerlt lrl lne Fedelaflan. ar (c) In pmmota fuehngs 0| ll!-will nrld npsllllly between alllerenl races or ainer classes ol lne pepulanpn llkery |o cause vlolenee. or my |D procure lne alcaralrpn, plneiwrse man by launul means‘ of arlylmng by Llw eelapllsnea, or SIN lHyyAb:wkKnDpV\DlAvND -ml. s.rr.r ...n..r an .. wed In my me nllglrwlllly MW; anunvlgnl V1 mus pom! (e)wmch1s pna.ua.aax «a me mamlenance 0! ma luncllunlng no any supply or same «a me puhhc or any class aune pubhr: In ma Fsdevahan av any pan meveav. m m wman ws pyanmaal to public order .n, or Ihe secunly oi, the Federahon av any pan (hereon any pmwsten of man an aengnea In start an pveven(d1a|Ic|\on wt valvd nalwnhslandmg nnan m xs mwnsmen| wI|h any ol me pmwslans awnaua 5, 9, 1:: W 1:, av wumd apan ham (ms Amde he nulsnde ma Iagauauua paws! 01 svamamenz, and Amde 79 5hzH nal app\y la a am 901 sucn an Am or any amendmenua such a am. (2) A law containing sue» a ramax as \s mermaned m C\ause [1)shz\L n nox scone: repemed‘ cease m naya enact a rusalullmu are pama by both Houses at Parliament annumng such Vaw. um wwmoul prejudice m anymmg previously dune by ymua lhevenf m \a me Duwer of Pamamam no make a new waw underlms Amde ‘ Aruchz 151 Fudtrll Connmninn: “Rollricflom an prevlnliva amnuan 15¢ 11) When: any law or ommance made or prommgaled wn pursuance cl lms Pan pmymaa Var prevemwe de(enuon— (3) the nmhorw on whose mdar any person xs denamed under mac Vaw or ordinance snau as am as may ua, warm mm oi the grounds fbv ms dslermon anu, sumac: In Ctause (3., me aflegalmns av (act on Much me me: is based, and sham give him ma oppomnuly M makmg vepresemzfiuns agamn the order as soon as may be: any ynyy4aamxna..yyaa.na -an. sum rumba! wm u. wed a navy me nngmuly mm nnumgnl vn mung Wu no) no cmzen shall continue |o be denanned may nnan law or ordnnance unness an advnsnry board consumed as menlnoned In cnaoae (2) has consndemd any represen|alu>ns made oy mm nmdev pavagvaph (a) and made recommernflalnans Ihereun no me Vang dn—Par\uan Agung wnnhnn mree months on recewlng such reoreaencannona or wnlhnn such langer pennd as me Vang dn—Penuan Aaong may annoo (2) An aoynaony board cmns|mAed nor on. purpnsas on nna Amcle anann consnsl al a enannnan wno anan oa appomnao by me Yang dn-Perluan Agong and mm shall be or have been, or be quzlnfied In be‘ a nudge nnnna Fedaran coon, nne Cum! on Appean or a High coon, ur shall before Manayana nay naye been a nudge on me Supreme com, ano Mn olher members whu snann be apponmed by nne Vang flI—PerInAan Agang (3) TN: Amcle dues non requnre any aunnonny no onaenose «ans wnose dnsclusnne would nn 1!: opnmon he agannsn nne nannonan in|e|e5\' m We Dangerous Drugs nspeonan Pravenlwe Measures) Act 1555 prmlndes Prumhln of Act :15 am. ' wn-nsnspns achun wmen nu prenuflncnan no puhhc order m Menayana has been nakan ano lunher snmnlar achon is hemg nhreanened by a aobenannnan bady on persons oonn nnsnne and unnsnde Manaysna, AND wnsnsas Parlnamanl cornsndevs nn neoessany no slap suen zclinny NOW THEREFORE‘ pursuant no Amcne us on nne Consmnmcn an; n7 ENACTED by me Duln Vang Mahz Mulna sen Paduka Bagnnda Yang up penoan Agmng wn|h nna aowca and consent on me Dewan Negara and s an nHyy4xs:wkKnDpvnDnAyNu -we sum lhlhhfl wm e. wed In my me .non.ny mm am"... y. ernuns mn Dewan Rakyal m Parnamem assernmeu. and by the zmmonly enrre same‘ as «allows “ "Powerm older at man and rasmeuun of porlons s mwneneyerme Mlnlsler zVlaro0ns\denng— (5) me oamp|e|e repan L7! Inveshgsuon subrmlled under subsechon 313), and (5) me veparl :71 me memry Omcer submmad under suhsechan am, Is sausfied wnh respect la any Demon mat such person has been or rs asseemea mm any aenyny relanng up or mvowlng me lralfickmg In dangerous amgs, me Munster may, w na a sanenaa «nan :4 «a necessary In me wntevesl e1 pubhc order that such person be detained. by order (heremaller recenea |u as a 'de|enlron amen dIrec| lhal such person be deuswned lav a perlnd n01 exmemng Mu years 12) . (3)\Hhe Mtmstev ws eausrred max for me pmpuse rnenneneu m subsection m n \s necessary lhatcunlral and supevviman shumd be exevmssd eyer any pevson or thal reamcuons and condmons sham be posed upon max person In ve5pec| or we aexrymes, Ireeearn ul nreyamenn or Manes a1 resmenee or ernpxaymanc, pm In! max purpose n Is unneoessary m detam mm‘ ne may make an order qneremaner revenea Io as a ‘reslvtchun amen) wmpasmg upon |h.a|pevsan (nerernener velerred m as a‘1esmc\ed person‘) all or any more fuiluwmg veslvmlnns and mnampns (a)|hz\ he snau be sumeen |c me superwsmn ol me pohce lav any period nm exeeemng lwu years (b)(ha( ne snau resrae mflvn me um: L7! any Sla|a pr any Federa\ Temlmy or any area nnereer specmed m me rasnncuen men an MyyAb:wkKnUpv\DxAvNu -was sum runner wm e. wed in my me nHg\n|HIy comm nnumenl y. mung pom! (::)mal he shau um nmnsoer ms resxience la any omer area mmaan ma w-man aumamy Mme one: Pohcs omaa: anne Stale arFederz\ Temhzry concerned (dnhal excapl m so lav as may be otherwise prowdsd by me Ieslrlcnun amar. he shafl not neaye me area wmww which he reswdes wMhuu| me written aumomy uhhe cmer Puhce Owner at me Slate ov Fedeval Tamlory cuncemed, (ebmal ha anau a| an mes keep ma Oifioer in Charge olme Panae D\sIvic| m which he resides named oilhe house or place m which he residesy (mac he shall at such was or umes as may be specmeu m ma rusmchon alder present mmsexr an me neavest pnlvoe s|a|IurI. (g)lhatI1e anau remam wumn dams. orwmnm such area as maybedehned m Ihe -esmman order. between such hours as may be svemfiad m me vesmcuun order, unless he omams special pemusswcn to me canxra-y from me Otficar m Charge acme Pnlxoe Dmm (h)|ha(excep1 m sa lar as may he omemse pmwded by lhe .aamc1.on arder. he snau am en|sr any area spemfisd m we reslncucn ovder; mmax he snau keep me peace and he av good behavxor; (nmax he snau enlev mm a mm with or wwmoul smenes as ma Mmvaler may direct am. 1!: such amoam, as may he speamau nu ma realnclmn order, (av was due eompnanee mm ma .as|m.am and commons Imposed an mm by me reslnchnn mdev ' [5] me waw on habeas corpus was succwncfly surnmarried m the Fedem Oourl use mg; a man Vaon y Manlnri nauam Nag-n Malaysia 5. gauze] 1 MLJ 351 y 1202a] 1 cu 747 and to avavd Iaulelagy. veeapmnaman av pansaoxogy, I shaH not Ies|ale n here any MyyAb:wkKnDpV\DxAvNu -was sum lhlhhfl Mu a. wed in my me augmuly «we nnunvmnl vn amya W.‘ [9] arm Fnch ar chm-oroyy H; ' ’ ’ mm in App|rEarWwas arres(ed at? a Of Ieclron 3(1) aims Dangerous Drugs (Special Prwanlwe Measures) Am 1935 e(arn 1h for up My as hams «mm me me or arrest was granted by lnspechzr Pans Muhammad Aznn hm Yand m accurdance Vwllh |ha requirement of sechcrl 312)(b)01|rIu sard Ad mm Al 5::-Tm aumonly Io hour! and up la 14 days, was grzrfled by ASP Amzam hm Hussln m anomdzmze mm me requrremants or sedmn 3(2;(n) or me sand Act Iumnza For me purpusa of as'Iamm§‘x‘ne Appuéam beyond me 14 \ day: parrofl‘ us? 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Tika 2.6.0 & Pytesseract-0.3.10

W-01(NCvC)(W)-429-06/2022

PERAYU 1. ) LEMBAGA TABUNG HAJI 2. ) PREMIA CARDS SDN BHD RESPONDEN ENCAP SDN BHD

Unlawful unilateral termination of an agreement and assessment of damages for expectation loss or profit loss.

23/11/2023

YA Datuk Azimah binti OmarKorumYA Datuk Hanipah Binti FarikullahYA Datuk Azimah binti OmarYA Datuk Azhahari Kamal bin Ramli

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=672d64d2-46a7-4409-849c-bac3a9533564&Inline=true

1 DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO.: W-01(NCvC)(W)-429-06/2022 ANTARA 1. LEMBAGA TABUNG HAJI 2. PREMIA CARDS SDN BHD (NO. SYARIKAT: 1243739-T) ... PERAYU-PERAYU DAN ENCAP SDN BHD (NO. SYARIKAT: 822849-X) ... RESPONDEN (Dalam Perkara Mengenai Guaman No.: WA-22NCvC-78-02/2020 Dalam Mahkamah Tinggi Malaya di Kuala Lumpur Antara Encap Sdn Bhd (No. Syarikat: 822849-X) ... Plaintif Dan 1. Lembaga Tabung Haji 2. Premia Cards Sdn Bhd (No. Syarikat: 1243739-T) ... Defendan-Defendan) 23/11/2023 16:16:41 W-01(NCvC)(W)-429-06/2022 Kand. 95 S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 CORUM HANIPAH BINTI FARIKULLAH, JCA AZIMAH BINTI OMAR, JCA AZHAHARI KAMAL BIN RAMLI, JCA JUDGMENT OF THE COURT A. INTRODUCTION [1] The Appeal before us is an appeal against the Learned High Court Judge’s (“Learned Judge”) decision to allow the Respondent-Plaintiff’s claim against the Appellants-Defendants for unlawful termination and breach of a Service Provider Agreement dated 8.8.2014. [2] The parties in the Appeal are namely; Lembaga Tabung Haji (“the 1st Appellant / LTH”), Premia Cards Sdn Bhd (“the 2nd Appellant / Premia”) and Encap Sdn Bhd (“the Respondent / Encap”). B. BACKGROUND FACTS [3] For a better understanding of the matter at hand, it is necessary to set out the facts of the case that has led to the present appeal before us. LTH (“the 1st Appellant / the 1st Defendant”) and Encap (“the Respondent / the Plaintiff”) had entered into a Service Provider Agreement (“SPA”) dated 8.8.2014 in which LTH had appointed Encap to supply to LTH a Cash Management System (“CMS”) in the form of ATM Cards System to replace LTH’s archaic physical counters cash withdrawal system for the convenience of LTH’s pilgrims (“Debit Card SPA”). S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 [4] The Debit Card SPA was entered into, following a series of correspondences since 2011 which culminated LTH’s appointment of the Respondent. [5] Over the period from 2011 until the signing of the Debit Card SPA, LTH had constantly shifted its demands and features that LTH required to be developed and delivered by the Respondent. The initial form of CMS LTH intended under the “Kad TH Project” was the ATM Card. Subsequently, LTH requested that the feature and concept of the ATM Card to be a Debit Card which was able to be linked to the Malaysian Electronic Payment System (“MEPS”) which expands the usability of the Debit Card even across other local Malaysian Banks and ATMs. Upon the proposal by the Respondent, LTH issued a Letter of Acceptance on 1.11.2013 agreeing to the Respondent’s proposal. (“MEPS LOA”). [6] Circa 2014, the LTH yet again shifted the goalpost and instructed the Respondent to develop the Debit Card CMS to be able to be linked to MasterCard (instead of MEPS). Thus, the Debit Card SPA was entered into in view of a CMS utilising a Debit Card with connectivity and link to MasterCard (“Debit MasterCard”) [7] Since a license from Bank Negara Malaysia (“BNM”) was required to be able to implement the Debit MasterCard CMS, LTH incorporated its wholly-owned subsidiary, Premia (“the 2nd Appellant / the 2nd Defendant”) solely for the purpose of holding the license which the 1st Appellant seeks to obtain from BNM. Subsequent to Premia’s incorporation, Premia applied to BNM for the necessary license to issue Debit MasterCards on 21.6.2016 (“Premia’s 1st Application”) S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 [8] Circa 2018, BNM rejected Premia’s 1st Application. Instead, BNM suggested that the concept of the Debit MasterCard to be changed to Prepaid Cards (“Prepaid Cards”) which would have a higher likelihood to be approved by BNM. [9] In adherence to BNM’s suggestion, LTH and Premia continued dealings and relations with the Respondent and collectively pursued the implementation of a Prepaid Cards CMS (despite the original concept of Debit MasterCards under the Debit Card SPA). Those continued works and relations inter alia include: a. After BNM’s rejection, LTH via an email dated 18.1.2018 had instructed the Respondent to now pursue and develop a Prepaid Card CMS instead of the initial Debit MasterCard CMS; b. In acquiescence to the continued contractual relations in pursuit of the Prepaid Card CMS (with the Respondent as the CMS Provider), Premia applied to BNM for the 2nd time, now for the license to issue out Prepaid Cards (“Premia’s 2nd Application”) on 12.2.2018; c. In view of the collective effort and endeavour of the parties (with the Respondent still as the CMS Provider), BNM accordingly on 13.3.2018, granted the requisite license to Premia to issue out TH Prepaid Cards; d. Throughout the same material time of these continued works, a new Draft for a 2nd Agreement for Prepaid Cards CMS (“Draft Prepaid Card SPA”) were already in negotiation between the Parties. The terms of the Draft Prepaid Card SPA (save for the actual execution of S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 the Draft by LTH’s top brass) were already agreed upon by the parties on 6.6.2018; e. On 7.6.2018, upon Premia’s registration, MasterCard had confirmed Premia’s registration of the Respondent as the CMS Provider of Premia; f. On 8.6.2018, LTH had informed the Respondent that Premia had already registered the Respondent as Premia’s CMS Provider; and g. Circa September 2018, the Respondent had successfully delivered the Prepaid Card CMS to LTH. MasterCard’s own Country Manager, Perry Ong, confirmed during trial that the system successfully went Live. [10] Despite these clear continued works beyond the scope of the original Debit Card SPA (and in acquiescence and admission to the variations as per the Draft Prepaid Card SPA), via a Letter of Termination dated 30.11.2018, LTH had terminated the Respondent’s appointment on the basis that LTH was not able to obtain the requisite BNM License for the issuance of Debit Cards under the original terms of the Debit Card SPA. [11] At this juncture, after diligently having pursued LTH’s many variations and instructions, the Respondent had already expended approximately RM12,000,000.00 (reliance loss) in performing its obligations under the Debit Card SPA and even the 2nd Draft Prepaid Card SPA. On the other hand, the admitted lowest range fees which are projected to be payable to the Respondent if the Project was properly performed (expectation loss) was RM42,287,500.00 (as per LTH’s/Premia’s own projections submitted to BNM in Premia’s 2nd Application). S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 C. BEFORE THE HIGH COURT [12] LTH’s sudden termination had left the Respondent with no other option but to commence a suit against both LTH and Premia before the High Court Kuala Lumpur. Upon a Full Trial, the Learned Judge had allowed the Respondent’s claim inter alia on the following core grounds: a. The Learned Judge had allowed the Plaintiff’s claim but on a totally UNPLEADED and UNSUBMITTED ground of section 71 of the Contracts Act 1950 to abandon all of the Written Agreements ever negotiated and agreed upon, and just decide on the basis of a ‘quasi- contract’ based on parties’ correspondences; b. The Learned Judge did not embark on meaningful deliberation on the parties’ arguments on the applicability of the contract and the various ‘variations’ along the course of the relationship; c. The Learned Judge did not deliberate on the applicability of the ‘proposed agreement’ that was agreed upon BUT NOT YET EXECUTED (that was proposed subsequent to BNM’s refusal to grant the license to issue Debit Cards); and d. For quantum, the Learned Judge awarded RM42,287.500 (as per LTH’s/Premia’s own projections submitted to BNM in Premia’s 2nd Application). [13] Dissatisfied with the Learned Judge’s decision, LTH and Premia filed the present Appeal before us. S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 D. THE APPEAL BEFORE US [14] We must mention here that when the appeal was called for hearing on 11.8.2023, before proceeding to hear the full oral submissions from the counsels for the Appellants and the Respondent with regard to the Appellants’ appeal, we had indicated to the parties that we have read the cause papers, the written submissions filed by the parties as well as the Learned Judge’s grounds of judgment. Thus, we had asked both the counsels for the Appellants and the Respondent to clarify and address us on two preliminary issues which could save considerable judicial time if these issues can be determined by the parties from the outset. We then posed the following questions: (i) What is the stand of the Appellants and the Respondent in respect of existence of contract between the Appellants and the Respondent? (ii) If the Appellants / Respondent stood on the position that there was a contract entered into between the parties, then the next question is, was it appropriate for the Learned Judge to ignore the parties’ pleadings and submission and rely on section 71 of the Contracts Act 1950 (‘the Act”) on his own accord whereas section of 71 of the Act (award of quantum meruit) would only be applicable if there was no contract entered between the disputing parties. [15] We had posed the above questions on the following reasons: It was admitted by both the Appellants and Respondent that neither parties ever pleaded nor even submitted on section 71 of the Contracts Act 1950. Upon examination of all the cause papers and the submissions filed by the S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 both counsels for the Appellants and the Respondent, it is our preliminary view that the parties’ relationship in the present appeal had been codified into a written contract. Therefore, the Court cannot simply abandon the contracts (or its variations if any) and just resort to section 71 of the Contracts Act 1950. This is especially so considering the original Debit Card SPA had already anticipated and provided for variations through parties’ correspondence vide Clause 23.7 of the Debit Card SPA. [16] It is also our preliminary view that in the present case, there were numerous contracts (and variations). But there was a dispute as to the final terms of the contract (due to the many variations, and issues as to execution). But the bottom line is that there was a contract. Thus, section 71 of the Contracts Act 1950 cannot apply to take precedence over the written contract. Section 71 of the Contracts Act 1950 is only relevant as a statutory remedy (and assessment) to claim for work done to avoid any party unjustly enjoying gratuitous performance of an act to the peril and expense of another. [17] The nature and spirit of section 71 of the Contracts Act 1950 had eloquently been explained by the Court of Appeal in the case of Tanjung Teras Sdn Bhd v Kerajaan Malaysia [2015] MLJU 2161: “Juristic basis behind section 71 [34] Section 71 is the statutory embodiment of the common law principle of quantum meruit, which provides for a just compensation as the measure of the work done as opposed to contractual damages (see: Seow Yong Fatt, Craven-Ellis v Cannons Ltd [1936] 2 KB 403, Delpuri-Harl Corp JV Sdn Bhd v Perbadanan Kemajuan Negeri S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 Selangor [2014] 1 LNS 1075; Spatial Ventures Sdn Bhd v Twintech Holdings Sdn Bhd [2014] 8 MLJ 14). [35] Liability under section 71 is not based on any existing contract between the parties. Rather it is based on the equitable principle of conscionable conduct and restitution to prevent unjust enrichment by one party at the expense of another party (see: Craven-Ellis v Cannons Ltd Ramkrishna Shankarrao Vs. Rangoobai and anr AIR 1959 Bom 519; (1958) 60 BOMLR 459, Abu Mohammed Vs. Mohammed Kunju Lebba (1995) DMC 316 and Pallonjee Eduljee and Sons Vs. the Lonavala City Municipality AIR 1937 Bom 417; (1937) 39 BOMLR 835).” (Emphasis added.) [18] In addition, we would also add that subsequent conducts may infer variation, acquiescence, or modification but it does not allow the Court or the parties to abandon the contract altogether. It remains incumbent upon the Learned Judge to determine the final and appropriate terms under the contract based on the facts of the case and not to simply abandon all ties to the contracts the parties have negotiated and agreed upon. [19] The law is trite that parties ought to be bound by their pleadings and since both parties have admitted to not have pleaded or even submitted facts or a case under section 71 of the Contracts Act 1950, none of the parties or even the Court should be allowed to rely on this unpleaded contention. [20] We must also mention here that having heard the submissions from both the counsels for the Appellants and the Respondent on the preliminary issues (i.e. the existence of a contract between parties and the application of section 71 of the Act by the Learned High Court Judge) we certainly appreciate that both the parties had agreed that they will not pursue these S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 two issues. That being the case, it is our considered view that the propriety of the Appeal before us can be determined by addressing the following issues: ISSUE 1: WHETHER THE TERMINATION OF THE DEBIT CARD SPA DATED 8.8.2014 BY THE 1st APPELLANT VIA LETTER DATED 30.11.2018 WAS VALID AND LAWFUL. ISSUE 2: WAS IT APPROPRIATE FOR THE RESPONDENT TO PRESUME THAT THE APPELLANTS HAVE AGREED WITH THE PROPOSED DRAFT (VARIATION TO THE SIGNED DEBIT CARD SPA DATED 8.8.2014). . ISSUE 3: WAS IT APPROPRIATE FOR THE LEARNED JUDGE TO ALLOW THE RESPONDENT’S CLAIM FOR EXPECTATION LOSS / PROFIT LOSS BASED ON THE APPELLANT’S PROJECTION SUBMITTED TO BNM? E. ISSUE 1 AND ISSUE 2 ARE INTERTWINED WITH EACH OTHER. THEREFORE, BOTH ISSUES WILL BE DEALT TOGETHER. ISSUE 1:. WHETHER THE TERMINATION OF THE DEBIT CARD SPA DATED 8.8.2014 BY THE 1st APPELLANT VIA LETTER DATED 30.11.2018 WAS VALID AND LAWFUL. ISSUE 2: WAS IT APPROPRIATE FOR THE RESPONDENT TO PRESUME THAT THE APPELLANTS HAVE AGREED WITH THE PROPOSED DRAFT (VARIATION TO THE SIGNED DEBIT CARD SPA)? S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 [21] Upon thorough examination and analysis of all evidence (oral and documentary) and the submissions of parties, we find that the Learned Judge (although embarking on the wrong tangent) was still correct in allowing the Plaintiff-Respondent’s claim. [22] The dissonance in the Appellants’ and Respondent’s case is verily simple. The Appellants claimed that since there was no execution of any other contract other than the Debit Card SPA, the parties’ terms and obligations shall be kept within the parameters of the Debit Card SPA. It was on this footing that LTH argued that it was right for it to terminate the Debit Card SPA (as LTH had failed to obtain the requisite BNM License to issue out the Debit MasterCards). [23] It was argued by the Appellants that the termination of the Debit Card SPA by the 1st Appellant (LTH) vide a Termination Letter dated 30.11.2018 was a valid and lawful exercise by the 1st Appellant pursuant to Clause 17.2 of the SPA. According to the counsel for the Appellant, Clause 17.2 of the SPA clearly provides that when the requisite licence for issuance of the debit cards for the Kad TH Project is not obtained from BNM, the 1st Appellant was at liberty to terminate the Debit Card SPA. It was argued further that Clause 17.2 had made it clear that the 1st Appellant may terminate the SPA at any time by providing thirty days’ prior notice (which the 1st Appellant had done so via its letter dated 30.11.2018. [24] In this regard, relying on the Federal Court’s decision in the case of Integrated Training Services Sdn Bhd v Kerajaan Malaysia & Ors [2022] 1 LNS, 528, the counsel for the Appellants had urged that this Court takes cognisance of the parties’ freedom to contract. S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 [25] On the issue of variation of the Debit Card SPA dated 8.8.2014, notwithstanding that the Appellants did not dispute that there was a proposed amendment, it was strenuously contended that the proposed amendment had not yet been concluded considering the fact that the core terms of the agreement (i.e. the consideration part, in particular the pricing/payments or the charge rates) had not been agreed upon. It was further contended by the Appellants that the original annual charges/fees in the proposed draft was different from the original contract (Debit Card SPA dated 8.8.2014). [26] It was also the contention of the Appellants that since the Respondent’s payment entitlement under the Debit Card SPA would be the fees or charges for each card issued (i.e. when the debit card went live and active), therefore the proposed amendment or the variation cannot be said to have been concluded or finalised considering that the processing charges/payments or the pricing had not been agreed upon (being the outstanding core part of the Debit Card SPA). Consequently, the variations upon the Draft Prepaid Card SPA would not be a binding agreement. [27] On the other hand, the Respondent’s contention was that the parties by their conducts (subsequent to BNM’s rejection of Premia’s 1st Application for Debit MasterCard license) have admitted, acknowledged, acquiesced, and elected to continue their contractual relations as per the Draft Prepaid Card SPA. The counsel for the Respondent argued that the Learned Judge had rightfully found that the Notice of Termination dated 30.11.2018 “is a sham and an attempt by the Appellants to avoid financial culpability”. [28] Although we are minded that there was never any actual signing or execution of the Draft Prepaid Card SPA, nonetheless the Appellants’ own S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 conducts (subsequent to BNM’s rejection of the concept under the Debit Card SPA) were a far cry from any legitimate call or expectation for a strict formal execution of a subsequent contract. Since the Appellants themselves have acted against their own call for formality, it would be severely unjust for us to impose such formality against the Respondent. [29] The Appellants cannot blow hot and cold regarding the Respondent’s continued appointment as the CMS Provider even after the parties have mutually moved away from the terms and concept of the initial Debit Card SPA. This is especially so considering the Appellants have overtly admitted to the Respondent’s continued position as LTH and Premia’s CMS Provider under the Prepaid MasterCard program after the Debit MasterCard model was rejected by BNM. [30] Many legal acrobatics were thrown by the Appellants to eschew away from their own acquiescence and election to continue contractual relations with the Respondent. Nonetheless, none of those acrobatics can mask the actual truth in the Appellants’ actual intent in continuing contractual relations with the Respondent beyond the confines of the Debit Card SPA. Despite the non-execution of the Draft Prepaid Card SPA: a. It was LTH’s own CEO (Ameen) who had instructed the Respondent to shift the development towards a Prepaid Card CMS model instead of a Debit Card model via LTH’s email dated 18.1.2018; b. It was LTH and Premia who had applied to BNM (while still retaining the Respondent as the CMS Provider) for the license to issue out Prepaid MasterCards on 12.2.2018; S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 c. It was LTH and Premia who had applied to register the Respondent as the CMS Provider with MasterCard under the Prepaid Card Model; d. It was upon LTH and Premia’s application that MasterCard on 7.6.2018 confirmed the Respondent’s registration as the CMS Provider under the Prepaid Card Model; e. It was LTH itself that had informed the Respondent that Premia had duly registered the Respondent as Premia’s CMS Provider under the Prepaid Card Model; and f. It was LTH itself that had proceeded to allow MasterCard’s own Country Manager to conduct the appropriate test to determine that the Prepaid Card CMS delivered by the Respondent had actually went Live on 24.9.2018. [31] Further compounding the Appellants’ conducts in election and acquiescence, were the testimonies of the Appellants’ own witnesses during trial: a. LTH’s Group CFO (Rozaida) confirmed that Encap had continued working with LTH and Premia to pursue the Prepaid Card System: “MDM: And in fact, Encap was going on – was carrying on working with Tabung Haji and Premia Cards to impelement the Prepaid Card system. Is that correct” ROZAIDA: Benar, YA” S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 b. LTH’s Group CFO (Rozaida) confirmed that it was reasonable (“munasabah”) for Encap to assume that the amended terms were agreed upon: “MDM: Thank you. So, as far as Encap is concerned, isn’t it reasonable for Encap to assume that the amended terms were agreed? That’s why they were carrying on working? … ROZAIDA: Munasabah, YA c. LTH’s own CEO (Ameen) overtly admitted during trial that all of the amendments in the Draft Prepaid Card SPA were agreed upon and became the basis to instruct the Respondent to continue work pursuing the Prepaid Cards Model instead of the Debit Cards Model: “MDM: Alright. So I’m going to put this to you, En Ameen. As far as my client was concerned, as at 6.6.2018, everything had been agreed. All of the amendments have been agreed. And that was the basis of which you continued to instruct them to work on the Prepaid Card. And they worked on the Prepaid Card. Do you agree or not? Ameen: Yes. [32] The barrage of evidence above is far too compelling to allow the Appellants now to renege on their original admission, acquiescence, and election to continue contractual relations with the Respondent. Considering the Appellants’ conducts, the Appellants should be estopped from denying the applicability of the Draft Prepaid Card Agreement. If LTH was genuinely seeking for termination for the failure of the Debit Card S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 Model, then LTH should have terminated the signed Debit Card SPA BEFORE works for under the Draft Prepaid Card SPA were carried out. It is now far too late for LTH and Premia to rely on the initial Debit Card SPA dated 8.8.2014 (wherein Clause 17.2 of the SPA was vigorously and staunchly relied upon) when LTH and Premia both had acted beyond the scope and concept of the Debit Card SPA and acted in line with the Draft Prepaid Card SPA in pursuit of the Prepaid Cards Model. It was clear that the Appellants have elected to proceed with the Draft Prepaid Card SPA to carry on the works for the issuance of Prepaid Cards (no longer Debit Cards under old Debit Card SPA). [33] The Appellants have by their own hands elected not to terminate the contractual relationship with the Respondent, and instead unequivocally elected to affirm and perform works within the scope and concept of the Draft Prepaid Card SPA. It would be gravely unjust for us to allow the Appellants to approbate and reprobate their stances at their whims and fancies. Suffice that we refer to the Court of Appeal decision in Nirwana Construction Sdn Bhd v Pengarah Jabatan Kerja Raya Negeri Sembilan Darul Khusus & Anor [2008] 4 MLJ 157: [118] In my view, when the respondent allowed the appellant continued performance of the contract on more than one occasion, and even entering into a supplementary contract, the respondent had thereby elected to affirm the contract to run its course. The appellant is entitled to regard it as such especially when the respondent accepted the contract from the appellant on 5 June 1996, which the appellant is entitled to treat as the respondent having waived its right to terminate. Nothing would be clearer and more equivocal than this conduct of the respondent (see Berry v Hodson [1988] 1 Qd R S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 361; Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305). (Emphasis added.) [34] Estoppel would also bar the Appellants from constantly shifting the goalpost and contradicting their own prior admissions, acquiescence, and election. (see Ho Yau Hong & Ors v How Yaw Ming and another appeal [2023] MLJU 933 ; Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ ; of Cheah Theam Kheang v City Centre Sdn Bhd & Other Appeals (2012) 2 CLJ 16). [35] The conducts and correspondences to affirm the Draft Prepaid Card SPA (in varying the Debit Card SPA) were squarely within the stipulation and allowance of variation by way of correspondences already mutually agreed under Clause 23.7 of the Debit Card SPA. Thus, the Respondent’s claim in actuality was supported both in contract law and in equity. [36] The aforementioned in this part considered, we would answer Issue 1 in the NEGATIVE. LTH’s termination of the contract was indeed unlawful and wrong. [37] And all considered above, the answer in Issue 2 must be in the POSITIVE. It was indeed appropriate for the Respondent to presume that the Appellants have agreed with the Draft Prepaid Card SPA (as a variation to the signed Debit Card SPA). F. ISSUE 3: WAS IT APPROPRIATE FOR THE LEARNED JUDGE TO ALLOW THE RESPONDENT’S CLAIM FOR EXPECTATION LOSS / PROFIT LOSS BASED ON THE APPELLANT’S PROJECTION SUBMITTED TO BNM? S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 [38] Damages can either be Expectation loss / profits (putting parties in position as if the contract was completely performed) or Reliance loss / wasted expenditure (putting parties in a position BEFORE the contract was ever entered into). A claimant must elect one of the two. But the Court can award reliance loss when expectation loss cannot be proven (see Blue Sea Pools Swimming Centre (Klang) Sdn Bhd v Loo Ah Chew & Sons Sdn Bhd [2003] MLJU 139): “A plaintiff in such a case has an election: he can either claim for his loss of profits; or for his wasted expenditure. He cannot claim both. If he has not suffered any loss of profit -- or if he cannot prove what his profits would have been-- he can claim in the alternative the expenditure which has been thrown away, that is wasted by reason of the breach”. (Emphasis added.) [39] In the present case, the Respondent had elected to claim for expectation loss or loss of profits as though the contract had been successfully performed. And as a measure to gauge the profits the Respondent would have earned had the contract been successfully performed, the Respondent placed great reliance on the Appellants’ own admission of a projected sum of profits which the Appellants themselves have submitted to BNM via Premia’s 2nd Application (for the Prepaid Card license). [40] Now, the Appellants’ primary qualm against the Learned Judge’s assessment of damages was that supposedly the calculation tabulated in the breakdown of projected profits (that was prepared and submitted by the Appellants themselves to BNM) were merely projections without any basis. We are indeed aware that it is trite law that projections per se are not valid proof of damages (see Sime UEP Properties Bhd v Woon Yoke Lin [2002] 3 CLJ 719): S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 “It is clear from the authorities that in order to succeed in claims for damages for loss of profit one must establish the actual losses one would have suffered as a result of the breach. A projection as in this case is not sufficient to establish the would be losses of profit. A venture into a business would not necessarily mean that one can make a profit out of it because there are instances where people suffer losses. Not all businesses end up with a profit. It is clear to us that the respondent failed to establish the expected losses as a result of the breach.” (Emphasis added.) [41] However, distinctive and distinguishable from Sime UEP (supra), the projection relied upon by the Respondent was not Encap’s own baseless projection. Instead, the projection was the Appellant’s own tabulation and mathematical calculation of what the Appellant had admitted to BNM to be the projected profit that the Respondent would have earned if the contract was successfully performed. It cannot at all be said that the Respondent’s calculation was mere conjecture or speculative because: a. The expected profit was mathematically calculated based on the costs payable to the Respondent for issuance of new cards (RM1.50 per new cardholder) and renewal of existing cards (RM3.50 per renewal). These costs were then multiplied by the foreseeable or expected number of pilgrim cardholders over a 5 years’ period. In the worst-case scenario, the Appellants own submitted and admitted projection of profit payable to the Respondent stood at RM42,287,500.00;, b. This calculation was the Appellants’ calculation and not the Respondent’s self-serving calculations. Thus, from the outset this was S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 the calculation of profits which were readily admitted and acknowledged by the Appellants themselves; and c. This calculation by the Appellants was the exact same calculation that the Appellants had submitted to BNM (as the truth) for BNM’s vetting in view of obtaining the BNM’s approval to grant the requisite license for the Appellants to issue out the Prepaid MasterCards. [42] Thus, the calculation was not at all a baseless conjecture. There was evidence in the form of the Appellants’ own admission and calculation. There was clear mathematical methodology in which the Appellants derived the projected sum of profits. Furthermore, it certainly would not reflect kindly to the Appellants’ integrity if the Appellants insisted that the same calculation they have nonchalantly submitted to BNM was a mere figment of their imagination. Thus, it is infinitely more probable than not that the figures that the Appellants have submitted to BNM, were the figures that the Appellants genuinely admit and believe to be reasonable and truthful. There must be gruelling gravity attached to the calculation if the Appellants were willing and ready to submit the same to a critical national governing body such as BNM. [43] The Court of Appeal had very recently dealt with this exact instance where the computation of profits was readily admitted by defendant in the case of Kumpulan Prasarana Rakyat Johor Sdn Bhd v Emercon Bina Sdn Bhd and another appeal [2021] 1 MLJ 629. In Emercon (supra), the Court of Appeal dealt with the instance where the Plaintiff’s calculations for projected profits were readily agreed by the Defendant. The Court of Appeal held that since the projection was already admitted and was within the contemplation of the Defendant, it was no longer open S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 for the Defendant to argue that the projections were mere speculation or conjecture: “[201] The defendant had without qualification, agreed to the computations. The projected figures were from the inception, ie from the year 1998. Thus, it is not open to them now to submit that the assessment was speculative and conjecture or projection which is not sufficient to prove loss of profits. Unlike Bank Muamalat Malaysia Berhad, there was supporting evidence to show how the figures in the said assessment and estimation were arrived as found in the development agreement and the relevant documents thereto and exhs P1–P4.” (Emphasis added.) [44] The Appellants’ admission in the present case is infinitely more damning considering the projection was not the Respondent’s projection. Instead, it was the Appellants own admitted calculations which was readily submitted to BNM for vetting and approval. [45] All the above in this part considered, we answer issue 3 in the POSITIVE. It was just and appropriate for the Learned judge to allow the Respondent’s claim for expectation loss / profit loss based on the Appellants’ own projection submitted to BNM. G. JOINT AND SEVERAL LIABILITY OF THE APPELANTS [46] On the issue of the joint and several liability of LTH/Premia / privity of contract between the 2nd Appellant and the Respondent, the counsel for the Respondent argued that there was a material error on the part of the Learned Judge in lifting up the corporate veil in the instant case which S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 resulted in LTH/Premia being jointly and severally liable and responsible to the Respondent. [47] It was argued on behalf of the Appellants that the Learned Judge had erred in law and/or fact when he found that both the Appellants are jointly and severally liable to the Respondent for the sum of RM2 million for exemplary damages. The counsel for the Appellants submitted that the Respondent had never pleaded that the Appellants are to be held jointly and severally liable. Nor did the Respondent sought or pleaded for the corporate veil of the 2nd Appellant to be lifted and/or pierced. Relying on the decision of the Federal Court decisions in the case Solid Investments Ltd v Alcatel-Lucent (M) Sdn Bhd (previously known as Alcatel Network Systems (M) Sdn Bhd) [2014] 3 MLJ 785 and Iftikar Ahmed Khan v Perwira Affin Bank Bhd [2018] 1 CLJ 415, the counsel for the Appellants submitted that the Learned Judge was clearly in error in fact/in law in his finding that both the Appellants are jointly and severally liable to the Respondent in the damages sustained by the Respondent. [48] Now, we are minded that the Federal Court in Alcatel-Lucent (supra) had pronounced that only conducts of fraud would entitle the Court to lift the corporate veil and that it is no longer sufficient to merely prove that it is in the interest of justice to do so. Nonetheless, the full breadth of the Federal Court’s decision does not render this general rule to be immutable. Of course, we are in agreement with this general rule, but we are also aware that most of the precedents deciding on the issue of lifting the corporate veil almost always have placed caveats in that the propriety of the piercing must always be tested against any given case’s factual matrix. We must highlight that there is also a plethora of precedents which had (by its own respective factual matrix) had allowed the lifting of the corporate veil when it was in the interest of justice to do so. Even the Federal Court in Alcatel- S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 Lucent had mentioned of a “flexible approach” in existence in determining the propriety of piercing the corporate veil: “Even if we were to apply the flexible approach to the circumstances of the case we are of the view that such fiduciary relationship did not exist in the case. This is because commercial transactions often do not give rise to fiduciary duties because they do not meet the criteria for characterization as fiduciary in nature (see John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (Matter No S309/2009] [2010] HCA 19 High Court of Australia). We also find it useful to refer to the judgment of the High Court of Australia in Hospital Products Limited v United States Surgical Corporation & Ors at p 69 where Gibbs CJ said: On the other hand, the fact that the arrangement between the parties was of a purely commercial kind and that they had dealt at arm's length and on an equal footing has consistently been regarded by this Court as important, if not decisive, in indicating that no fiduciary duty arose: see Jones v Bouffier (1911) 12 CLR 579; Dowsett v Reid (1912) 15 CLR 695; Para Wirra Gold & Bismuth Mining Syndicate NL v Mather [1934] 51 CLR 582; Keith Henry & Co Ptv Ltd v Stuart Walker & Co Ptv Ltd (1958) 100 CLR 342. A similar view was taken in Canada in Jirna Ltd v Mister Donut of Canada Ltd (1971) 22 DLR (3d) 639”.(Emphasis added.) [49] So, to argue that the principle in Alcatel-Lucent is without exception would be gravely erroneous. It must be appropriately understood that the Federal Court had found that principal companies and subsidiaries within the same group of companies maintain a separate veil so long as it can be proven that: S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 a. the two companies had always dealt with each other on an EQUAL FOOTING; and consequently b. the two companies do not owe any fiduciary duty from one another [50] Now, applying this exception in the present case, it is profoundly obvious that Premia had never dealt with LTH on an equal footing. It was even readily admitted by LTH and Premia that Premia was incorporated solely for the purpose of holding the BNM license on behalf of LTH. Premia’s in- depth involvement within the Kad TH Project had always hung on at the mercy and courtesy of LTH. [51] It is thus opportune for us to refer to a very recent Court of Appeal decision which had astutely reminded that precedents dealing with the issue of the corporate veil ought not to be applied too strictly and must always consider the nuances of each individual case’s factual matrix. (see Yahya Mohd Khalid v MISC Berhad [2020] MLJU 77): “[21] There are no shortage of Malaysian cases on ‘lifting’ save that those cases must only be treated as a guideline based on its own special facts and must not be treated as a statutory proposition of any kind. The underlying test is the justice of the case and the gravity of the breach to the rule of law, based on jurisprudence and not necessarily the strictures placed in judicial precedents… [22] It is unfortunate the dicta of the Court of Appeal in Law Kam Loy which refused to ‘lift’ based on only technical grounds was endorsed by the Federal Court in the case of Solid Investments Ltd v S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 Alcatel Lucent (Malaysia) Sdn Bhd [2014] 3 CLJ 73 to advocate a high threshold to ‘lift’. Though, the Federal court had placed a stringent test as opposed to a liberal test to ‘lift’, again the decision is based on ‘fact centric’ issues. It must also be noted that Lord Keith’s statement in Adams v Cape Industries Plc [1990] Ch 433 which the Federal Court had relied, was not restricting ‘lifting’ where rule of law is breached but was limiting its scope when it relates to a group of companies. And in those cases, Lord Keith had suggested extra caveats. It must be noted that Law Kam Loy’s jurisprudence was endorsed by the Federal Court, when the facts of Law Kam Loy’s case had little to do with the group of companies issues as in Adams case or the Federal Court’s decision itself. It must also be noted that the decision of the Federal Court on Solid Investment is good law in relation to group of companies on ITS OWN SPECIAL FACTS. That distinction must be kept in mind.” (Emphasis added.) [52] We are inclined to agree with the ratio decidendi above in that the high threshold in Alcatel-Lucent ought not be strictly hailed as the be all and end all authority to determine the propriety of piercing the corporate veil. The high threshold to lift might have been applicable to the special facts in Alcatel-Lucent in which the associated companies had always operated on equal footing with not any company being subservient to another. The associated companies in Alcatel-Lucent were independent and were conducting their own respective trade and businesses. The two companies tend to their own distinct commercial interests and were not bound to any relationship of trust and confidence between one another. This was the special facts in Alcatel-Lucent which led the Federal Court to be dissuaded from piercing the corporate veil: S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 “[31] In Bristol and West Building Society v Mothew [1998] Ch 1 at p 18, Millet LJ made the following observation on the question of who is a fiduciary: “A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal.” (Emphasis added.) [53] On that score, this is the exactly the special facts which were entirely distinguishable and distinct from the present case. Premia clearly is a fiduciary to LTH. Premia was put in a position of trust and confidence to hold the BNM License on behalf of LTH. LTH as principal is indeed entitled to Premia’s loyalty and the expectation that Premia would hold the BNM License in good faith for the best interest of LTH. [54] Additionally, considering Premia’s sole purpose of incorporation for the sole sake and benefit of LTH, it was exceedingly clear that Premia owed a fiduciary duty to LTH as LTH’s proxy BNM license-holder. The BNM license was the legal ticket to enable LTH to put the Kad TH Project in motion. Thus, it is within Premia’s fiduciary duty to ensure that the Kad TH Project to be a success so as to allow LTH to reap the benefits from the same project. S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 [55] The parent-subsidiary relationship between LTH and Premia was not at all the typical commercial relationship between a parent company and an independent subsidiary who existed as a separate commercial arm with its own independent commercial vision and mission. Premia existed solely for LTH’s commercial interest in the Kad TH Project. Thus, by the same provisos and exception elucidated within the Federal Court decision in Alcaltel-Lucent itself, it would clearly mean that Premia and LTH ought to be considered as the same one and singular entity. [56] Thus, considering the explicitly in-depth involvement of Premia together with LTH in the pursuit of realising the Kad TH Project, justice would require that both Premia and LTH be considered as one and the same entity. [57] In this regard we are in full agreement with the counsel for the Respondent that it is patently clear from the evidence that LTH was the primary contracting party under the Debit Card SPA and retained absolute control over the entire card Kad TH Project. Premia was introduced by LTH as a special purpose vehicle to entirely hold the Prepaid Card. The incorporation and of the 2nd Appellant by LTH served no other purpose other than the realisation of the Kad TH Project. [58] In addition, we must emphasise that since the incorporation and introduction of Premia, all dealings between the parties had reflected a tripartite arrangement / agreement to which there were no demarcation at all drawn between LTH and Premia in their dealings with the Respondent. S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 [59] The Appellants cannot now baselessly deny their primary purpose in the inclusion/bringing of Premia in the Kad TH Project in an attempt to isolate Premia from any liability. [60] We are also aware that the Appellants also argued that the Respondent had not specifically or sufficiently pleaded a case on fraud to pierce the corporate veil. Now, of course in cases involving fraud, the claimant must sufficiently plead the particulars of fraud that he alleges. Consequently, since the Respondent’s claim was not based on fraud, the Respondent of course had not pleaded any particulars of fraud. Nonetheless, as we have iterated earlier, fraud is not at all the be all and end all fact that would entitle the Court to lift the corporate veil. [61] Thus, it was not necessary for the Respondent to plead a case on fraud so as to entitle them to lift the corporate veil. It suffices that the Respondent sufficiently pleads facts that would prove that the justice requires that the corporate veil to be lifted. If there were already sufficient facts pleaded by the Repondent (of which there was definitely plenty) to refer to the exercise of lifting the corporate veil, then the Respondent would already be within its rights to contend for the corporate veil to be lifted. Suffice that we refer to the case of RDS Bina Sdn Bhd v Ong Chin Hoe & Anor [2014] 11 MLJ 606: “[39] Here, this rule is not offended at all as the plea has indeed been raised and in my view, more than adequately. The plaintiff has pleaded sufficiently and there is no prejudice alleged or otherwise occasioned to the defendant. I agree with learned counsel for the plaintiff that no specific language is required. Although the words 'lifting of the veil of incorporation' may not have been specifically used, there are more than adequate pleas in this statement of claim to satisfy the S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 dictates of the Rules of Court 2012; and capture the essence of the plea.” (Emphasis added.) [62] In these circumstances, we are of the considered view that the Learned Judge was astutely correct in his finding of joint and several liability of the Appellants and there is no reason for us to disturb the same finding. H. EXEMPLARY DAMAGES [63] We will now address the challenge made by the Appellants in respect of the Learned Judge’s decision in awarding the Respondent exemplary damages in the sum of RM2 million. The Appellants strenuously argued before us that the Learned Judge had clearly fell into error when he granted the Respondent exemplary damages. The Appellants contended that the Learned Judge had not indicated in his grounds of judgment that he had in his mind the general principle as to when and how a court in a commercial context would grant exemplary damages. More so, it is settled law that in a pure commercial and contractual claim, the granting of exemplary damages can only arise in a very exceptional case. [64] Upon our perusal of the grounds of judgment of the Learned Judge, we understood that the Learned Judge had found it appropriate to award exemplary damages on the sole ground that the Appellants have caused so much inconvenience to the Respondent due to the constant shifts in the features as to the nature of the card. [65] On the other hand, the counsel for the Respondent had strongly urged us to maintain the Learned Judge’s award of exemplary damages. The S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 counsel submitted that the Respondent’s case falls within the scope or threshold in which exemplary damages ought to be granted. [66] In Rookes v Barnard [1964] AC 129, the English Court (the House of Lords) had propounded that an award of exemplary damages would be justified in three categories of cases, namely: (a) oppressive, arbitrary or unconstitutional conduct by government servants; (b) conduct calculated to result in profit to the defendant; and (c) where granting of such exemplary damages was expressly authorised by statute. [67] We must take cognisance that the legal principle expounded in Rookes v Barnard (supra) is the leading authority regarding the award of exemplary damages and the same principle had been adopted in many local precedents in the Malaysian Courts. (See: Sin Heap Lee-Marubeni Sdn Bhd v Yip Shou Shan [2015] 1 MLJ 515; Templeton & Ors v Low Yat Holdings Sdn Bhd [1993] 1 MLJ 443; Laksamana Realty Sdn Bhd v Goh Eng Huat and another Appeal [2006] 1 MLJ 675; Sambaga Valli a/p KR Ramasamy v Datuk Bandar Kuala Lumpur & Ors and another Appeal [2018] 1 MLJ 784; Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v Awang Soh bin Mamat & Ors [2009] 4 MLJ 610; Cheng Hang Guan & Ors v Perumahan Falim (Penang) Sdn Bhd [1993] 3 MLJ 352). [68] Very recently, in the case of Big Junkyard Sdn Bhd & Anor v Chan Kah Wai [2023] 1 CLJ 564, the Court of Appeal had revisited the principle set out in Rookes v Barnard (supra). The Court of Appeal held that there are two parts in granting exemplary damages. The first part is to clear the threshold. It is incumbent for the Plaintiff to show that he falls within one of the three categories of cases set out in Rookes v Barnard. The failure S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 to cross this threshold is fatal for a claim for exemplary damages. Once the Plaintiff has fulfilled this threshold, then the second part is, then it incumbent on the Plaintiff to prove the ‘outrageous’ conduct of the Defendant. [69] It must be reminded that the outrageous conduct must be well beyond mere wrongful act and must be so exceptionally oppressive, offensive, contumelious, and motivated by malevolence or insolence. Mere wrongful conduct is insufficient to entitle a claimant to claim more than the sum that is already sufficiently compensatory to him. And in the scope of a commercial contract, a mere act or conduct in breach of a contract is certainly not sufficient to entitle a claimant to exemplary damages. The Court of Appeal in Big Junkyard (supra) held the following: “The conduct must be high-handed or malicious act or an act done in an oppressive manner. Mere wrongful conduct is not sufficient. There must be something exceptional in the act that was done. The matter was lucidly stated by Lord Devlin in Rookes v. Barnard [1964] AC 1129…” (Emphasis added.) [70] We also recognise that exemplary damages (if proven to be appropriate) can be awarded in both contractual and tortious claims. [71] Applying the first part of the ‘threshold test’ propounded in Rookes v Barnard, we have to first identify whether or not the case before us falls within any of the three categories as listed by the House of Lords. [72] It is obvious that the Appellants were not servants of the Government, Therefore, no argument can arise that there has been any oppressive, S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 arbitrary, or unconstitutional action taken by the servant of the Government. [73] Were the Appellants’ conduct calculated or designed to make a profit for themselves which may well exceed the compensation payable to the Respondent? We are unable to identify how the Appellants were able to garner any kind of profit from the failed Kad TH Project as the objectives of the Service Provider Agreement did not materialize. We were made to understand that no cards under the Kad TH Project were ever issued to any of the 1st Appellant's depositors. [74] Are the exemplary damages claimed by the Respondent in this case expressly authorised to be awarded by a statute? We do not believe so as there is no statute that expressly authorized the granting of exemplary damages to the Respondent. The answer is an obvious negative. [75] Thus, the Respondent would have not satisfied the 1st part of Rookes v Barnard’s threshold test. For the sake of completion, we will also briefly test the facts of this case against the 2nd part of the threshold test. In the 2nd part of the threshold test, the Respondent must prove that the conduct by the Appellants was so outrageous to the extent that it was so repugnant and abhorrent that it would warrant this Court’s condemnation and denunciation (vide a punishment by means of awarding additional damages). An outrageous conduct had been defined by the Court of Appeal in the case of Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur & Ors and another appeal [2018] 1 MLJ 784: [33] The exemplary damages or punitive damages — the two terms now regarded as interchangeable — are additional damages awarded with reference to the conduct of the defendant, to signify disapproval, S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 condemnation or denunciation of the defendant’s tortious act, and to punish the defendant. Exemplary damages may be awarded where the defendant has acted with vindictiveness or malice, or where he has acted with a ‘contumelious disregard’ for the right to the plaintiff. The primary purpose of an award of exemplary damages may be deterrent, or punitive and retributory, and the award may also have an important function in vindicating the rights of the plaintiff (see Rookes v Barnard [1964] 1 All ER 367; AB and others v South West Water Services Ltd [1993] 1 All ER 609; Broome v Cassell & Co Ltd [1971] 2 QB 354, Laksmana Realty Sdn Bhd v Goh Eng Hwa and another appeal [2006] 1 MLJ 675). [76] Now, we are minded that there was indeed wrongful conduct and breach of the Draft Prepaid Card SPA by the Appellants who had terminated the parties’ contracts on the misplaced ground of alleged breach of the Debit Card SPA by the Respondent. We are aware and are resolute in our finding that indeed the Appellants had done a commercial and contractual wrong against the Respondent. Nonetheless, as we have iterated earlier, mere wrongful conduct does not necessarily warrant the Court’s award of exemplary damages. [77] The Learned Judge had awarded exemplary damages on the grounds that somehow the Appellants had taken the Respondent for a ‘ride’ by constantly tilting, shifting, and changing the features they require the card to be in the Kad TH Project. We have to disagree with the Learned Judge’s finding for two reasons: a. Change, dynamism, and adaptability is common in any commercial endeavours. It must be minded that a portion of the change in features were also due to BNM’s rejection and suggestion as well (which was beyond any parties’ control). The change in features (although can be S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 seen as onerous) is not exactly a ‘wrongful conduct’. The wrongful conduct in this case was the wrongful termination of the Draft Prepaid Card SPA; b. If the constant shifting of the features were indeed too onerous, it was always open to the Respondent to refuse to comply and insist on the original terms agreed upon with the Appellants. But instead the Respondent obliged and went along with the Appellants’ shifts and changes. This was acquiescence on the Respondent’s part, which inversely brought upon the very same acquiescence on the Appellants’ part which becomes the Respondent’s ground to insist that the terms of the Prepaid Card SPA were already agreed upon and performed by the Appellants. The Learned Judge cannot leverage the parties’ mutual acquiescence as grounds to award exemplary damages. [78] In any case, we are also minded that there were indeed circumstances in the case that brought upon the confusion as to the actual and real terms which were covenanted by all parties. There were changes as to the features well beyond the scope of the Debit Card SPA, and yet there was still no properly executed variation of the Debit Card SPA. At the same time, communications, instructions, and performance of the Draft Prepaid Card SPA was also already well underway. [79] Of course, the correct legal position (as we have found earlier) was that the Appellants were in the wrong for terminating the Draft Prepaid Card SPA (which was acquiesced by the Appellants) on the grounds of breach of the Debit Card SPA. Yet it cannot be said that their wrongful conduct in breach of the contracts was so malevolently driven, vindictive, and in contumelious disregard of the Respondent’s interest. S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 [80] The Appellants’ conduct (although in breach of the Draft Prepaid Card SPA) cannot be equated to an outrageous conduct warranting the grant of exemplary damages. Therefore, the Learned High Court Judge has manifestly erred when he found that both the Appellants are jointly and severally liable to the Respondent for the sum of RM2,000,000.00 in exemplary damages. I. OUR DECISION [81] Based on the above considerations, we allow the Appellants’ appeal in part. We dismiss the Appellants’ appeal on the Learned Judge’s findings as to liability and as to quantum of compensatory damages (award of expectation loss or loss of profits). Thus, the Learned Judge’s finding on liability and award of loss of profits shall be maintained. [82] However, we allow the Appellants’ appeal strictly and limited against the Learned Judge’s wrongful award of exemplary damages. Thus, the Learned Judge’s award of RM2,000,000.00 as exemplary damages is hereby set aside. [83] We also order total costs of RM50,000.00 to be paid by the Appellants to the Respondent, subject to allocatur. Dated 14th November 2023 SGD -------------------- (AZIMAH BINTI OMAR) JUDGE COURT OF APPEAL S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 36 For the Appellants - Messrs. Zaid Ibrahim & C0 1. Alvin Julian 2. Long Mohd Noor Adman 3. Nur Nabila Roelee For the Respondent - Messrs. M David Morais 1. Dato’ David Morais 2. Pavitra Pillai 3. Sara binti Jailany S/N 0mQtZ6dGCUSEnLrDqVM1ZA **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

BA-24C-43-05/2023

PEMOHON JUANG-ANTARA BINA SDN BHD RESPONDEN BMG GLOBAL SDN BHD

- 3 Originating summinses.- Stay & setting aside application are dismissed.- The enforcement is allowed.- total cost of RM10,000 paid to Juang subject to allocatur fee.

23/11/2023

YA Puan Sumathi a/p Murugiah

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=5bf450f1-2945-4825-9835-4c1c37cbf21a&Inline=true

BMG v Juang.pdf IN THE HIGH COURT OF MALAYA AT SHAH ALAM, SELANGOR DARUL EHSAN ORIGINATING SUMMONS NO: BA-24C-38-05/2023 BETWEEN BMG GLOBAL SDN BHD (Company No. 200501020540 (702664-W) AND JUANG-ANTARA BINA SDN BHD DEFENDANT (Company No. 199501016618 (345821-P) (HEARD TOGETHER WITH) IN THE HIGH COURT OF MALAYA AT SHAH ALAM, SELANGOR DARUL EHSAN ORIGINATING SUMMONS NO: BA-24C-39-05/2023 BETWEEN BMG GLOBAL SDN BHD (Company No. 200501020540 (702664-W) AND JUANG-ANTARA BINA SDN BHD (Company No. 199501016618 (345821-P) 23/11/2023 09:01:57 BA-24C-43-05/2023 Kand. 18 S/N 8VD0W0UpJUiYNUwcN8vyGg **Note : Serial number will be used to verify the originality of this document via eFILING portal (HEARD TOGETHER WITH) IN THE HIGH COURT OF MALAYA AT SHAH ALAM, SELANGOR DARUL EHSAN ORIGINATING SUMMONS NO: BA-24C-43-05/2023 BETWEEN JUANG -ANTARA BINA SDN BHD PLAINTIFF (Company No. 199501016618 (345821-P) AND BMG GLOBAL SDN BHD DEFENDANT (Company No. 200501020540 (702664-W) JUDGMENT (3 Originating Summonses (OSs)) A. INTRODUCTION [1] On November 2022, Juang-Antara Bina Sdn. Bhd. (Juang) had commenced an Adjudication Proceedings pursuant to the Construction Industry Payment and Adjudication Act 2012 (CIPAA 2012) against BMG Global Sdn. Bhd. (BMG) to claim a sum of RM2,822,066.26 as unpaid sum. The Adjudicator decided in favour of Juang in his Adjudication Decision (AD). S/N 8VD0W0UpJUiYNUwcN8vyGg **Note : Serial number will be used to verify the originality of this document via eFILING portal [2] As a result of the AD, the followings were filed by the parties: (i) OS No. BA-24C-38-05/2023 (Suit 38) was filed by BMG to set aside the AD pursuant to s.15 of CIPAA 2012; (ii) OS No. BA-24C-39-05/2023 (Suit 39) was filed by BMG to stay of execution of the AD pursuant to s.16 of CIPAA 2012; and (iii) OS No. BA-24C-43-05/2023 (Suit 43) was filed by Juang against BMG to enforce the AD pursuant to s.28 of CIPAA 2012. [3] Since there are 3 OSs filed in relation to this AD, the parties agreed to having all the 3 OSs heard together and for the decision to be delivered together. Since this is a cross suit between the parties, for ease of reference the parties will be referred to henceforth with the acronym of Juang and BMG wherever applicable. B. BRIEF BACKGROUND [4] By way of a Letter of Award dated 19.9.2017, BMG had appointed Juang as a sub-contractor to carry out a construction of a bridge and all related works in respect of a Jambatan Merentasi Sungai Pahang Dari Kg. Guai ke Kg. Seberang (the Project). S/N 8VD0W0UpJUiYNUwcN8vyGg **Note : Serial number will be used to verify the originality of this document via eFILING portal [5] Due to a non-payment of claims made by Juang from BMG, Juang issued a payment claim to BMG requesting for a sum of RM2,822,066.26, comprising as follows: (i) RM1,575,196.38 being the total amount for the Payment Certificates Nos. 40 & 41 and the Progress Claim No. 48 amounting to RM168,650.65, RM376,734.44 and RM1,129,811.29 respectively; and (ii) RM1,146,869.88 being the First Moiety of the Retention Sum. [6] BMG on the other hand had not responded to the payment claim by any Payment Response to Juang. C. ADJUDICATION PROCEEDINGS [7] Juang initiated Adjudication Proceedings against BMG by issuing a Notice of Adjudication dated 4.11.2022 and an Adjudication Claim was served on 21.12.2022 to BMG. [8] An Adjudication Response was replied by Juang on 9.1.2023 cross claims: i. RM3,609,000.00 being the liquidated ascertained damages (LAD) that BMG is entitled to impose against Juang; S/N 8VD0W0UpJUiYNUwcN8vyGg **Note : Serial number will be used to verify the originality of this document via eFILING portal ii. RM398,745.03 being the differential sum as a result of remeasurement; and iii. Costs. [9] Upon conclusion of the Adjudication Proceedings, the Adjudicator, Lim Hock Siang had delivered his decision in favour of Juang via his AD dated 20.3.2023 as follows: 13.1 an adjudicated sum of RM2,772,096.26; 13.2 pre-action interest at the rate of 5% per annum; 13.3 costs in the sum of RM89,533.22 which includes t fees, AIAC administrative costs, taxes as well as party to party costs [10] The parties agreed for this court to hear and decide the 3 OS together. [11] Being dissatisfied with my decision, a Notice of Appeal has been filed by BMG. D. OBJECT CIPAA 2012 [12] CIPAA 2012 is a creature of the legislation intended to facilitate speedy and regular payments in the construction industry. As cash flow is the utmost important factor in the construction industry, CIPAA provides interim measures to disputing parties to solve payment issues expeditiously so as not to jeopardise the continuance of the construction contract entered into by them. (see Martego Sdn Bhd v. Arkitek Meor S/N 8VD0W0UpJUiYNUwcN8vyGg **Note : Serial number will be used to verify the originality of this document via eFILING portal & Chew Sdn Bhd and another appeal [2019] 8 CLJ 433; [2019] 5 AMR 516 FC; Bertam Development Sdn Bhd v. R&C Cergas Teguh Sdn Bhd [2017] 1 LNS 2228) E. ISSUES [13] BMG 2012 is premised on : i. The Adjudicator had breached the rules of natural justice in and/or ii. The Adjudicator had not acted impartially and had breached natural justice in failing to consider all documents presented to him which led to him acting in excess of his jurisdiction in arriving at a disproportionate outcome to the detriment of BMG. [14] application for a stay of execution of the AD pursuant to s16 of CIPAA 2012 is premised as follows: i. Pending the full and final determination in arbitration pursuant to s. 16(1) (b) of the CIPAA; ii. That there is a clear and unequivocal error in the AD; and S/N 8VD0W0UpJUiYNUwcN8vyGg **Note : Serial number will be used to verify the originality of this document via eFILING portal iii. That be able to repay the Adjudication Sum should BMG is successful at the Arbitration. [15] Juang 2012 is premised as follows; i. that the Adjudicated Amount is not paid by BMG; and ii. that the AD is neither set aside nor stayed. F. FINDINGS OF THE COURT I. Setting Aside OS -Suit 38 (s.15 of CIPAA 2012) [16] The issues which BMG had raised against the AD are particularly pursuant to s.15(b), (c) and (d) of CIPAA 2012. As such, I will consider whether BMG had discharged its burden on a balance of probabilities to prove to this court that there has been a denial of Natural Justice by the Adjudicator, that the Adjudicator had failed to act impartially and that the Adjudicator had acted in excess of his jurisdiction respectively in arriving to his conclusion of the Adjudication Proceedings. It is also the contention of BMG that there are clear and unequivocal errors in the AD. a. s.15(b) of CIPAA 2012 [17] It is Adjudicator had failed to properly or at all consider all the defences raised by BMG as such the Adjudicator S/N 8VD0W0UpJUiYNUwcN8vyGg **Note : Serial number will be used to verify the originality of this document via eFILING portal had acted in breach of Natural Justice and in excess of his jurisdiction. In particular, the Adjudicator had on LAD as stated in paragraph 28 of the AD on the ground that :- i. Due to the absence of an extension of time clause, the ii. extension of time, Juang merely needs to complete the works within a reasonable time. [18] It defence raised by BMG with regards to the LAD issue as stated in its Adjudication Response. According to BMG, the Adjudicator in his decision at paragraph 28 had failed to consider that there is a total delay of 743 days (from the Completion Date of 18.11.2019 until the date of practical completion on 30.11.2021) which exceeds the total number of days of extension of time that Juang is entitled to. [19] I refer to the case of MRCB Builders Sdn Bhd v. Wazam Ventures Sdn Bhd and another case [2020] 1 LNS 891; [2020] MLJU 208, where Wong Kian Kheong J (as he then was) held that it is sufficient to dislodge a complaint of breach of natural justice if the Adjudicator had given just one reason to have arrived to his decision. [20] The principle of Natural Justice that is said to have been denied here is the right to being heard, audi alteram partem. In an Adjudication Proceedings, the Adjudicator has the duty to accord procedural fairness S/N 8VD0W0UpJUiYNUwcN8vyGg **Note : Serial number will be used to verify the originality of this document via eFILING portal to the parties during the course of the proceedings whereby the issues raised by both parties are to be considered and a decision is to be derived therefrom. In the case of ACFM Engineering & Construction Sdn. Bhd. v. Esstar Vision Sdn Bhd & another appeal [2016] 1 LNS 1522; [2016] MLJU 1776, the Court of Appeal held: [19] 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 [21] In perusing through the AD, unlike what is claimed by BMG, the Adjudicator had deliberated on the issue of LAD at paragraph 17 onwards till he reached a conclusion on this issue at paragraph 28 of the AD. [22] Even BMG had conceded to the fact that the Adjudicator had considered the LAD issue before concluding at paragraph 28 i.e that time is at large and that Juang only has to complete the works within a reasonable time. [23] With regards to the issue of set off of RM398,745.03 being the differential sum as a result of remeasurement, the Adjudicator deliberated at length on this issue at paragraph 36(b) to 38 of his AD before coming to his decision whereby he had decided against claim for a set off. [24] Therefore, BMG address the issue of set off raised by it at the Adjudication Proceedings is totally unsubstantiated and unfounded. S/N 8VD0W0UpJUiYNUwcN8vyGg **Note : Serial number will be used to verify the originality of this document via eFILING portal [25] On whether the Adjudicator had considered issues which were raised by Juang in the Adjudication Reply, it cannot be denied that the Adjudication Reply and a final Sur-Rejoinder by Juang. The issue which was said to have been raised in the Adjudication Reply was that time is set at large, which BMG had addressed in its Rejoinder opposing the same. Juang had also addressed the same issue in its Sur-Rejoinder. As such, BMG has failed to prove to the court that the Adjudicator had not accorded procedural fairness in the Adjudication Proceedings. [26] but had also made his findings in accordance to all the documents in relation to these issues which had been submitted for the purpose of this proceedings. [27] I refer to the case of Bina Puri Construction Sdn Bhd v Hing Nyit Enterprise Sdn. Bhd. [2015] 8 CLJ 728 where it was stated as follows: Adjudicator may be set aside. Since an application under s.15 is not an b. s.15 (c) of CIPAA 2012 [28] An AD can be set aside if it can be established pursuant to s. 15(c) of CIPAA 2012 if BMG discharges its legal burden that the S/N 8VD0W0UpJUiYNUwcN8vyGg **Note : Serial number will be used to verify the originality of this document via eFILING portal Adjudicator lacked independence or impartiality in conducting the Adjudication Proceedings and in delivering the AD. [29] On the issue of lack of independence or impartiality of the Adjudicator, Lee Swee Seng J (as he then was) in the High Court case of Teguh Wiramas Sdn Bhd v. Thien Seng Chan Sdn Bhd [2017] 1 LNS 619; [2017] 4 AMR 501 had stated the following: There is also no basis for the Respondent to allege that the Adjudicator had failed to act independently and impartially. The fact that the Adjudicator did not agree with the Respondent's position on the law is no proof that he had failed to act independently and impartially. Such an allegation should not be launched without some evidence pointing inexorably to a lack of independence or impartiality in the hearing and the delivery of the Adjudi [30] In this case, it is BMG consider issues which had been raised by BMG at the Adjudication Proceedings, such as, omissions and recalculations. It is also said that the Adjudicator had failed to invite for further submissions on these issues and the issue on LAD which BMG had raised as its cross-claim at this proceedings. Hence, the Adjudicator had failed to display impartiality and independence in his role when arriving to his decision. [31] Apart from the allegations made against the Adjudicator, BMG had not adduced any evidence to show that the Adjudicator lacked independence or impartiality in making his decision in favour of Juang. As shown in the above paragraphs when dealing with s.15(b) of CIPAA, the Adjudicator had reasoned out every conclusion that he had reached S/N 8VD0W0UpJUiYNUwcN8vyGg **Note : Serial number will be used to verify the originality of this document via eFILING portal when deliberating the issues brought before him. As such, I am not convinced that BMG has discharged the burden of proving the allegation made against the Adjudicator under this limb. c. s.15(d) of CIPAA 2012 [32] s.27 of CIPAA 2012 provides the jurisdiction in which the Adjudicator can conduct the Adjudication Proceedings. s.27(3) of CIPAA particularly gives the Adjudicator the discretion to proceed and complete the adjudication proceedings not withstanding any jurisdiction challenge, without prejudice to the rights under s.15 and s.28 accordingly. [33] An AD is commonly applied to be set aside in reliance of s.15(d), as such the case of Terminal Perintis Sdn. Bhd. v Tan Ngee Hong Construction Sdn. Bhd. and another [2017] 1 LNS 177; [2017] MLJU J (as his he then was) classified jurisdiction 3 categories ie. core jurisdiction, competence jurisdiction and contingent jurisdiction. [34] In this case, the jurisdiction challenge is on the contingent jurisdiction as stated in the Terminal Perintis Sdn. Bhd. v Tan Ngee Hong Construction Sdn. Bhd. and another (supra): there must be further compliance with the requirements of the Act as in that the dispute must be one falling within the matters raised in the Payment Claim and the Payment Response as provided for under section 27(1) CIPAA. In that example the word "jurisdiction" is used in the sense of the scope of the dispute that is before the Adjudicator for decision. So, for example an Adjudicator may not be able to decide on the defence of set-off arising out of S/N 8VD0W0UpJUiYNUwcN8vyGg **Note : Serial number will be used to verify the originality of this document via eFILING portal costs of rectifying defective works if this has not been raised in the Payment Response. If he so decides, then this Court may set it aside as been made in [35] In this case, BMG a frolic of his own in coming to his decision and as such he had acted in excess of his jurisdiction. However, on t all the issues which the Adjudicator had dealt with had been brought to him, including the issue pertaining to LAD. [36] In fact, BMG had in its Affidavit in Support stated that the Adjudicator had failed to consider Clause 17 of the Letter of Award date 19.9.2017 and PILING WORKS AND STRUCTURES 8.1 PILING WORKS (ALL PROVISIONAL) Note: All when deliberating issues involving omissions and recalculation. [37] However, BMG failed to show that this issue was in fact raised during the Adjudication Proceedings. As submitted by Juang, BMG had never raised the issue pertaining to clause 17 of the LOA and the terms in Tender Bill No. 8 in the adjudication proceeding. [38] Therefore, BMG cannot now allege that the Adjudicator has exceeded his jurisdiction because he failed to consider clause 17 of the LOA and terms in Tender Bill No. 8 because these points were never raised by BMG in the Adjudication Proceedings in the first place. [39] Therefore, having failed to establish s.15(b), (c) and (d) of CIPAA 2012 against the Adjudicator, BMG has failed to discharge its burden on S/N 8VD0W0UpJUiYNUwcN8vyGg **Note : Serial number will be used to verify the originality of this document via eFILING portal balance of probabilities to set aside the AD. As such, this application to set aside the AD is hereby dismissed with costs of RM5,000.00 to be paid to Juang by BMG subject to allocatur fees. II. Stay of Execution Suit 39 (s.16 of CIPAA 2012) [40] BMG via its affidavit in support deposed by its director had stated this application is in reliance to s.16(1)(b) CIPAA and that the execution of the AD should be stayed on the basis that there is a pending civil suit. [41] The Federal Court case of View Esteem Sdn Bhd v. Bina Puri Holdings Bhd [2019] 5 CLJ 479 His Lordship Zulkefli Ahmad Makinuddin PCA had in delivering the judgement stated the following: s. 16 of CIPAA would allow some degree of flexibility to the courts to stay the award where there are clear errors, or to meet the justice of the individual case. It is accepted that a stay of the award ought not be given [42] Since I have deli aside the AD, I am of the view that there are no clear and unequivocal errors in the AD which warrant a stay of execution to be granted. [43] On the grounds that stay should be granted pending the final determination of a pending civil suit, to prevent an abuse of s16 CIPAA, I fall back on what was said by Justice Lee Swee Seng (as his Lordship then was) in the case of Pasukhas Sdn Bhd v. Empire Multiple Sdn Bhd and Another Case [2019] 1 LNS 757; [2019] MLJU 1393. His Lordship in his judgment had succinctly reasoned that in spite of s. S/N 8VD0W0UpJUiYNUwcN8vyGg **Note : Serial number will be used to verify the originality of this document via eFILING portal 16(1)(b), allowing a stay merely on the fact that the arbitration had commenced with the service of a notice to arbitrate would render the entire purpose of the CIPAA futile and statutory adjudication wholly ineffective to ensure cashflow in the construction industry. [44] The final reason given for this stay application is that the financial standing of Juang is weak and as such, should BMG is successful in the civil suit, Juang will not be able to pay back the Adjudication Sum to BMG. [45] reveals that Juang has suffered a loss after tax of RM88,524.99. As such, Juang may not be able to repay BMG should it be successful at the civil suit. [46] Be that as sit may, in the same report, it also shows that Juang has a revenue of RM56,874,555.56. A revenue of such an amount certainly does not reflect Juang as a weak concern. BMG has failed to suit decision nugatory should it be made in favour of BMG. [47] In the upshot, I d application with costs of RM5,000.00 subject to allocator fees. III. Enforcement OS Suit 43 (s.28 of CIPAA 2012) [48] As guided by Her Ladyship Mary Lim Thiam Suan JCA (as she then was) in the Court of Appeal case of Inai Kiara Sdn Bhd v. Puteri S/N 8VD0W0UpJUiYNUwcN8vyGg **Note : Serial number will be used to verify the originality of this document via eFILING portal Nusantara Sdn Bhd [2019] 2 CLJ 229, the court may exercise its discretion to grant leave under s. 28(1) and (2) CIPAA to enforce an adjudication decision if the following three conditions (3 Conditions) are met: applying for leave under s. 28 CIPAA; (2) the party against whom an adjudication decision is made, has failed to pay the adjudicated amount on the date specified in the adjudication decision; and (3) [49] In this case, in the absence of any evidences to say otherwise, all 3 conditions have been satisfied and since the setting aside and the application for stay of execution of the AD have been dismissed, Juang application to enforce the AD is allowed with no order as to costs. G. CONCLUSION [50] Premised on the above evidences and reasons: (i) both the Setting Aside and Stay of Execution OSs are dismissed; (ii) the Enforcement OS is allowed; and (iii) a total costs of RM10,000.00 subject to allocatur fees shall be paid to Juang by BMG accordingly. S/N 8VD0W0UpJUiYNUwcN8vyGg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 8VD0W0UpJUiYNUwcN8vyGg **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

BA-22NCvC-324-08/2022

PLAINTIF OMNIX (M) SDN BHD DEFENDAN 1. ) JABATAN AGAMA ISLAM SELANGOR 2. ) PANCAR BAKTI SDN BHD

CONTRACT: Tenancy Agreement – Whether the Tenancy Agreements between the Plaintiff and the 32 managements of Masjid/Surau/Sekolah Rendah Agama/KAFA Integrasi are duly authorize, valid, binding and enforceable? – The Plaintiff has performed its obligations under the Tenancy Agreements – Whether the letter of offers and the tenancy agreements signed by the Defendants had caused detriment and risk to the Plaintiff? – The effect of the letter from Sultan of Selangor – Consent Judgment – Whether the Second Defendant is interfering unlawfully to the Plaintiff’s peaceful enjoyment of its tenancies and interfering with the Plaintiff’s business operation?

23/11/2023

YA Puan Rozi Binti Bainon

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=accd8048-9f13-4527-9499-4c153eff646a&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN (BAHAGIAN SIVIL) GUAMAN SIVIL NO.: BA-22NCvC-324-08/2022 ANTARA OMNIX (M) SDN BHD (NO. SYARIKAT: 201101034429 [962562-X]) – PLAINTIF DAN 1. JABATAN AGAMA ISLAM SELANGOR 2. PANCAR BAKTI SDN BHD (NO. SYARIKAT: 201601001906 [1172832-M]) – DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] The Plaintiff’s claims against the Defendants are for – • a declaration that the tenancy agreements entered into pursuant to the arrangements made between the Plaintiff and the 32 sites of Surau, Sekolah Rendah Agama, Masjid, Madrasah and KAFA Integrasi are valid, binding on and enforceable against the First Defendant. 23/11/2023 13:38:15 BA-22NCvC-324-08/2022 Kand. 105 S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 • an order that the First Defendant shall adhere to and comply with the terms of the tenancy agreements. • an order that the First Defendant retract its notices of eviction and a further order restraining the First Defendant from issuing notice of eviction. • an injunction prohibiting the Defendants from interfering with the Plaintiff’s peaceful enjoyment of its tenancies at the 32 sites of Surau, Sekolah Rendah Agama, Masjid, Madrasah and KAFA Integrasi. • an injunction prohibiting the Defendants from interfering with the Plaintiff’s business operation at the 32 sites of Surau, Sekolah Rendah Agama, Masjid, Madrasah and KAFA Integrasi including prohibiting the Defendants from taking any steps or doing anything that will affect the operation of the Plaintiff’s Infrastructure and Equipment at the 32 sites. [2] After hearing this Suit in a full trial proceeding, in the eve of my decision on 16-10-2023, the Plaintiff and the First Defendant has agreed to enter a consent judgment with the agreed terms of settlement. Therefore, I have decided the claims between the Plaintiff against the Second Defendant where I have allowed the Plaintiff’s claims with costs (subject to allocator fee) and my grounds of decision (in Bahasa) is as follows: S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 KEPUTUSAN SELEPAS PERBICARAAN PENUH Permohonan Defendan Kedua (D2) untuk menyewa tapak: Ikatan Dokumen Bersama/B muka surat 170 hingga 215 di mana surat Defendan Pertama (D1) kepada D2 mengenai permohonan D2 untuk menyewa tapak struktur menara telekomunikasi di 9 buah Surau dan sebuah Sekolah Rendah Agama bagi tempoh 3 tahun dengan kadar bayaran RM3000.00 sebulan tertakluk kepada syarat yang ditentukan dalam perenggan 3 surat tersebut. Terma sewaan & Surat Setuju Terima Tawaran ditandatangani & dilampirkan dalam surat tersebut. Terma sewaan: • bayaran sewa bulanan ialah RM3000.00. • wang sewaan dibayar kepada Tabung Infak Jariah Umat Islam Selangor (TIJARI). Mahkamah ini mendapati 10 tawaran sewaan yang diberikan oleh D1 kepada D2 adalah melibatkan Surau dan Sekolah Rendah Agama yang berikut adalah Surau dan Sekolah Rendah Agama yang perjanjian sewaan masih berkuatkuasa antara Plf dengan pihak Surau dan Sekolah Rendah Agama tersebut: i. Surau Al-Ikhlas, Bandar Putera, Klang ii. Surau Al-Ikhwan, Kota Damansara, Petaling Jaya iii. Surau Istiqamah, Seksyen 6, Bandar Rinching, Semenyih S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 iv. Surau An-Nur, Bandar Country Homes, Rawang v. Surau Al-Ehsan, Taman Matang Jaya, Sungai Buloh vi. Sekolah Rendah Agama Sungai Sekamat, Jalan Sungai Sekamat, Kajang vii. Surau Al-Amin, Seksyen 18, Shah Alam viii. Surau Ampang Saujana, Ampang ix. Surau Al-Makmur, Bandar Rinching, Semenyih x. Surau Al-Hidayah, Bandar Saujana Putra, Kuala Langat Mahkamah ini telah meneliti titah D.Y.M.M Sultan Selangor kepada D1 bertajuk “Tawaran Secara Keutamaan (First Right of Refusal) kepada Anak Syarikat Majlis Agama Islam Selangor (MAIS) bagi Sewaan Tanah/Strata di bawah Kawalan Pengarah Jabatan Agama Islam Selangor (JAIS) untuk Tujuan Pembinaan Struktur Menara Telekomunikasi” yang jelas maksudnya iaitu – “Perenggan 2 surat menyatakan bahawa D.Y.M.M Sultan Selangor menitahkan agar D1 memberikan tawaran secara keutamaan (First Right Refusal) bagi sewaan tanah/strata kepada anak syarikat MAIS untuk mengambil alih sewaan tanah/strata dari mana-mana syarikat yang sewaannya tidak disambung untuk tujuan ini scara berperingkat atau melalui pengambilalihan kepentingan syarikat sedia ada atau dengan apa-apa cara yang difikirkan sesuai.”. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 Mahkamah ini mendapati Plaintif berjaya membuktikan tuntutannya terhadap Defendan Kedua. Oleh yang demikian membenarkan tuntutan Plaintif terhadap Defendan Kedua sebagaimana pada perenggan 29.4 dan 29.5 pernyataan tuntutan dan kos sebanyak RM5000.00 dibayar oleh Defendan Kedua kepada Plaintif. [3] The Second Defendant appeal to the Court of Appeal and in its notice of appeal, the Second Defendant states − “… PANCAR BAKTI SDN BHD (NO. SYARIKAT: 2016010011906 [1172832-M]), Perayu yang dinamakan di atas, tidak berpuas hati dengan keputusan Yang Arif Pesuruhjaya Kehakiman Puan Rozi binti Bainon yang diberikan di Mahkamah Tinggi Shah Alam pada 16 haribulan Oktober 2023 dan merayu kepada Mahkamah Rayuan terhadap keseluruhan keputusan tersebut yang membenarkan tuntutan Responden ke atas Perayu seperti berikut: i. permohonan injunksi melarang Perayu daripada campurtangan dengan operasi kenikmatan aman sentosa Responden ke atas penyewaan bagi 32 tapak-tapak yang disenaraikan dalam Lampiran 1 (“32 Tapak-Tapak tersebut”); S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 ii. permohonan injunksi melarang Perayu daripada campurtangan dengan operasi perniagaan Responden di 32 Tapak-Tapak tersebut semasa tempoh Perjanjian- Perjanjian Penyewaan tersebut dan Perjanjian Penyewaan Baru tersebut termasuk melarang Perayu daripada mengambil sebarang langkah atau melakukan apa-apa yang akan memberi kesan kepada operasi infrastruktur dan peralatan Responden di 32 Tapak-Tapak tersebut; dan iii. kos sebanyak RM5000.00 dibayar oleh Perayu kepada Responden.”. [4] This judgment contains my grounds for dismissing the Plaintiff’s claims. The Parties [5] The Plaintiff is a Networks Facility Provider (NFP) where its business is operating a network of multi-operator telecommunications towers at strategic locations and providing facilities and services relating to maintenance of telecommunication towers. [6] Telco companies such as Celcom, Digi, Maxis and so on install telecommunications equipment upon the telecommunication towers built by NFPs. The towers and equipment are also operated and maintained by the NFP who charge the telco cpmpanies, who are the NFP’s clients. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 [7] The Plaintiff has identified the strategic locations to erect and install telecommunication equipment i.e. dual-function ‘menara azan’ structures at 32 Sites that is listed below. The 32 Sites are under the jurisdiction, control, purview and supervision of the First Defendant. The 32 Sites i. Surau Ampang Saujana, Ampang. ii. Surau Al-Ikhlas, Bandar Putera, Klang. iii. Surau Istiqamah, Seksyen 6, Bandar Rinching, Semenyih. iv. Surau Al-Makmur, Seksyen 4, Bandar Rinching, Semenyih. v. Surau Al-Ikhwan, Seksyen 6, Kota Damansara, Petaling Jaya. vi. Surau Al-Hidayah, Bandar Saujana Putra, Kuala Langat. vii. Surau An-Nur, Bandar Country Homes, Rawang. viii. Surau Manba’ul Huda, Bukit Rahman Putra, Sungai Buloh. ix. Surau Balai Islam, Taman Ixora, Sepang. x. Surau Al-Saadah, Taman Jelok Indah, Kajang. xi. Surau Al-Hidayah, Taman Sri Serdang, Seri Kembangan. xii. Surau Al-Amin, Bandar Tun Hussein Onn, Cheras. xiii. Surau Al-Ehsan, Taman Matang Jaya, Sungai Buloh. xiv. Masjid Sultan Hishamuddin Shah, Pekan Batu 14, Hulu Langat. xv. Surau Al-Muhajirin, Taman Seri Melor, Kajang. xvi. Surau Nurul Iman, Taman Minang, Cheras. xvii. Surau Ar-Rahman, Taman Perindustrian Puchong. xviii. Surau An-Naimah, Lorong SS7/17J, Petaling Jaya. xix. Surau Al-Ikmal, Taman Semarak, Kajang. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 xx. Sekolah Rendah Agama Sungai Sekamat, Jalan Sungai Sekamat, Kajang. xxi. Surau Al-Rahim, Seksyen 8, Bandar Baru Bangi. xxii. Surau Al-Furqan, Taman Desa Kenanga, Semenyih. xxiii. Masjid KampungTunku, Petaling Jaya. xxiv. Surau Al-Falah/KAFA Al-Aman, Puchong. xxv. Surau Al-Amin, Seksyen 18, Shah Alam. xxvi. Surau Ar-Rahman, Taman Semenyih Indah, Semenyih. xxvii. Surau Al-Muhajirin, Kampung Lanchong Jaya, Seksyen 28, Shah Alam. xxviii. Sekolah Rendah Agama Bandar Melawati, Jalan Semarak, Kuala Selangor. xxix. Madrasatul Muizzah, Kampung Bukit Raya, Hulu Langat. xxx. Surau An-Nur, Taman Sri Tanjung, Semenyih. xxxi. Sekolah Rendah Agama KAFA Integrasi Al Husna Sekolah Rendah Agama, Jalan Wawasan, Pusat Bandar Puchong. xxxii. Sekolah Rendah Agama Bukit Sentosa Fasa 1, Jalan Jenjarum, Bandar Bukit Sentosa, Rawang. [8] On identifying the strategic locations, the NFPs invest large amounts and resources of time, money and effort to locate the suitable locations. The Agreed Facts [9] The parties had signed the agreed facts that is as follows: (a) the First Defendant is the religious Islamic authority under the state of Selangor Darul Ehsan. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 (b) the Plaintiff had issued the letter dated 20-12-2013 requesting for the First Defendant’s approval to rent and erect dual- function ‘menara azan’ structures at suitable mosque and surau areas under the jurisdiction, control, purview and supervision of the First Defendant for the purposes of installing telecommunication equipment at these mosques and surau areas. (c) the First Defendant issued its letter dated 8-4-2014 to the Plaintiff which inter alia states that the documents required in every application for approval are – i. supporting letters from Surau, Masjid and Sekolah Agama which are involved. ii. details of the sites applied. iii. pictorial report. iv. plan of the relevant sites. (d) the First Defendant has issued the eviction notices dated 12- 1-2022 and 29-4-2022 to the Plaintiff for those 32 Sites. Statement of claims against the Second Defendant [10] The Plaintiff has pleaded that the Second Defendant is also an NFP and is a competitor to the Plaintiff. [11] The Second Defendant had come into the picture and the First Defendant unduly favoured. The Second Defendant was a company linked to the First Defendant and set up to maximise the First which had S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 come on board with a view to take over the Sites. The Defendants worked together to further their own interests at the detriment of the Plaintiff. [12] The Sites are strategic in that they are suitable locations for telecommunication towers. [13] The Plaintiff pleaded that – • the Defendants attempts to evict the Plaintiff and allows the Second Defendant to profit from the investments of time, money and had work poured into by the Plaintiff, with little to no time or effort on its own part. • the Second Defendant also attempted to evict the Plaintiff’s customers from the Sites and requested that the Sites’ managements instead support the Second Defendant’s entry of the Sites. • none of the Sites managements or committees support the presence of the Second Defendant presence at their Sites. They all support the Plaintiff’s presence and want to continue their tenancies with the Plaintiff. • the actions taken by the Defendants had seriously affect the Plaintiff’s business and the Plaintiff’s client’s operations, not to mention the wider public living in those areas which rely on the coverage provided by the Infrastructure and Equipment. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 The Second Defendant’s defence [14] In the defence, the Second Defendant said (reproduced in its original language) as follows: • dalam setiap masa yang material, 32 tapak (“Tapak-tapak tersebut”) yang menjadi pertikaian di dalam tindakan sini adalah tanah-tanah yang telah dirizabkan bagi kegunaan awam di mana pihak yang mempunyai kawalan mutlak terhadap tanah-tanah dan Tapak-tapak tersebut adalah Pengarah Jabatan Agama Islam Negeri Selangor (“JAIS”) dan diselenggara oleh pihak Majlis Agama Islam Selangor (“MAIS”). • perkara ini adalah bertepatan dengan peruntukan di bawah Kanun Tanah Negara dan juga Warta Kerajaan Negeri Selangor. • oleh itu, pihak yang mempunyai kuasa dan hak mutlak untuk menyewakan Tapak-tapak ini adalah JAIS sahaja di atas arahan Pengarah JAIS. • Defendan Kedua merupakan penyewa yang sah bagi tapak- tapak di bawah kawalan JAIS. Perkara ini disahkan melalui satu surat daripada MAIS bertarikh 27-4-2022 di mana MAIS telah memaklumkan kepada syarikat-syarikat telekomunikasi dan juga pembekal kemudahan-kemudahan rangkaian (Network Facilities Provider/NFP) agar syarikat-syarikat telekomunikasi dan NFP ini bekerjasama dengan Defendan S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 Kedua sebagai penyewa yang sah bagi kesemua tapak-tapak yang dikawal selia oleh pihak JAIS bermula dari 1-4-2022. • kerjasama yang dimaksudkan di atas adalah merujuk kepada proses penyerahan (handover) kesemua tapak-tapak yang berkaitan yang dahulunya diduduki (occupied) oleh syarikat- syarikat telekomunikasi dan NFP ini sebagai penyewa terdahulu yang telahpun tamat tempoh penyewaan. • intipati surat yang dikeluarkan oleh MAIS ini juga adalah bertepatan dengan titah Duli Yang Maha Mulia Sultan Selangor agar penyewaan kesemua tapak di bawah kawalan JAIS hendaklah ditawarkan dan diberikan kepada anak syarikat MAIS iaitu Defendan Kedua. • relief-relief yang dipohon oleh Plaintif di sini secara langsung berniat untuk mendesak Mahkamah ini untuk menentang titah dan seterusnya menimbulkan kemurkaan Duli Yang Maha Mulia Sultan Selangor. • selain daripada syarikat-syarikat telekomunikasi dan NFP yang sah yang mempunyai hubungan kontrak bersama JAIS (Defendan Pertama), pihak JAIS juga telah memaklumkan kepada Defendan Kedua berkenaan 32 Tapak-tapak tersebut yang telah DIDUDUKI SECARA HARAM oleh Plaintif. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 • PENDUDUKAN SECARA HARAM ini juga secara tidak langsung (impliedly) telah diakui oleh Plantif sendiri di mana tidak ada satu pun “perjanjian penyewaan” yang dimasuki oleh Plaintif adalah bersama JAIS sebagai satu-satunya pihak yang mempunyai kawalan mutlak terhadap Tapak-tapak tersebut selaras dengan peruntukan undang-undang yang relevan. • sebaliknya “perjanjian penyewaan” yang dimasuki oleh Plaintif adalah bersama pengerusi-pengerusi surau dan pihak sekolah yang jelas tidak mempunyai kapasiti dan/atau locus untuk menyewakan Tapak-tapak tersebut. • sejak JANUARI 2022 lagi, pihak Defendan Pertama telahpun mengarahkan Plaintif untuk mengosongkan Tapak-tapak tersebut yang telah diduduki SECARA HARAM oleh Plaintif. • setelah 9 BULAN dari tarikh arahan pengosongan dikeluarkan oleh Defendan Pertama, Plaintif masih kekal MENCEROBOH Tapak-tapak tersebut dan enggan mengosongkan Tapak- tapak tersebut. • laporan polis berkenaan PENCEROBOHAN Tapak-tapak tersebut oleh Plaintif telah dibuat oleh wakil Defendan Kedua pada 30-5-2022. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 • Plaintif telah memfailkan tindakan di sini dan menyalahgunakan dan memanipulasi proses Mahkamah ini untuk menafikan hak mutlak Pengarah Defendan Pertama sebagai pihak yang mempunyai kawalan sepenuhnya terhadap tanah-tanah rizab ini dan seterusnya memprejudiskan hak Defendan Kedua sebagai penyewa Tapak-tapak tersebut. • tindakan Plaintif yang jelas difailkan dengan niat tersembunyi (ulterior motive) dan menyalahgunakan proses Mahkamah ini seharusnya dan sewajarnya ditolak dan dibatalkan oleh Mahkamah ini dengan kos. PEMBELAAN SUBSTANTIF DEFENDAN KEDUA • sekitar tahun 2013, pihak Plaintif ada memohon kelulusan daripada pihak Defendan Pertama untuk menyewa dan seterusnya membina, mendirikan struktur-struktur dan seterusnya memasang peralatan telekomunikasi pada struktur-struktur tersebut yang akan didirikan di dalam kawasan-kawasan masjid dan surau yang berada di bawah bidangkuasa Pengarah Defendan Pertama. • lanjutan daripada permohonan Plaintif tersebut, Defendan Pertama telah memaklumkan kepada Plaintif bahawa, secara dasarnya, Defendan Pertama tidak mempunyai halangan berkenaan dengan permohonan Plantif tersebut. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 • namun begitu, Defendan Pertama telah mengarahkan Plaintif untuk terlebih dahulu mengemukakan permohonan kelulusan setiap tapak terlebih dahulu dan permohonan kelulusan ini perlulah disertakan dengan beberapa dokumen-dokumen sokongan seperti berikut: i. Surat sokongan daripada Masjid, surau dan/atau sekolah agama yang terlibat; ii. Butiran berkenaan tapak yang dipohon; iii. Laporan bergambar; dan iv. Pelan lokasi tapak yang dimaksudkan. • Plaintif TIDAK PERNAH MEMATUHI syarat-syarat yang dinyatakan secara spesifik oleh Defendan Pertama seperti yang dinyatakan. • sebaliknya, Plaintif dipercayai telah menggunakan surat yang dikeluarkan oleh Defendan Pertama untuk meyakinkan dan memperdaya (deceived) pengerusi-pengerusi surau dan pihak sekolah untuk memasuki “perjanjian penyewaan” secara terus bersama Plaintif untuk setiap tapak yang diingini oleh Plaintif. • memandangkan pengerusi-pengerusi surau dan pihak sekolah ini jelas tidak mempunyai sebarang kapasiti dan/atau locus untuk memasuki sebarang “perjanjian penyewaan” bagi Tapak-tapak tersebut bersama Plaintif, adalah jelas bahawa tidak terdapat sebarang perjanjian penyewaan yang sah yang telah ditandatangani di antara Plaintif dan Defendan Pertama. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 • pendudukan (occupation) dan juga struktur-struktur yang dibina oleh Plaintif di atas Tapak-tapak tersebut adalah dibina secara HARAM dan merupakan satu PENCEROBOHAN. • sebarang laporan polis yang dibuat oleh Defendan Kedua terhadap Plaintif serta notis pengusiran yang diberikan kepada pelanggan Plaintif, tidak terjumlah kepada satu campurtangan memandangkan Plaintif sendiri tidak mempunyai kapasiti yang sah untuk menduduki Tapak-tapak tersebut dan kekal sebagai PENCEROBOH. Sebaliknya, Defendan Kedua hanya menguatkuasakan haknya sebagai penyewa Tapak-tapak tersebut yang sah. • pernyataan Plaintif bahawa Plaintif kononnya terdedah kepada risiko-risiko yang substantial lanjutan daripada notis- notis pengosongan dan pengusiran yang dikeluarkan oleh Defendan-Defendan adalah masalah yang diakibatkan oleh perlakuan Plaintif sendiri (self inflicted problem). • Plaintif mempunyai pengetahuan penuh bahawa notis pengosongan telahpun dikeluarkan oleh Defendan Pertama sejak JANUARI 2022 lagi iaitu 9 BULAN dari tarikh tindakan ini difailkan. • sebarang risiko yang kerugian yang mungkin ditanggung oleh Plaintif jelas disebabkan oleh keangkuhan, kecuaian dan juga keengganan Plaintif sendiri untuk mematuhi tuntutan Defendan-Defendan sejak 9 BULAN lalu. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 • relief-relief yang dipohon oleh Plaintif di sini adalah satu perintah yang akan mencabuli (violated) dan merupakan satu campurtangan (interference) kepada hak Defendan Pertama dan Defendan Kedua masing-masing sebagai pihak yang berkuasa untuk mengawal tanah-tanah rizab dan juga PENYEWA YANG SAH Tapak-tapak tersebut. • Defendan Kedua memplidkan secara spesifik bahawa Mahkamah ini bukanlah satu forum yang akan memberikan relief lebih-lebih lagi kepada penceroboh (trespasser) apabila relief yang dipohon tersebut akan mencabuli dan merupakan satu campurtangan terhadap hak pihak ketiga dan/atau ke atas sesuatu perjanjian yang sah. • tuntutan Plaintif di sini adalah satu penyalahgunaan proses, mengaibkan, remeh dan menyusahkan. Adalah tidak masuk akal untuk Plaintif sebagai sebuah entiti yang jelas MENCEROBOH tanah-tanah rizab cuba untuk memanipulasi fungsi Mahkamah yang Mulia ini untuk memaksa Defendan Pertama, sebagai pihak yang diberi kuasa untuk mengawal selia tanah-tanah rizab, untuk mengiktiraf Plaintif sebagai penyewa Tapak-tapak tersebut dan seterusnya menafikan hak Defendan Kedua sebagai penyewa yang sah Tapak- tapak tersebut. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 Reply of defence [15] In reply, the Plaintiff has averred that – • all the engagements that the Plaintiff had with the First Defendant and with the management of the 32 Sites did not involve the Second Defendant. • the Second Defendant does not have any proprietary interest or any legally recognised interest in the 32 Sites. • MAIS’s letter dated 27-4-2022 did not state that the Second Defendant is the current and valid tenant of the 32 Sites. • matter forming the subject matter of this action is a matter concerning commercial arrangements that had been entered into by the Plaintiff and the enforcement of the Plaintiff’s right under the law. • the dispute between the Plaintiff and the First Defendant is a matter about the right to occupy and remain in occupation of the Sites, in which the Second Defendant is not a party privy to. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 Tenancy Agreement and the 32 sites [16] In the trial, the Plaintiff has produced and tendered 30 tenancy agreements, namely – Perjanjian Sewaan Antara Plf Dan Masjid/Surau/Sekolah Rendah Agama: i. Surau Al-Ikmal, Taman Semarak, Sg Chua, Kajang bertarikh 9-1-2014. Ikatan Dokumen Bersama/B muka surat 225 hingga 228. ii. Surau Al-Amin, Seksyen 18, Shah Alam bertarikh 9-1-2014. Ikatan Dokumen Bersama/B muka surat 229 hingga 232. iii. Surau Ampang Saujana, Ampang bertarikh 26-6-2014. Ikatan Dokumen Bersama/B muka surat 233 hingga 236. iv. Surau Al-Muhajirin, Kg Lanchong Jaya, Seksyen 28, Shah Alam bertarikh 30-6-2014. Ikatan Dokumen Bersama/B muka surat 237 hingga 240. v. Surau Al-Ehsan, Taman Matang Jaya, Sungai Buluh bertarikh 16-1-2015. Ikatan Dokumen Bersama/B muka surat 241 hingga 244. vi. Masjid Kg Tunku, Petaling Jaya bertarikh 6-4-2015. Ikatan Dokumen Bersama/B muka surat 245 hingga 248. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 vii. Surau Ar-Rahman, Taman Perindustrian Puchong, Puchong bertarikh 6-4-2015. Ikatan Dokumen Bersama/B muka surat 249 hingga 252. viii. Masjid Sultan Hishamuddin Alam Shah, Pekan Batu 14, Hulu Langat bertarikh 14-4-2015. Ikatan Dokumen Bersama/B muka surat 253 hingga 256. ix. KAFA Integrasi Al Husna, Jalan Wawasan, Pusat Bandar Puchong bertarikh 15-7-2015. Ikatan Dokumen Bersama/B muka surat 257 hingga 260. x. Surau Al-Furqan, Semenyih bertarikh 15-7-2015. Ikatan Dokumen Bersama/B muka surat 261 hingga 264. xi. KAFA Integrasi Al Aman, Jalan Jurutera, Kg Sri Aman, Puchong bertarikh 5-9-2015. Ikatan Dokumen Bersama/B muka surat 266 hingga 269. xii. Surau Al-Ikhwan, Taman Seksyen 6, Kota Damansara bertarikh 6-1-2016. Ikatan Dokumen Bersama/B muka surat 270 hingga 273. xiii. Surau Istiqamah, Seksyen 6, Bandar Rinching, Semenyih bertarikh 10-2-2016. Ikatan Dokumen Bersama/B muka surat 274 hingga 277. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 xiv. Surau Al-Makmur, Seksyen 4, Bandar Rinching, Semenyih bertarikh 10-2-2016. Ikatan Dokumen Bersama/B muka surat 278 hingga 281. xv. Surau An-Nur, Seksyen 4, Bandar Country Homes, Taman Desa, Bandar Country Homes, Rawang bertarikh 10-2-2016. Ikatan Dokumen Bersama/B muka surat 282 hingga 286. xvi. Surau Al-Amin, Taman Tun Hussin Onn, Cheras bertarikh 10- 2-2016. Ikatan Dokumen Bersama/B muka surat 287 hingga 290. xvii. Surau Nurul Iman, Taman Minang, Cheras bertarikh 10-2- 2016. Ikatan Dokumen Bersama/B muka surat 292 hingga 295. xviii. Sekolah Rendah Agama Bandar Melawati, Jalan Semarak, Kuala Selangor bertarikh 10-2-2016. Ikatan Dokumen Bersama/B muka surat 296 hingga 299. xix. Surau Muizzah, Bukit Raya, Batu 10, Jalan Hulu Langat bertarikh 10-2-2016. Ikatan Dokumen Bersama/B muka surat 300 hingga 303. xx. Surau An-Nur, Jalan Sri Tanjung, Semenyih bertarikh 10-2- 2016. Ikatan Dokumen Bersama/B muka surat 304. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 xxi. Surau Ar-Rahman, Taman Semenyih Indah, Semenyih bertarikh 10-2-2016. Ikatan Dokumen Bersama/B muka surat 305 hingga 308. xxii. Surau Al-Hidayah, Selayang bertarikh 10-2-2016. Ikatan Dokumen Bersama/B muka surat 309 hingga 312. xxiii. Surau Balai Islam, Taman Ixora, Bandar Baru Salak Tinggi, Sepang bertarikh 16-2-2016. Ikatan Dokumen Bersama/B muka surat 313 hingga 316. xxiv. Surau Al-Muhajirin, Jalan Melor 6, Taman Seri Melor, Kajang bertarikh 24-2-2016. Ikatan Dokumen Bersama/B muka surat 317 hingga 320. xxv. Sekolah Rendah Agama Bukit Sentosa, Fasa 1, Bukit Beruntung bertarikh 16-3-2016. Ikatan Dokumen Bersama/B muka surat 321 hingga 324. xxvi. Madrasah An-Na’imah, Taman Sri Kelana Jaya, Petaling Jaya bertarikh 12-4-2016. Ikatan Dokumen Bersama/B muka surat 325 hingga 333. xxvii. Surau Al-Hidayah, Bandar Saujana Putra, Puchong bertarikh 4-5-2016. Ikatan Dokumen Bersama/B muka surat 334 hingga 337. xxviii. Surau As Sa’adah, Taman Jelok Indah, Kajang bertarikh 4-5- 2016. Ikatan Dokumen Bersama/B muka surat 338 hingga 341. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 xxix. Surau Manba’ul Huda, Bukit Rahman Putra, Sungai Buluh bertarikh 8-6-2016. Ikatan Dokumen Bersama/B muka surat 342 hingga 345. xxx. Surau Ar-Rahim, Bandar Baru Bangi bertarikh 27-6-2016. Ikatan Dokumen Bersama/B muka surat 346 hingga 349. [17] Another 2 tenancy agreements is in the form of Plaintiff’s letter to these 2 Surau and Sekolah Rendah Agama − i. Surau Al-Ikhlas, Bandar Putera, Klang bertarikh 21-4-2016. Ikatan Dokumen Bersama/B muka surat 350. Surat Plf bertarikh 8-7-2022. Ikatan Dokumen Bersama/B muka surat 350. ii. Sekolah Rendah Agama Sungai Sekamat, Jalan Sungai Sekamat, Kajang bertarikh 15-2-2018. Ikatan Dokumen Bersama/B muka surat 350. Surat Plf tiada tarikh. Ikatan Dokumen Bersama/B muka surat 351. [18] The terms stipulated in the tenancy agreements are and about similar to one and another, where − Terma sewaan: • the monthly rental is RM2000.00 and/or RM3500.00 and/or RM1000.00. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 • the tenure of the rental of the Sites is for 15 tahun and/or 7tahun + 8 tahun where the management of the Sites (Surau/Masjid/Sekolah Rendah Agama) allows the Plaintiff to remain its telecommunications equipment and the Plaintiff has agreed to add/increase the monthly rental in k 5% for every 3 years or any additional as stipulated in the agreement. • the payment of the rental is paid directly to the relevant Masjid/Surau/Madrasah/Sekolah Rendah Agama. Consent judgement entered by the Plaintiff and the First Defendant [19] The terms as agreed between the Plaintiff and the First Defendant are – “PENGHAKIMAN PERSETUJUAN TINDAKAN INI telah dibicarakan di hadapan Yang Arif Puan Rozi binti Bainon pada 24 dan 25 Ogos 2023 DAN ATAS PERMOHONAN Plaintif dan Defendan Pertama dipanggil untuk sebutan pada hari ini DALAM KEHADIRAN Josephine Tiew Yenn, peguam bagi Plaintif dan Nurul Izzah binti Abdul Mutalib, Penolong Penasihat Undang-Undang bagi Defendan Pertama MAKA ADALAH DIPERINTAHKAN SECARA PERSETUJUAN di antara Plaintif dan Defendan Pertama bahawa: S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 1. Plaintif dan Defendan Pertama akan memasuki perjanjian penyewaan bagi 34 Tapak yang disenaraikan di Lampiran 1 (“Tapak-Tapak”) atas terma-terma yang akan dipersetujui di antara Plaintif dan Defendan Pertama, termasuk tetapi tidak terhad kepada terma-terma berikut: a. Tempoh sewaan selama tiga (3) tahun dari tarikh perjanjian ditandatangani. b. Sewaan sebanyak RM3,000.00 sebulan bagi setiap satu Tapak-Tapak tersebut. 2. Perjanjian-perjanjian sedia ada yang dimasuki oleh Plaintif dengan pihak-pihak pengurusan Tapak-Tapak dikekalkan sehingga perjanjian yang tersebut di dalam perenggan 1 di atas dimuktamadkan. 3. Selain daripada yang berasal daripada terma-terma yang diperuntukkan di perenggan 1 dan 2 di atas, Plaintif dan Defendan Pertama tidak mempunyai sebarang tuntutan di antara satu sama lain berkaitan dengan Tapak-Tapak tersebut. 4. Plaintif membayar Defendan Pertama RM10,000.00 sebagai kos bagi tindakan ini. Bertarikh pada 16 Oktober 2023.”. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 The Law Burden of proof: [20] In Pernec Ebiz Sdn Bhd v. CCI Technology Sdn Bhd & Ors [2015] 2 MLJ 117, the Court of Appeal held − “Even though the burden upon a plaintiff in a civil suit is only to prove its case upon a balance of probabilities, it must present its case sufficiently clearly to do so. It cannot merely file pleadings, file bundles of documents, proceed to trial, call witnesses to testify and argue on the various issue and expect the court to make out the case on its own for one party or other. … Where the party upon whom the burden of proving its case lies fails to do so, it fails to prove its case and its action must be dismissed.”. [21] Lord Goddard in Bonham-Carter v. Hyde Park Hotel Ltd 64 TLR 177 at p. 178 held− “… 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 the particulars, so to speak, throw them at the head of the court, saying: ‘This is what I have lost, I ask you to give me these damages’. They have to prove it.”. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 [22] The well-established principle that the burden of proof at all times is borne by the Plaintiff on the balance of probabilities to establish his case against the Defendant/s or the existence of a legally enforceable claim against the Defendant/s. It is upon the Plaintiff, and certainly not the Defendant, to discharge that burden. It is for the Plaintiff to prove his case and satisfy the court that his claim is well-founded before the court can grant judgment on his claim. Findings of The Court [23] In the 2 days trial, I have listened carefully on the testimony by the witnesses called i.e. – for the Plaintiff: Suresh A/L Superamaniam, Director of Plaintiff (SP- 1), Aris Bin Abdul Samad, technician (SP-2) and Musanin bin Min, chairman of Surau (SP-3). for the First Defendant: Mohd Hafiz Bin Ahmad, Penolong Pegawai Tadbir at JAIS (SD-1). for the Second Defendant: Mohd Solihin Bin Tasman, Chief Operating Officer at the Second Defendant (SD-2). [24] In evaluating the evidences after the trial, I find that out of the 32 Sites as claimed by the Plaintiff, there are 10 letters of offer sent by the First Defendant to the Second Defendant that involved the following Surau and Sekolah Rendah Agama where the tenancy agreements still in force between the Plaintiff and the management of that Surau and Sekolah Rendah Agama: S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 i. Surau Al-Ikhlas, Bandar Putera, Klang ii. Surau Al-Ikhwan, Kota Damansara, Petaling Jaya iii. Surau Istiqamah, Seksyen 6, Bandar Rinching, Semenyih iv. Surau An-Nur, Bandar Country Homes, Rawang v. Surau Al-Ehsan, Taman Matang Jaya, Sungai Buloh vi. Sekolah Rendah Agama Sungai Sekamat, Jalan Sungai Sekamat, Kajang vii. Surau Al-Amin, Seksyen 18, Shah Alam viii. Surau Ampang Saujana, Ampang ix. Surau Al-Makmur, Bandar Rinching, Semenyih x. Surau Al-Hidayah, Bandar Saujana Putra, Kuala Langat [25] I have also read titah D.Y.M.M Sultan Selangor to the First Defendant Re: “Tawaran Secara Keutamaan (First Right of Refusal) kepada Anak Syarikat Majlis Agama Islam Selangor (MAIS) bagi Sewaan Tanah/Strata di bawah Kawalan Pengarah Jabatan Agama Islam Selangor (JAIS) untuk Tujuan Pembinaan Struktur Menara Telekomunikasi” that is clear in its meaning – “Perenggan 2 surat menyatakan bahawa D.Y.M.M Sultan Selangor menitahkan agar D1 memberikan tawaran secara keutamaan (First Right Refusal) bagi sewaan tanah/strata kepada anak syarikat MAIS untuk mengambil alih sewaan tanah/strata dari mana-mana syarikat yang sewaannya tidak disambung untuk tujuan ini secara berperingkat atau melalui pengambilalihan kepentingan syarikat sedia ada atau dengan apa-apa cara yang difikirkan sesuai.”. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 [26] The learned counsel for the Second Defendant submits that − “25. The said MAIS Letter is also a reflection of the decree by His Royal Highness the Sultan of Selangor in which His Royal Highness has commanded that MAIS’ subsidiary and related company shall be given first right of refusal on any sites controlled by JAIS.”. [27] This Court is puzzled why the learned counsel for the Second Defendant ignored the words “menitahkan agar D1 memberikan tawaran secara keutamaan (First Right Refusal) bagi sewaan tanah/strata kepada anak syarikat MAIS untuk mengambil alih sewaan tanah/strata dari mana- mana syarikat yang sewaannya tidak disambung untuk tujuan ini secara berperingkat atau melalui pengambilalihan kepentingan syarikat sedia ada atau dengan apa-apa cara yang difikirkan sesuai.”. [28] If the interpretation of the underlined words are wrong, the Second Defendant must call the writer of that letter to explain the meaning of the underlined words. [29] Based on the tenancy agreements the tenure for the rent is 15 year from the date of each of the tenancy agreements as referred by the Plaintiff in the trial. There is no new tenancy agreement been referred to in the trial. [30] The consent judgment entered between the Plaintiff and the First Defendant has agreed and solved the issues raised by them and also material matters to the case against the Second Defendant. The agreed terms are that – S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 (a) the Plaintiff and the First Defendant will enter into tenancy agreements for the 34 Sites as listed on the agreed terms by them. (b) the existing agreements that the Plaintiff has entered into with the management of the Sites are still valid, subsisting, enforceable and binding until the tenancy agreement to be entered by the Plaintiff and the First Defendant be finalized. (c) other than the terms as agreed in the consent judgment, there are no claims against the Plaintiff and the Defendant relating to the Sites. [31] With that, this Court is correct in deciding that the Plaintiff and the First Defendant had settled their disputes pertaining to – (a) instructions/directions made by the First Defendant and/or any of the local authority as regards to the specification to erect/install the Plaintiff’s Infrastructure and Equipment at the Sites in accordance to the relevant laws such as Akta Jalan, Parit dan Bangunan 1974. (b) there are no more issues pertaining to – • Whether the Impugned Tenancies entered between the Plaintiff and the management of the 32 sites are valid and binding towards the First Defendant? • Whether the doctrine of estoppel is applicable in favor of the Plaintiff? S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 • Whether the Second Defendant is the lawful tenant in relation to the 10 sites? • If the answer to the above is in affirmative, whether the 2nd Defendant is legally entitled to evict the Plaintiff from the 10 sites? [32] The learned counsel for the Second Defendant submits that “Based on this evidence given by the Plaintiff’s own witness, it is crystal clear that the Plaintiff has indeed manipulated the 1st Defendant’s Letter to deceive and hoodwink the management of the said 32 sites to enter into tenancy agreements with the Plaintiff under the pretext that consent has been given by the 1st Defendant.”. I disagree. There is no deceive nor manipulation done by the Plaintiff, but it is caused by the poor management and supervision by the First Defendant. [33] The management of the 32 Sites had benefitted by receiving the rental payments from the Plaintiff. The money received is for the Masjid/Surau/Madrasah/Sekolah Rendah Agama/KAFA Integrasi to do its operation and management. That is lawful and valid. [34] When the consent judgment entered between the Plaintiff and the First Defendant, it is up to the First Defendant to deal with the Second Defendant pertaining to the letters of offer and/or tenancy agreements for the 10 Sites. By the way, the titah D.Y.M.M Sultan Selangor to the First Defendant is an instruction that the Second Defendant should not take over the 10 Sites since the tenancy agreements between the Plaintiff and the 10 Sites are still valid and enforceable. This Court also under S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 impression that the consent judgment is so welcome because that is the correct interpretation of the titah. [35] The action taken by the Second Defendant as the Second Defendant claimed that it is the lawful tenant of the 10 Sites and therefore has the right to evict the Plaintiff is totally collapsed immediately after the consent judgment been entered between the Plaintiff and the First Defendant. The tenancy agreement of the 10 Sites are still exist, subsisting, enforceable and binding. The Plaintiff is the right tenant for the 10 Sites. [36] The learned counsel for the Second Defendant’s submission that – “82. Being the LAWFUL TENANT, the 2nd Defendant humbly submits that the 2nd Defendant is armed with exclusive possession over the 10 sites and legally entitled to evict a trespasser.” ... 96. In view of the above and the 10 Tenancy Agreements executed between the 2nd Defendant and the proper Controlling Officer over the 10 sites, the 2nd Defendant humbly submits that the 2nd Defendant is indeed a prima facie lawful tenant of the 10 sites. 97. Being a lawful tenant, it is the 2nd Defendant legal rights and entitlement to lodge police report against the Plaintiff for the trespass and subsequently to evict the Plaintiff from the 10 sites. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 98. In fact, the 2nd Defendant’s right to evict the Plaintiff being trespasser is duly admitted by the Plaintiff’s own witness, PSP-1, during cross examination.”. (emphasis added), I disagree. [37] Thus, the Plaintiff is entitle to seek the relief to injunct the Second Defendant, who is not being LAWFUL TENANT, from evicting the Plaintiff, being trespasser. The case cited by the learned counsel for the Second Defendant in Sidek Bin Haji Muhamad & 461 Ors V The Government Of The State Of Perak & Ors [1982] 1 MLJ 313 is not applicable here. [38] In the trial, the Plaintiff has proved that its claims for the declaratory and injunctive reliefs is centred on the Tenancy Agreements that is valid, subsisting and binding upon the First Defendant. [39] Even though before the trial begins, the issue that the management of the 32 Sites is not the correct party and/or should not enter the tenancy agreements are all resolved when the First Defendant has agreed “to sit down” with the Plaintiff to revetting, redo etc with the tenancy agreements. [40] Therefore, determination of this core issue leads to the entitlement to reliefs. This Court finds that the tenancies and occupancies by the Plaintiff on the Sites are lawful and valid, then the reliefs sought by the Plaintiff (which are purely declaratory and injunctive in nature) are granted. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 [41] The Plaintiff as the lawful tenant for the 32 Sites is entitle to seek an injunction prohibiting the Second Defendant from – • interfering with the the Tenancy Agreements. • taking any steps or doing anything that will affect Infrastructure and Equipment at these 32 sites. • issuing notice of eviction of the same nature or upon the same ground. • interfering with the Plaintiff’s peaceful enjoyment of its tenancies for the 32 sites. • interfering with the Plaintiff’s business operation at the 32 Sites during the term of the Tenancy Agreements including prohibiting the Second Defendant from taking any steps or doing anything that will affect the operation of the Plaintiff’s Infrastructure and Equipment at the 32 Sites. [42] The Plaintiff avers that the Second Defendant is actually a competing company. The Second Defendant is a company linked to the First Defendant. So far from the evidence before me, the documents had showed that the Second Defendant had detriment the Plaintiff’ business. [43] The First Defendant has offered and later the Second Defendant has signed the tenancy agreement for the 10 Sites that already occupied via tenancy agreements between the Plaintiff and the management of the Surau/Sekolah Rendah Agama. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 [44] The Plaintiff has tendered documentary evidence that the Infrastructure and Equipment at the Sites requires investment of substantial amounts of money. A tower alone costs RM100,000.00 to RM200,000.00 just to build. [45] This Court agrees with the Plaintiff any attempts to evict the Plaintiff and allows the Second Defendant to profit from the investments of time, money and had work poured into by the Plaintiff, with little to no time or effort on its own part. The location of the 10 Sites as claimed by the Second Defendant as the lawful tenant is indeed belong to the Plaintiff who found the 10 Sites. [46] The payments of the rental by the Plaintiff as the tenant to the bank accounts of the Masjid/Surau/Sekolah Rendah Agama are based on the subsisting tenancy agreements and it have been done the contract is for few years more to go/expires. [47] This Court recognized the presence of the Second Defendant as the company that related to the First Defendant. However, the fact that the Second Defendant has the similar business liked the Plaintiff, the Second Defendant is the lawful tenant and the Second Defendant has the right and power to evict the Plaintiff just because the Tenancy Agreement are invalid are all gone when the consent judgment entered between tha Plaintiff and the First Defendant. Further to say, the “special letter” from the Istana Negeri Selangor is enough to say that the First Defendant should not caused any injustice to the Plaintiff who is the lawful tenant under the Tenancy Agreements. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 36 [48] The Plaintiff is subject to the requirements under the laws to ensure that its Infrastructure and Equipment at the Sites must comply with the First Defendant and the local authority guidelines. [49] The Plaintiff has initiated this Suit against the two Defendants when it is clear that the steps and action taken by the Defendants had truly affect the Plaintiff’s business and the risks suffered by the Plaintiff are no an illusion. The notices to evict the Plaintiff are not due to the Plaintiff’s self inflicted problem. The risks are coming and started from the First Defendant and/or the Second Defendant themselves. [50] In determining the claims against the Second Defendant by looking strictly on the consent judgement entered between the Plaintiff and the First Defendant, my decisions are that – (a) the Tenancy Agreements are valid, subsisting and binding until their stated expiry dates. (b) the eviction notices should not be executed. (c) the 10 Sites offered and/or already signed the Tenancy Agreements between the First Defendant and the Second Defendant is for these 2 parties to solve. (d) the Second Defendant is injunct from interfering with the Plaintiff’s peaceful enjoyment of the tenancies for the 32 Sites. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 37 (e) the Second Defendant is injunct from interfering with the Plaintiff’s business operation at the 32 Sites until their stated expiry dates. And I allowed order for costs in the sum of RM5000.00. Conclusion [51] In view of the foregoing reasons, I find that the Plaintiff had successfully on a balance of probability in demonstrating that the Plaintiff is not a trespasser. The Plaintiff is entitled to seek from this Court an injunction to restrain the Second Defendant from repossessing the 10 Sites. [52] There are valid Tenancy Agreements exists between the Plaintiff and the First Defendant. [53] As long as the Tenancy Agreement for the 10 Sites still binding on the Plaintiff, the Second Defendant cannot claim to be the lawful tenant pertaining to the 10 sites; and is legally authorized and empowered to evict the Plaintiff from the said 10 sites accordingly. [54] The Second Defendant must patietly wait till the Tenancy Agreement expires and I would like to repeat titah D.Y.M.M Sultan Selangor to the First Defendant that – “Perenggan 2 surat menyatakan bahawa D.Y.M.M Sultan Selangor menitahkan agar D1 memberikan tawaran secara keutamaan (First Right Refusal) bagi sewaan tanah/strata S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 38 kepada anak syarikat MAIS untuk mengambil alih sewaan tanah/strata dari mana-mana syarikat yang sewaannya tidak disambung untuk tujuan ini scara berperingkat atau melalui pengambilalihan kepentingan syarikat sedia ada atau dengan apa-apa cara yang difikirkan sesuai.”. Dated: 23 November 2023. RoziBainon ( ROZI BINTI BAINON ) Judicial Commissioner Shah Alam High Court NCvC12 Counsels: For the Plaintiff: Joshua Chong Wan Ken together with Josephine Tiew Yenn & Chon Yi Ning Tetuan Raja, Darryl & Loh, Kuala Lumpur. For the First Defendant: Nurul Izzah binti Abdul Mutalib Pejabat Penasihat Undang-Undang Negeri Selangor, Shah Alam. For the Second Defendant: Nik Mohamad Syakhir bin Mohd Yasin Tetuan Zain Megat & Murad, Kuala Lumpur. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

BA-22NCvC-324-08/2022

PLAINTIF OMNIX (M) SDN BHD DEFENDAN 1. ) JABATAN AGAMA ISLAM SELANGOR 2. ) PANCAR BAKTI SDN BHD

CONTRACT: Tenancy Agreement – Whether the Tenancy Agreements between the Plaintiff and the 32 managements of Masjid/Surau/Sekolah Rendah Agama/KAFA Integrasi are duly authorize, valid, binding and enforceable? – The Plaintiff has performed its obligations under the Tenancy Agreements – Whether the letter of offers and the tenancy agreements signed by the Defendants had caused detriment and risk to the Plaintiff? – The effect of the letter from Sultan of Selangor – Consent Judgment – Whether the Second Defendant is interfering unlawfully to the Plaintiff’s peaceful enjoyment of its tenancies and interfering with the Plaintiff’s business operation?

23/11/2023

YA Puan Rozi Binti Bainon

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=accd8048-9f13-4527-9499-4c153eff646a&Inline=true

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN (BAHAGIAN SIVIL) GUAMAN SIVIL NO.: BA-22NCvC-324-08/2022 ANTARA OMNIX (M) SDN BHD (NO. SYARIKAT: 201101034429 [962562-X]) – PLAINTIF DAN 1. JABATAN AGAMA ISLAM SELANGOR 2. PANCAR BAKTI SDN BHD (NO. SYARIKAT: 201601001906 [1172832-M]) – DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] The Plaintiff’s claims against the Defendants are for – • a declaration that the tenancy agreements entered into pursuant to the arrangements made between the Plaintiff and the 32 sites of Surau, Sekolah Rendah Agama, Masjid, Madrasah and KAFA Integrasi are valid, binding on and enforceable against the First Defendant. 23/11/2023 13:38:15 BA-22NCvC-324-08/2022 Kand. 105 S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 • an order that the First Defendant shall adhere to and comply with the terms of the tenancy agreements. • an order that the First Defendant retract its notices of eviction and a further order restraining the First Defendant from issuing notice of eviction. • an injunction prohibiting the Defendants from interfering with the Plaintiff’s peaceful enjoyment of its tenancies at the 32 sites of Surau, Sekolah Rendah Agama, Masjid, Madrasah and KAFA Integrasi. • an injunction prohibiting the Defendants from interfering with the Plaintiff’s business operation at the 32 sites of Surau, Sekolah Rendah Agama, Masjid, Madrasah and KAFA Integrasi including prohibiting the Defendants from taking any steps or doing anything that will affect the operation of the Plaintiff’s Infrastructure and Equipment at the 32 sites. [2] After hearing this Suit in a full trial proceeding, in the eve of my decision on 16-10-2023, the Plaintiff and the First Defendant has agreed to enter a consent judgment with the agreed terms of settlement. Therefore, I have decided the claims between the Plaintiff against the Second Defendant where I have allowed the Plaintiff’s claims with costs (subject to allocator fee) and my grounds of decision (in Bahasa) is as follows: S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 KEPUTUSAN SELEPAS PERBICARAAN PENUH Permohonan Defendan Kedua (D2) untuk menyewa tapak: Ikatan Dokumen Bersama/B muka surat 170 hingga 215 di mana surat Defendan Pertama (D1) kepada D2 mengenai permohonan D2 untuk menyewa tapak struktur menara telekomunikasi di 9 buah Surau dan sebuah Sekolah Rendah Agama bagi tempoh 3 tahun dengan kadar bayaran RM3000.00 sebulan tertakluk kepada syarat yang ditentukan dalam perenggan 3 surat tersebut. Terma sewaan & Surat Setuju Terima Tawaran ditandatangani & dilampirkan dalam surat tersebut. Terma sewaan: • bayaran sewa bulanan ialah RM3000.00. • wang sewaan dibayar kepada Tabung Infak Jariah Umat Islam Selangor (TIJARI). Mahkamah ini mendapati 10 tawaran sewaan yang diberikan oleh D1 kepada D2 adalah melibatkan Surau dan Sekolah Rendah Agama yang berikut adalah Surau dan Sekolah Rendah Agama yang perjanjian sewaan masih berkuatkuasa antara Plf dengan pihak Surau dan Sekolah Rendah Agama tersebut: i. Surau Al-Ikhlas, Bandar Putera, Klang ii. Surau Al-Ikhwan, Kota Damansara, Petaling Jaya iii. Surau Istiqamah, Seksyen 6, Bandar Rinching, Semenyih S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 iv. Surau An-Nur, Bandar Country Homes, Rawang v. Surau Al-Ehsan, Taman Matang Jaya, Sungai Buloh vi. Sekolah Rendah Agama Sungai Sekamat, Jalan Sungai Sekamat, Kajang vii. Surau Al-Amin, Seksyen 18, Shah Alam viii. Surau Ampang Saujana, Ampang ix. Surau Al-Makmur, Bandar Rinching, Semenyih x. Surau Al-Hidayah, Bandar Saujana Putra, Kuala Langat Mahkamah ini telah meneliti titah D.Y.M.M Sultan Selangor kepada D1 bertajuk “Tawaran Secara Keutamaan (First Right of Refusal) kepada Anak Syarikat Majlis Agama Islam Selangor (MAIS) bagi Sewaan Tanah/Strata di bawah Kawalan Pengarah Jabatan Agama Islam Selangor (JAIS) untuk Tujuan Pembinaan Struktur Menara Telekomunikasi” yang jelas maksudnya iaitu – “Perenggan 2 surat menyatakan bahawa D.Y.M.M Sultan Selangor menitahkan agar D1 memberikan tawaran secara keutamaan (First Right Refusal) bagi sewaan tanah/strata kepada anak syarikat MAIS untuk mengambil alih sewaan tanah/strata dari mana-mana syarikat yang sewaannya tidak disambung untuk tujuan ini scara berperingkat atau melalui pengambilalihan kepentingan syarikat sedia ada atau dengan apa-apa cara yang difikirkan sesuai.”. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 Mahkamah ini mendapati Plaintif berjaya membuktikan tuntutannya terhadap Defendan Kedua. Oleh yang demikian membenarkan tuntutan Plaintif terhadap Defendan Kedua sebagaimana pada perenggan 29.4 dan 29.5 pernyataan tuntutan dan kos sebanyak RM5000.00 dibayar oleh Defendan Kedua kepada Plaintif. [3] The Second Defendant appeal to the Court of Appeal and in its notice of appeal, the Second Defendant states − “… PANCAR BAKTI SDN BHD (NO. SYARIKAT: 2016010011906 [1172832-M]), Perayu yang dinamakan di atas, tidak berpuas hati dengan keputusan Yang Arif Pesuruhjaya Kehakiman Puan Rozi binti Bainon yang diberikan di Mahkamah Tinggi Shah Alam pada 16 haribulan Oktober 2023 dan merayu kepada Mahkamah Rayuan terhadap keseluruhan keputusan tersebut yang membenarkan tuntutan Responden ke atas Perayu seperti berikut: i. permohonan injunksi melarang Perayu daripada campurtangan dengan operasi kenikmatan aman sentosa Responden ke atas penyewaan bagi 32 tapak-tapak yang disenaraikan dalam Lampiran 1 (“32 Tapak-Tapak tersebut”); S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 ii. permohonan injunksi melarang Perayu daripada campurtangan dengan operasi perniagaan Responden di 32 Tapak-Tapak tersebut semasa tempoh Perjanjian- Perjanjian Penyewaan tersebut dan Perjanjian Penyewaan Baru tersebut termasuk melarang Perayu daripada mengambil sebarang langkah atau melakukan apa-apa yang akan memberi kesan kepada operasi infrastruktur dan peralatan Responden di 32 Tapak-Tapak tersebut; dan iii. kos sebanyak RM5000.00 dibayar oleh Perayu kepada Responden.”. [4] This judgment contains my grounds for dismissing the Plaintiff’s claims. The Parties [5] The Plaintiff is a Networks Facility Provider (NFP) where its business is operating a network of multi-operator telecommunications towers at strategic locations and providing facilities and services relating to maintenance of telecommunication towers. [6] Telco companies such as Celcom, Digi, Maxis and so on install telecommunications equipment upon the telecommunication towers built by NFPs. The towers and equipment are also operated and maintained by the NFP who charge the telco cpmpanies, who are the NFP’s clients. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 [7] The Plaintiff has identified the strategic locations to erect and install telecommunication equipment i.e. dual-function ‘menara azan’ structures at 32 Sites that is listed below. The 32 Sites are under the jurisdiction, control, purview and supervision of the First Defendant. The 32 Sites i. Surau Ampang Saujana, Ampang. ii. Surau Al-Ikhlas, Bandar Putera, Klang. iii. Surau Istiqamah, Seksyen 6, Bandar Rinching, Semenyih. iv. Surau Al-Makmur, Seksyen 4, Bandar Rinching, Semenyih. v. Surau Al-Ikhwan, Seksyen 6, Kota Damansara, Petaling Jaya. vi. Surau Al-Hidayah, Bandar Saujana Putra, Kuala Langat. vii. Surau An-Nur, Bandar Country Homes, Rawang. viii. Surau Manba’ul Huda, Bukit Rahman Putra, Sungai Buloh. ix. Surau Balai Islam, Taman Ixora, Sepang. x. Surau Al-Saadah, Taman Jelok Indah, Kajang. xi. Surau Al-Hidayah, Taman Sri Serdang, Seri Kembangan. xii. Surau Al-Amin, Bandar Tun Hussein Onn, Cheras. xiii. Surau Al-Ehsan, Taman Matang Jaya, Sungai Buloh. xiv. Masjid Sultan Hishamuddin Shah, Pekan Batu 14, Hulu Langat. xv. Surau Al-Muhajirin, Taman Seri Melor, Kajang. xvi. Surau Nurul Iman, Taman Minang, Cheras. xvii. Surau Ar-Rahman, Taman Perindustrian Puchong. xviii. Surau An-Naimah, Lorong SS7/17J, Petaling Jaya. xix. Surau Al-Ikmal, Taman Semarak, Kajang. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 xx. Sekolah Rendah Agama Sungai Sekamat, Jalan Sungai Sekamat, Kajang. xxi. Surau Al-Rahim, Seksyen 8, Bandar Baru Bangi. xxii. Surau Al-Furqan, Taman Desa Kenanga, Semenyih. xxiii. Masjid KampungTunku, Petaling Jaya. xxiv. Surau Al-Falah/KAFA Al-Aman, Puchong. xxv. Surau Al-Amin, Seksyen 18, Shah Alam. xxvi. Surau Ar-Rahman, Taman Semenyih Indah, Semenyih. xxvii. Surau Al-Muhajirin, Kampung Lanchong Jaya, Seksyen 28, Shah Alam. xxviii. Sekolah Rendah Agama Bandar Melawati, Jalan Semarak, Kuala Selangor. xxix. Madrasatul Muizzah, Kampung Bukit Raya, Hulu Langat. xxx. Surau An-Nur, Taman Sri Tanjung, Semenyih. xxxi. Sekolah Rendah Agama KAFA Integrasi Al Husna Sekolah Rendah Agama, Jalan Wawasan, Pusat Bandar Puchong. xxxii. Sekolah Rendah Agama Bukit Sentosa Fasa 1, Jalan Jenjarum, Bandar Bukit Sentosa, Rawang. [8] On identifying the strategic locations, the NFPs invest large amounts and resources of time, money and effort to locate the suitable locations. The Agreed Facts [9] The parties had signed the agreed facts that is as follows: (a) the First Defendant is the religious Islamic authority under the state of Selangor Darul Ehsan. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 (b) the Plaintiff had issued the letter dated 20-12-2013 requesting for the First Defendant’s approval to rent and erect dual- function ‘menara azan’ structures at suitable mosque and surau areas under the jurisdiction, control, purview and supervision of the First Defendant for the purposes of installing telecommunication equipment at these mosques and surau areas. (c) the First Defendant issued its letter dated 8-4-2014 to the Plaintiff which inter alia states that the documents required in every application for approval are – i. supporting letters from Surau, Masjid and Sekolah Agama which are involved. ii. details of the sites applied. iii. pictorial report. iv. plan of the relevant sites. (d) the First Defendant has issued the eviction notices dated 12- 1-2022 and 29-4-2022 to the Plaintiff for those 32 Sites. Statement of claims against the Second Defendant [10] The Plaintiff has pleaded that the Second Defendant is also an NFP and is a competitor to the Plaintiff. [11] The Second Defendant had come into the picture and the First Defendant unduly favoured. The Second Defendant was a company linked to the First Defendant and set up to maximise the First which had S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 come on board with a view to take over the Sites. The Defendants worked together to further their own interests at the detriment of the Plaintiff. [12] The Sites are strategic in that they are suitable locations for telecommunication towers. [13] The Plaintiff pleaded that – • the Defendants attempts to evict the Plaintiff and allows the Second Defendant to profit from the investments of time, money and had work poured into by the Plaintiff, with little to no time or effort on its own part. • the Second Defendant also attempted to evict the Plaintiff’s customers from the Sites and requested that the Sites’ managements instead support the Second Defendant’s entry of the Sites. • none of the Sites managements or committees support the presence of the Second Defendant presence at their Sites. They all support the Plaintiff’s presence and want to continue their tenancies with the Plaintiff. • the actions taken by the Defendants had seriously affect the Plaintiff’s business and the Plaintiff’s client’s operations, not to mention the wider public living in those areas which rely on the coverage provided by the Infrastructure and Equipment. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 The Second Defendant’s defence [14] In the defence, the Second Defendant said (reproduced in its original language) as follows: • dalam setiap masa yang material, 32 tapak (“Tapak-tapak tersebut”) yang menjadi pertikaian di dalam tindakan sini adalah tanah-tanah yang telah dirizabkan bagi kegunaan awam di mana pihak yang mempunyai kawalan mutlak terhadap tanah-tanah dan Tapak-tapak tersebut adalah Pengarah Jabatan Agama Islam Negeri Selangor (“JAIS”) dan diselenggara oleh pihak Majlis Agama Islam Selangor (“MAIS”). • perkara ini adalah bertepatan dengan peruntukan di bawah Kanun Tanah Negara dan juga Warta Kerajaan Negeri Selangor. • oleh itu, pihak yang mempunyai kuasa dan hak mutlak untuk menyewakan Tapak-tapak ini adalah JAIS sahaja di atas arahan Pengarah JAIS. • Defendan Kedua merupakan penyewa yang sah bagi tapak- tapak di bawah kawalan JAIS. Perkara ini disahkan melalui satu surat daripada MAIS bertarikh 27-4-2022 di mana MAIS telah memaklumkan kepada syarikat-syarikat telekomunikasi dan juga pembekal kemudahan-kemudahan rangkaian (Network Facilities Provider/NFP) agar syarikat-syarikat telekomunikasi dan NFP ini bekerjasama dengan Defendan S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 Kedua sebagai penyewa yang sah bagi kesemua tapak-tapak yang dikawal selia oleh pihak JAIS bermula dari 1-4-2022. • kerjasama yang dimaksudkan di atas adalah merujuk kepada proses penyerahan (handover) kesemua tapak-tapak yang berkaitan yang dahulunya diduduki (occupied) oleh syarikat- syarikat telekomunikasi dan NFP ini sebagai penyewa terdahulu yang telahpun tamat tempoh penyewaan. • intipati surat yang dikeluarkan oleh MAIS ini juga adalah bertepatan dengan titah Duli Yang Maha Mulia Sultan Selangor agar penyewaan kesemua tapak di bawah kawalan JAIS hendaklah ditawarkan dan diberikan kepada anak syarikat MAIS iaitu Defendan Kedua. • relief-relief yang dipohon oleh Plaintif di sini secara langsung berniat untuk mendesak Mahkamah ini untuk menentang titah dan seterusnya menimbulkan kemurkaan Duli Yang Maha Mulia Sultan Selangor. • selain daripada syarikat-syarikat telekomunikasi dan NFP yang sah yang mempunyai hubungan kontrak bersama JAIS (Defendan Pertama), pihak JAIS juga telah memaklumkan kepada Defendan Kedua berkenaan 32 Tapak-tapak tersebut yang telah DIDUDUKI SECARA HARAM oleh Plaintif. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 • PENDUDUKAN SECARA HARAM ini juga secara tidak langsung (impliedly) telah diakui oleh Plantif sendiri di mana tidak ada satu pun “perjanjian penyewaan” yang dimasuki oleh Plaintif adalah bersama JAIS sebagai satu-satunya pihak yang mempunyai kawalan mutlak terhadap Tapak-tapak tersebut selaras dengan peruntukan undang-undang yang relevan. • sebaliknya “perjanjian penyewaan” yang dimasuki oleh Plaintif adalah bersama pengerusi-pengerusi surau dan pihak sekolah yang jelas tidak mempunyai kapasiti dan/atau locus untuk menyewakan Tapak-tapak tersebut. • sejak JANUARI 2022 lagi, pihak Defendan Pertama telahpun mengarahkan Plaintif untuk mengosongkan Tapak-tapak tersebut yang telah diduduki SECARA HARAM oleh Plaintif. • setelah 9 BULAN dari tarikh arahan pengosongan dikeluarkan oleh Defendan Pertama, Plaintif masih kekal MENCEROBOH Tapak-tapak tersebut dan enggan mengosongkan Tapak- tapak tersebut. • laporan polis berkenaan PENCEROBOHAN Tapak-tapak tersebut oleh Plaintif telah dibuat oleh wakil Defendan Kedua pada 30-5-2022. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 • Plaintif telah memfailkan tindakan di sini dan menyalahgunakan dan memanipulasi proses Mahkamah ini untuk menafikan hak mutlak Pengarah Defendan Pertama sebagai pihak yang mempunyai kawalan sepenuhnya terhadap tanah-tanah rizab ini dan seterusnya memprejudiskan hak Defendan Kedua sebagai penyewa Tapak-tapak tersebut. • tindakan Plaintif yang jelas difailkan dengan niat tersembunyi (ulterior motive) dan menyalahgunakan proses Mahkamah ini seharusnya dan sewajarnya ditolak dan dibatalkan oleh Mahkamah ini dengan kos. PEMBELAAN SUBSTANTIF DEFENDAN KEDUA • sekitar tahun 2013, pihak Plaintif ada memohon kelulusan daripada pihak Defendan Pertama untuk menyewa dan seterusnya membina, mendirikan struktur-struktur dan seterusnya memasang peralatan telekomunikasi pada struktur-struktur tersebut yang akan didirikan di dalam kawasan-kawasan masjid dan surau yang berada di bawah bidangkuasa Pengarah Defendan Pertama. • lanjutan daripada permohonan Plaintif tersebut, Defendan Pertama telah memaklumkan kepada Plaintif bahawa, secara dasarnya, Defendan Pertama tidak mempunyai halangan berkenaan dengan permohonan Plantif tersebut. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 • namun begitu, Defendan Pertama telah mengarahkan Plaintif untuk terlebih dahulu mengemukakan permohonan kelulusan setiap tapak terlebih dahulu dan permohonan kelulusan ini perlulah disertakan dengan beberapa dokumen-dokumen sokongan seperti berikut: i. Surat sokongan daripada Masjid, surau dan/atau sekolah agama yang terlibat; ii. Butiran berkenaan tapak yang dipohon; iii. Laporan bergambar; dan iv. Pelan lokasi tapak yang dimaksudkan. • Plaintif TIDAK PERNAH MEMATUHI syarat-syarat yang dinyatakan secara spesifik oleh Defendan Pertama seperti yang dinyatakan. • sebaliknya, Plaintif dipercayai telah menggunakan surat yang dikeluarkan oleh Defendan Pertama untuk meyakinkan dan memperdaya (deceived) pengerusi-pengerusi surau dan pihak sekolah untuk memasuki “perjanjian penyewaan” secara terus bersama Plaintif untuk setiap tapak yang diingini oleh Plaintif. • memandangkan pengerusi-pengerusi surau dan pihak sekolah ini jelas tidak mempunyai sebarang kapasiti dan/atau locus untuk memasuki sebarang “perjanjian penyewaan” bagi Tapak-tapak tersebut bersama Plaintif, adalah jelas bahawa tidak terdapat sebarang perjanjian penyewaan yang sah yang telah ditandatangani di antara Plaintif dan Defendan Pertama. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 • pendudukan (occupation) dan juga struktur-struktur yang dibina oleh Plaintif di atas Tapak-tapak tersebut adalah dibina secara HARAM dan merupakan satu PENCEROBOHAN. • sebarang laporan polis yang dibuat oleh Defendan Kedua terhadap Plaintif serta notis pengusiran yang diberikan kepada pelanggan Plaintif, tidak terjumlah kepada satu campurtangan memandangkan Plaintif sendiri tidak mempunyai kapasiti yang sah untuk menduduki Tapak-tapak tersebut dan kekal sebagai PENCEROBOH. Sebaliknya, Defendan Kedua hanya menguatkuasakan haknya sebagai penyewa Tapak-tapak tersebut yang sah. • pernyataan Plaintif bahawa Plaintif kononnya terdedah kepada risiko-risiko yang substantial lanjutan daripada notis- notis pengosongan dan pengusiran yang dikeluarkan oleh Defendan-Defendan adalah masalah yang diakibatkan oleh perlakuan Plaintif sendiri (self inflicted problem). • Plaintif mempunyai pengetahuan penuh bahawa notis pengosongan telahpun dikeluarkan oleh Defendan Pertama sejak JANUARI 2022 lagi iaitu 9 BULAN dari tarikh tindakan ini difailkan. • sebarang risiko yang kerugian yang mungkin ditanggung oleh Plaintif jelas disebabkan oleh keangkuhan, kecuaian dan juga keengganan Plaintif sendiri untuk mematuhi tuntutan Defendan-Defendan sejak 9 BULAN lalu. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 • relief-relief yang dipohon oleh Plaintif di sini adalah satu perintah yang akan mencabuli (violated) dan merupakan satu campurtangan (interference) kepada hak Defendan Pertama dan Defendan Kedua masing-masing sebagai pihak yang berkuasa untuk mengawal tanah-tanah rizab dan juga PENYEWA YANG SAH Tapak-tapak tersebut. • Defendan Kedua memplidkan secara spesifik bahawa Mahkamah ini bukanlah satu forum yang akan memberikan relief lebih-lebih lagi kepada penceroboh (trespasser) apabila relief yang dipohon tersebut akan mencabuli dan merupakan satu campurtangan terhadap hak pihak ketiga dan/atau ke atas sesuatu perjanjian yang sah. • tuntutan Plaintif di sini adalah satu penyalahgunaan proses, mengaibkan, remeh dan menyusahkan. Adalah tidak masuk akal untuk Plaintif sebagai sebuah entiti yang jelas MENCEROBOH tanah-tanah rizab cuba untuk memanipulasi fungsi Mahkamah yang Mulia ini untuk memaksa Defendan Pertama, sebagai pihak yang diberi kuasa untuk mengawal selia tanah-tanah rizab, untuk mengiktiraf Plaintif sebagai penyewa Tapak-tapak tersebut dan seterusnya menafikan hak Defendan Kedua sebagai penyewa yang sah Tapak- tapak tersebut. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 Reply of defence [15] In reply, the Plaintiff has averred that – • all the engagements that the Plaintiff had with the First Defendant and with the management of the 32 Sites did not involve the Second Defendant. • the Second Defendant does not have any proprietary interest or any legally recognised interest in the 32 Sites. • MAIS’s letter dated 27-4-2022 did not state that the Second Defendant is the current and valid tenant of the 32 Sites. • matter forming the subject matter of this action is a matter concerning commercial arrangements that had been entered into by the Plaintiff and the enforcement of the Plaintiff’s right under the law. • the dispute between the Plaintiff and the First Defendant is a matter about the right to occupy and remain in occupation of the Sites, in which the Second Defendant is not a party privy to. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 Tenancy Agreement and the 32 sites [16] In the trial, the Plaintiff has produced and tendered 30 tenancy agreements, namely – Perjanjian Sewaan Antara Plf Dan Masjid/Surau/Sekolah Rendah Agama: i. Surau Al-Ikmal, Taman Semarak, Sg Chua, Kajang bertarikh 9-1-2014. Ikatan Dokumen Bersama/B muka surat 225 hingga 228. ii. Surau Al-Amin, Seksyen 18, Shah Alam bertarikh 9-1-2014. Ikatan Dokumen Bersama/B muka surat 229 hingga 232. iii. Surau Ampang Saujana, Ampang bertarikh 26-6-2014. Ikatan Dokumen Bersama/B muka surat 233 hingga 236. iv. Surau Al-Muhajirin, Kg Lanchong Jaya, Seksyen 28, Shah Alam bertarikh 30-6-2014. Ikatan Dokumen Bersama/B muka surat 237 hingga 240. v. Surau Al-Ehsan, Taman Matang Jaya, Sungai Buluh bertarikh 16-1-2015. Ikatan Dokumen Bersama/B muka surat 241 hingga 244. vi. Masjid Kg Tunku, Petaling Jaya bertarikh 6-4-2015. Ikatan Dokumen Bersama/B muka surat 245 hingga 248. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 vii. Surau Ar-Rahman, Taman Perindustrian Puchong, Puchong bertarikh 6-4-2015. Ikatan Dokumen Bersama/B muka surat 249 hingga 252. viii. Masjid Sultan Hishamuddin Alam Shah, Pekan Batu 14, Hulu Langat bertarikh 14-4-2015. Ikatan Dokumen Bersama/B muka surat 253 hingga 256. ix. KAFA Integrasi Al Husna, Jalan Wawasan, Pusat Bandar Puchong bertarikh 15-7-2015. Ikatan Dokumen Bersama/B muka surat 257 hingga 260. x. Surau Al-Furqan, Semenyih bertarikh 15-7-2015. Ikatan Dokumen Bersama/B muka surat 261 hingga 264. xi. KAFA Integrasi Al Aman, Jalan Jurutera, Kg Sri Aman, Puchong bertarikh 5-9-2015. Ikatan Dokumen Bersama/B muka surat 266 hingga 269. xii. Surau Al-Ikhwan, Taman Seksyen 6, Kota Damansara bertarikh 6-1-2016. Ikatan Dokumen Bersama/B muka surat 270 hingga 273. xiii. Surau Istiqamah, Seksyen 6, Bandar Rinching, Semenyih bertarikh 10-2-2016. Ikatan Dokumen Bersama/B muka surat 274 hingga 277. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 xiv. Surau Al-Makmur, Seksyen 4, Bandar Rinching, Semenyih bertarikh 10-2-2016. Ikatan Dokumen Bersama/B muka surat 278 hingga 281. xv. Surau An-Nur, Seksyen 4, Bandar Country Homes, Taman Desa, Bandar Country Homes, Rawang bertarikh 10-2-2016. Ikatan Dokumen Bersama/B muka surat 282 hingga 286. xvi. Surau Al-Amin, Taman Tun Hussin Onn, Cheras bertarikh 10- 2-2016. Ikatan Dokumen Bersama/B muka surat 287 hingga 290. xvii. Surau Nurul Iman, Taman Minang, Cheras bertarikh 10-2- 2016. Ikatan Dokumen Bersama/B muka surat 292 hingga 295. xviii. Sekolah Rendah Agama Bandar Melawati, Jalan Semarak, Kuala Selangor bertarikh 10-2-2016. Ikatan Dokumen Bersama/B muka surat 296 hingga 299. xix. Surau Muizzah, Bukit Raya, Batu 10, Jalan Hulu Langat bertarikh 10-2-2016. Ikatan Dokumen Bersama/B muka surat 300 hingga 303. xx. Surau An-Nur, Jalan Sri Tanjung, Semenyih bertarikh 10-2- 2016. Ikatan Dokumen Bersama/B muka surat 304. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 xxi. Surau Ar-Rahman, Taman Semenyih Indah, Semenyih bertarikh 10-2-2016. Ikatan Dokumen Bersama/B muka surat 305 hingga 308. xxii. Surau Al-Hidayah, Selayang bertarikh 10-2-2016. Ikatan Dokumen Bersama/B muka surat 309 hingga 312. xxiii. Surau Balai Islam, Taman Ixora, Bandar Baru Salak Tinggi, Sepang bertarikh 16-2-2016. Ikatan Dokumen Bersama/B muka surat 313 hingga 316. xxiv. Surau Al-Muhajirin, Jalan Melor 6, Taman Seri Melor, Kajang bertarikh 24-2-2016. Ikatan Dokumen Bersama/B muka surat 317 hingga 320. xxv. Sekolah Rendah Agama Bukit Sentosa, Fasa 1, Bukit Beruntung bertarikh 16-3-2016. Ikatan Dokumen Bersama/B muka surat 321 hingga 324. xxvi. Madrasah An-Na’imah, Taman Sri Kelana Jaya, Petaling Jaya bertarikh 12-4-2016. Ikatan Dokumen Bersama/B muka surat 325 hingga 333. xxvii. Surau Al-Hidayah, Bandar Saujana Putra, Puchong bertarikh 4-5-2016. Ikatan Dokumen Bersama/B muka surat 334 hingga 337. xxviii. Surau As Sa’adah, Taman Jelok Indah, Kajang bertarikh 4-5- 2016. Ikatan Dokumen Bersama/B muka surat 338 hingga 341. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 xxix. Surau Manba’ul Huda, Bukit Rahman Putra, Sungai Buluh bertarikh 8-6-2016. Ikatan Dokumen Bersama/B muka surat 342 hingga 345. xxx. Surau Ar-Rahim, Bandar Baru Bangi bertarikh 27-6-2016. Ikatan Dokumen Bersama/B muka surat 346 hingga 349. [17] Another 2 tenancy agreements is in the form of Plaintiff’s letter to these 2 Surau and Sekolah Rendah Agama − i. Surau Al-Ikhlas, Bandar Putera, Klang bertarikh 21-4-2016. Ikatan Dokumen Bersama/B muka surat 350. Surat Plf bertarikh 8-7-2022. Ikatan Dokumen Bersama/B muka surat 350. ii. Sekolah Rendah Agama Sungai Sekamat, Jalan Sungai Sekamat, Kajang bertarikh 15-2-2018. Ikatan Dokumen Bersama/B muka surat 350. Surat Plf tiada tarikh. Ikatan Dokumen Bersama/B muka surat 351. [18] The terms stipulated in the tenancy agreements are and about similar to one and another, where − Terma sewaan: • the monthly rental is RM2000.00 and/or RM3500.00 and/or RM1000.00. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 • the tenure of the rental of the Sites is for 15 tahun and/or 7tahun + 8 tahun where the management of the Sites (Surau/Masjid/Sekolah Rendah Agama) allows the Plaintiff to remain its telecommunications equipment and the Plaintiff has agreed to add/increase the monthly rental in k 5% for every 3 years or any additional as stipulated in the agreement. • the payment of the rental is paid directly to the relevant Masjid/Surau/Madrasah/Sekolah Rendah Agama. Consent judgement entered by the Plaintiff and the First Defendant [19] The terms as agreed between the Plaintiff and the First Defendant are – “PENGHAKIMAN PERSETUJUAN TINDAKAN INI telah dibicarakan di hadapan Yang Arif Puan Rozi binti Bainon pada 24 dan 25 Ogos 2023 DAN ATAS PERMOHONAN Plaintif dan Defendan Pertama dipanggil untuk sebutan pada hari ini DALAM KEHADIRAN Josephine Tiew Yenn, peguam bagi Plaintif dan Nurul Izzah binti Abdul Mutalib, Penolong Penasihat Undang-Undang bagi Defendan Pertama MAKA ADALAH DIPERINTAHKAN SECARA PERSETUJUAN di antara Plaintif dan Defendan Pertama bahawa: S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 1. Plaintif dan Defendan Pertama akan memasuki perjanjian penyewaan bagi 34 Tapak yang disenaraikan di Lampiran 1 (“Tapak-Tapak”) atas terma-terma yang akan dipersetujui di antara Plaintif dan Defendan Pertama, termasuk tetapi tidak terhad kepada terma-terma berikut: a. Tempoh sewaan selama tiga (3) tahun dari tarikh perjanjian ditandatangani. b. Sewaan sebanyak RM3,000.00 sebulan bagi setiap satu Tapak-Tapak tersebut. 2. Perjanjian-perjanjian sedia ada yang dimasuki oleh Plaintif dengan pihak-pihak pengurusan Tapak-Tapak dikekalkan sehingga perjanjian yang tersebut di dalam perenggan 1 di atas dimuktamadkan. 3. Selain daripada yang berasal daripada terma-terma yang diperuntukkan di perenggan 1 dan 2 di atas, Plaintif dan Defendan Pertama tidak mempunyai sebarang tuntutan di antara satu sama lain berkaitan dengan Tapak-Tapak tersebut. 4. Plaintif membayar Defendan Pertama RM10,000.00 sebagai kos bagi tindakan ini. Bertarikh pada 16 Oktober 2023.”. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 The Law Burden of proof: [20] In Pernec Ebiz Sdn Bhd v. CCI Technology Sdn Bhd & Ors [2015] 2 MLJ 117, the Court of Appeal held − “Even though the burden upon a plaintiff in a civil suit is only to prove its case upon a balance of probabilities, it must present its case sufficiently clearly to do so. It cannot merely file pleadings, file bundles of documents, proceed to trial, call witnesses to testify and argue on the various issue and expect the court to make out the case on its own for one party or other. … Where the party upon whom the burden of proving its case lies fails to do so, it fails to prove its case and its action must be dismissed.”. [21] Lord Goddard in Bonham-Carter v. Hyde Park Hotel Ltd 64 TLR 177 at p. 178 held− “… 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 the particulars, so to speak, throw them at the head of the court, saying: ‘This is what I have lost, I ask you to give me these damages’. They have to prove it.”. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 [22] The well-established principle that the burden of proof at all times is borne by the Plaintiff on the balance of probabilities to establish his case against the Defendant/s or the existence of a legally enforceable claim against the Defendant/s. It is upon the Plaintiff, and certainly not the Defendant, to discharge that burden. It is for the Plaintiff to prove his case and satisfy the court that his claim is well-founded before the court can grant judgment on his claim. Findings of The Court [23] In the 2 days trial, I have listened carefully on the testimony by the witnesses called i.e. – for the Plaintiff: Suresh A/L Superamaniam, Director of Plaintiff (SP- 1), Aris Bin Abdul Samad, technician (SP-2) and Musanin bin Min, chairman of Surau (SP-3). for the First Defendant: Mohd Hafiz Bin Ahmad, Penolong Pegawai Tadbir at JAIS (SD-1). for the Second Defendant: Mohd Solihin Bin Tasman, Chief Operating Officer at the Second Defendant (SD-2). [24] In evaluating the evidences after the trial, I find that out of the 32 Sites as claimed by the Plaintiff, there are 10 letters of offer sent by the First Defendant to the Second Defendant that involved the following Surau and Sekolah Rendah Agama where the tenancy agreements still in force between the Plaintiff and the management of that Surau and Sekolah Rendah Agama: S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 i. Surau Al-Ikhlas, Bandar Putera, Klang ii. Surau Al-Ikhwan, Kota Damansara, Petaling Jaya iii. Surau Istiqamah, Seksyen 6, Bandar Rinching, Semenyih iv. Surau An-Nur, Bandar Country Homes, Rawang v. Surau Al-Ehsan, Taman Matang Jaya, Sungai Buloh vi. Sekolah Rendah Agama Sungai Sekamat, Jalan Sungai Sekamat, Kajang vii. Surau Al-Amin, Seksyen 18, Shah Alam viii. Surau Ampang Saujana, Ampang ix. Surau Al-Makmur, Bandar Rinching, Semenyih x. Surau Al-Hidayah, Bandar Saujana Putra, Kuala Langat [25] I have also read titah D.Y.M.M Sultan Selangor to the First Defendant Re: “Tawaran Secara Keutamaan (First Right of Refusal) kepada Anak Syarikat Majlis Agama Islam Selangor (MAIS) bagi Sewaan Tanah/Strata di bawah Kawalan Pengarah Jabatan Agama Islam Selangor (JAIS) untuk Tujuan Pembinaan Struktur Menara Telekomunikasi” that is clear in its meaning – “Perenggan 2 surat menyatakan bahawa D.Y.M.M Sultan Selangor menitahkan agar D1 memberikan tawaran secara keutamaan (First Right Refusal) bagi sewaan tanah/strata kepada anak syarikat MAIS untuk mengambil alih sewaan tanah/strata dari mana-mana syarikat yang sewaannya tidak disambung untuk tujuan ini secara berperingkat atau melalui pengambilalihan kepentingan syarikat sedia ada atau dengan apa-apa cara yang difikirkan sesuai.”. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 [26] The learned counsel for the Second Defendant submits that − “25. The said MAIS Letter is also a reflection of the decree by His Royal Highness the Sultan of Selangor in which His Royal Highness has commanded that MAIS’ subsidiary and related company shall be given first right of refusal on any sites controlled by JAIS.”. [27] This Court is puzzled why the learned counsel for the Second Defendant ignored the words “menitahkan agar D1 memberikan tawaran secara keutamaan (First Right Refusal) bagi sewaan tanah/strata kepada anak syarikat MAIS untuk mengambil alih sewaan tanah/strata dari mana- mana syarikat yang sewaannya tidak disambung untuk tujuan ini secara berperingkat atau melalui pengambilalihan kepentingan syarikat sedia ada atau dengan apa-apa cara yang difikirkan sesuai.”. [28] If the interpretation of the underlined words are wrong, the Second Defendant must call the writer of that letter to explain the meaning of the underlined words. [29] Based on the tenancy agreements the tenure for the rent is 15 year from the date of each of the tenancy agreements as referred by the Plaintiff in the trial. There is no new tenancy agreement been referred to in the trial. [30] The consent judgment entered between the Plaintiff and the First Defendant has agreed and solved the issues raised by them and also material matters to the case against the Second Defendant. The agreed terms are that – S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 (a) the Plaintiff and the First Defendant will enter into tenancy agreements for the 34 Sites as listed on the agreed terms by them. (b) the existing agreements that the Plaintiff has entered into with the management of the Sites are still valid, subsisting, enforceable and binding until the tenancy agreement to be entered by the Plaintiff and the First Defendant be finalized. (c) other than the terms as agreed in the consent judgment, there are no claims against the Plaintiff and the Defendant relating to the Sites. [31] With that, this Court is correct in deciding that the Plaintiff and the First Defendant had settled their disputes pertaining to – (a) instructions/directions made by the First Defendant and/or any of the local authority as regards to the specification to erect/install the Plaintiff’s Infrastructure and Equipment at the Sites in accordance to the relevant laws such as Akta Jalan, Parit dan Bangunan 1974. (b) there are no more issues pertaining to – • Whether the Impugned Tenancies entered between the Plaintiff and the management of the 32 sites are valid and binding towards the First Defendant? • Whether the doctrine of estoppel is applicable in favor of the Plaintiff? S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 • Whether the Second Defendant is the lawful tenant in relation to the 10 sites? • If the answer to the above is in affirmative, whether the 2nd Defendant is legally entitled to evict the Plaintiff from the 10 sites? [32] The learned counsel for the Second Defendant submits that “Based on this evidence given by the Plaintiff’s own witness, it is crystal clear that the Plaintiff has indeed manipulated the 1st Defendant’s Letter to deceive and hoodwink the management of the said 32 sites to enter into tenancy agreements with the Plaintiff under the pretext that consent has been given by the 1st Defendant.”. I disagree. There is no deceive nor manipulation done by the Plaintiff, but it is caused by the poor management and supervision by the First Defendant. [33] The management of the 32 Sites had benefitted by receiving the rental payments from the Plaintiff. The money received is for the Masjid/Surau/Madrasah/Sekolah Rendah Agama/KAFA Integrasi to do its operation and management. That is lawful and valid. [34] When the consent judgment entered between the Plaintiff and the First Defendant, it is up to the First Defendant to deal with the Second Defendant pertaining to the letters of offer and/or tenancy agreements for the 10 Sites. By the way, the titah D.Y.M.M Sultan Selangor to the First Defendant is an instruction that the Second Defendant should not take over the 10 Sites since the tenancy agreements between the Plaintiff and the 10 Sites are still valid and enforceable. This Court also under S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 impression that the consent judgment is so welcome because that is the correct interpretation of the titah. [35] The action taken by the Second Defendant as the Second Defendant claimed that it is the lawful tenant of the 10 Sites and therefore has the right to evict the Plaintiff is totally collapsed immediately after the consent judgment been entered between the Plaintiff and the First Defendant. The tenancy agreement of the 10 Sites are still exist, subsisting, enforceable and binding. The Plaintiff is the right tenant for the 10 Sites. [36] The learned counsel for the Second Defendant’s submission that – “82. Being the LAWFUL TENANT, the 2nd Defendant humbly submits that the 2nd Defendant is armed with exclusive possession over the 10 sites and legally entitled to evict a trespasser.” ... 96. In view of the above and the 10 Tenancy Agreements executed between the 2nd Defendant and the proper Controlling Officer over the 10 sites, the 2nd Defendant humbly submits that the 2nd Defendant is indeed a prima facie lawful tenant of the 10 sites. 97. Being a lawful tenant, it is the 2nd Defendant legal rights and entitlement to lodge police report against the Plaintiff for the trespass and subsequently to evict the Plaintiff from the 10 sites. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 98. In fact, the 2nd Defendant’s right to evict the Plaintiff being trespasser is duly admitted by the Plaintiff’s own witness, PSP-1, during cross examination.”. (emphasis added), I disagree. [37] Thus, the Plaintiff is entitle to seek the relief to injunct the Second Defendant, who is not being LAWFUL TENANT, from evicting the Plaintiff, being trespasser. The case cited by the learned counsel for the Second Defendant in Sidek Bin Haji Muhamad & 461 Ors V The Government Of The State Of Perak & Ors [1982] 1 MLJ 313 is not applicable here. [38] In the trial, the Plaintiff has proved that its claims for the declaratory and injunctive reliefs is centred on the Tenancy Agreements that is valid, subsisting and binding upon the First Defendant. [39] Even though before the trial begins, the issue that the management of the 32 Sites is not the correct party and/or should not enter the tenancy agreements are all resolved when the First Defendant has agreed “to sit down” with the Plaintiff to revetting, redo etc with the tenancy agreements. [40] Therefore, determination of this core issue leads to the entitlement to reliefs. This Court finds that the tenancies and occupancies by the Plaintiff on the Sites are lawful and valid, then the reliefs sought by the Plaintiff (which are purely declaratory and injunctive in nature) are granted. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 [41] The Plaintiff as the lawful tenant for the 32 Sites is entitle to seek an injunction prohibiting the Second Defendant from – • interfering with the the Tenancy Agreements. • taking any steps or doing anything that will affect Infrastructure and Equipment at these 32 sites. • issuing notice of eviction of the same nature or upon the same ground. • interfering with the Plaintiff’s peaceful enjoyment of its tenancies for the 32 sites. • interfering with the Plaintiff’s business operation at the 32 Sites during the term of the Tenancy Agreements including prohibiting the Second Defendant from taking any steps or doing anything that will affect the operation of the Plaintiff’s Infrastructure and Equipment at the 32 Sites. [42] The Plaintiff avers that the Second Defendant is actually a competing company. The Second Defendant is a company linked to the First Defendant. So far from the evidence before me, the documents had showed that the Second Defendant had detriment the Plaintiff’ business. [43] The First Defendant has offered and later the Second Defendant has signed the tenancy agreement for the 10 Sites that already occupied via tenancy agreements between the Plaintiff and the management of the Surau/Sekolah Rendah Agama. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 [44] The Plaintiff has tendered documentary evidence that the Infrastructure and Equipment at the Sites requires investment of substantial amounts of money. A tower alone costs RM100,000.00 to RM200,000.00 just to build. [45] This Court agrees with the Plaintiff any attempts to evict the Plaintiff and allows the Second Defendant to profit from the investments of time, money and had work poured into by the Plaintiff, with little to no time or effort on its own part. The location of the 10 Sites as claimed by the Second Defendant as the lawful tenant is indeed belong to the Plaintiff who found the 10 Sites. [46] The payments of the rental by the Plaintiff as the tenant to the bank accounts of the Masjid/Surau/Sekolah Rendah Agama are based on the subsisting tenancy agreements and it have been done the contract is for few years more to go/expires. [47] This Court recognized the presence of the Second Defendant as the company that related to the First Defendant. However, the fact that the Second Defendant has the similar business liked the Plaintiff, the Second Defendant is the lawful tenant and the Second Defendant has the right and power to evict the Plaintiff just because the Tenancy Agreement are invalid are all gone when the consent judgment entered between tha Plaintiff and the First Defendant. Further to say, the “special letter” from the Istana Negeri Selangor is enough to say that the First Defendant should not caused any injustice to the Plaintiff who is the lawful tenant under the Tenancy Agreements. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 36 [48] The Plaintiff is subject to the requirements under the laws to ensure that its Infrastructure and Equipment at the Sites must comply with the First Defendant and the local authority guidelines. [49] The Plaintiff has initiated this Suit against the two Defendants when it is clear that the steps and action taken by the Defendants had truly affect the Plaintiff’s business and the risks suffered by the Plaintiff are no an illusion. The notices to evict the Plaintiff are not due to the Plaintiff’s self inflicted problem. The risks are coming and started from the First Defendant and/or the Second Defendant themselves. [50] In determining the claims against the Second Defendant by looking strictly on the consent judgement entered between the Plaintiff and the First Defendant, my decisions are that – (a) the Tenancy Agreements are valid, subsisting and binding until their stated expiry dates. (b) the eviction notices should not be executed. (c) the 10 Sites offered and/or already signed the Tenancy Agreements between the First Defendant and the Second Defendant is for these 2 parties to solve. (d) the Second Defendant is injunct from interfering with the Plaintiff’s peaceful enjoyment of the tenancies for the 32 Sites. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 37 (e) the Second Defendant is injunct from interfering with the Plaintiff’s business operation at the 32 Sites until their stated expiry dates. And I allowed order for costs in the sum of RM5000.00. Conclusion [51] In view of the foregoing reasons, I find that the Plaintiff had successfully on a balance of probability in demonstrating that the Plaintiff is not a trespasser. The Plaintiff is entitled to seek from this Court an injunction to restrain the Second Defendant from repossessing the 10 Sites. [52] There are valid Tenancy Agreements exists between the Plaintiff and the First Defendant. [53] As long as the Tenancy Agreement for the 10 Sites still binding on the Plaintiff, the Second Defendant cannot claim to be the lawful tenant pertaining to the 10 sites; and is legally authorized and empowered to evict the Plaintiff from the said 10 sites accordingly. [54] The Second Defendant must patietly wait till the Tenancy Agreement expires and I would like to repeat titah D.Y.M.M Sultan Selangor to the First Defendant that – “Perenggan 2 surat menyatakan bahawa D.Y.M.M Sultan Selangor menitahkan agar D1 memberikan tawaran secara keutamaan (First Right Refusal) bagi sewaan tanah/strata S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal 38 kepada anak syarikat MAIS untuk mengambil alih sewaan tanah/strata dari mana-mana syarikat yang sewaannya tidak disambung untuk tujuan ini scara berperingkat atau melalui pengambilalihan kepentingan syarikat sedia ada atau dengan apa-apa cara yang difikirkan sesuai.”. Dated: 23 November 2023. RoziBainon ( ROZI BINTI BAINON ) Judicial Commissioner Shah Alam High Court NCvC12 Counsels: For the Plaintiff: Joshua Chong Wan Ken together with Josephine Tiew Yenn & Chon Yi Ning Tetuan Raja, Darryl & Loh, Kuala Lumpur. For the First Defendant: Nurul Izzah binti Abdul Mutalib Pejabat Penasihat Undang-Undang Negeri Selangor, Shah Alam. For the Second Defendant: Nik Mohamad Syakhir bin Mohd Yasin Tetuan Zain Megat & Murad, Kuala Lumpur. S/N SIDNrBOfJ0WUmUwVPv9kag **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

BA-24C-39-05/2023

PEMOHON BMG GLOBAL SDN BHD RESPONDEN JUANG-ANTARA BINA SDN BHD

- 3 Originating summinses.- Stay & setting aside application are dismissed.- The enforcement is allowed.- total cost of RM10,000 paid to Juang subject to allocatur fee.

23/11/2023

YA Puan Sumathi a/p Murugiah

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=318cebec-a473-44e7-87cc-2742af6b78a6&Inline=true

BMG v Juang.pdf IN THE HIGH COURT OF MALAYA AT SHAH ALAM, SELANGOR DARUL EHSAN ORIGINATING SUMMONS NO: BA-24C-38-05/2023 BETWEEN BMG GLOBAL SDN BHD (Company No. 200501020540 (702664-W) AND JUANG-ANTARA BINA SDN BHD DEFENDANT (Company No. 199501016618 (345821-P) (HEARD TOGETHER WITH) IN THE HIGH COURT OF MALAYA AT SHAH ALAM, SELANGOR DARUL EHSAN ORIGINATING SUMMONS NO: BA-24C-39-05/2023 BETWEEN BMG GLOBAL SDN BHD (Company No. 200501020540 (702664-W) AND JUANG-ANTARA BINA SDN BHD (Company No. 199501016618 (345821-P) 23/11/2023 09:00:17 BA-24C-39-05/2023 Kand. 25 S/N 7OuMMXOk50SHzCdCr2t4pg **Note : Serial number will be used to verify the originality of this document via eFILING portal (HEARD TOGETHER WITH) IN THE HIGH COURT OF MALAYA AT SHAH ALAM, SELANGOR DARUL EHSAN ORIGINATING SUMMONS NO: BA-24C-43-05/2023 BETWEEN JUANG -ANTARA BINA SDN BHD PLAINTIFF (Company No. 199501016618 (345821-P) AND BMG GLOBAL SDN BHD DEFENDANT (Company No. 200501020540 (702664-W) JUDGMENT (3 Originating Summonses (OSs)) A. INTRODUCTION [1] On November 2022, Juang-Antara Bina Sdn. Bhd. (Juang) had commenced an Adjudication Proceedings pursuant to the Construction Industry Payment and Adjudication Act 2012 (CIPAA 2012) against BMG Global Sdn. Bhd. (BMG) to claim a sum of RM2,822,066.26 as unpaid sum. The Adjudicator decided in favour of Juang in his Adjudication Decision (AD). S/N 7OuMMXOk50SHzCdCr2t4pg **Note : Serial number will be used to verify the originality of this document via eFILING portal [2] As a result of the AD, the followings were filed by the parties: (i) OS No. BA-24C-38-05/2023 (Suit 38) was filed by BMG to set aside the AD pursuant to s.15 of CIPAA 2012; (ii) OS No. BA-24C-39-05/2023 (Suit 39) was filed by BMG to stay of execution of the AD pursuant to s.16 of CIPAA 2012; and (iii) OS No. BA-24C-43-05/2023 (Suit 43) was filed by Juang against BMG to enforce the AD pursuant to s.28 of CIPAA 2012. [3] Since there are 3 OSs filed in relation to this AD, the parties agreed to having all the 3 OSs heard together and for the decision to be delivered together. Since this is a cross suit between the parties, for ease of reference the parties will be referred to henceforth with the acronym of Juang and BMG wherever applicable. B. BRIEF BACKGROUND [4] By way of a Letter of Award dated 19.9.2017, BMG had appointed Juang as a sub-contractor to carry out a construction of a bridge and all related works in respect of a Jambatan Merentasi Sungai Pahang Dari Kg. Guai ke Kg. Seberang (the Project). S/N 7OuMMXOk50SHzCdCr2t4pg **Note : Serial number will be used to verify the originality of this document via eFILING portal [5] Due to a non-payment of claims made by Juang from BMG, Juang issued a payment claim to BMG requesting for a sum of RM2,822,066.26, comprising as follows: (i) RM1,575,196.38 being the total amount for the Payment Certificates Nos. 40 & 41 and the Progress Claim No. 48 amounting to RM168,650.65, RM376,734.44 and RM1,129,811.29 respectively; and (ii) RM1,146,869.88 being the First Moiety of the Retention Sum. [6] BMG on the other hand had not responded to the payment claim by any Payment Response to Juang. C. ADJUDICATION PROCEEDINGS [7] Juang initiated Adjudication Proceedings against BMG by issuing a Notice of Adjudication dated 4.11.2022 and an Adjudication Claim was served on 21.12.2022 to BMG. [8] An Adjudication Response was replied by Juang on 9.1.2023 cross claims: i. RM3,609,000.00 being the liquidated ascertained damages (LAD) that BMG is entitled to impose against Juang; S/N 7OuMMXOk50SHzCdCr2t4pg **Note : Serial number will be used to verify the originality of this document via eFILING portal ii. RM398,745.03 being the differential sum as a result of remeasurement; and iii. Costs. [9] Upon conclusion of the Adjudication Proceedings, the Adjudicator, Lim Hock Siang had delivered his decision in favour of Juang via his AD dated 20.3.2023 as follows: 13.1 an adjudicated sum of RM2,772,096.26; 13.2 pre-action interest at the rate of 5% per annum; 13.3 costs in the sum of RM89,533.22 which includes t fees, AIAC administrative costs, taxes as well as party to party costs [10] The parties agreed for this court to hear and decide the 3 OS together. [11] Being dissatisfied with my decision, a Notice of Appeal has been filed by BMG. D. OBJECT CIPAA 2012 [12] CIPAA 2012 is a creature of the legislation intended to facilitate speedy and regular payments in the construction industry. As cash flow is the utmost important factor in the construction industry, CIPAA provides interim measures to disputing parties to solve payment issues expeditiously so as not to jeopardise the continuance of the construction contract entered into by them. (see Martego Sdn Bhd v. Arkitek Meor S/N 7OuMMXOk50SHzCdCr2t4pg **Note : Serial number will be used to verify the originality of this document via eFILING portal & Chew Sdn Bhd and another appeal [2019] 8 CLJ 433; [2019] 5 AMR 516 FC; Bertam Development Sdn Bhd v. R&C Cergas Teguh Sdn Bhd [2017] 1 LNS 2228) E. ISSUES [13] BMG 2012 is premised on : i. The Adjudicator had breached the rules of natural justice in and/or ii. The Adjudicator had not acted impartially and had breached natural justice in failing to consider all documents presented to him which led to him acting in excess of his jurisdiction in arriving at a disproportionate outcome to the detriment of BMG. [14] application for a stay of execution of the AD pursuant to s16 of CIPAA 2012 is premised as follows: i. Pending the full and final determination in arbitration pursuant to s. 16(1) (b) of the CIPAA; ii. That there is a clear and unequivocal error in the AD; and S/N 7OuMMXOk50SHzCdCr2t4pg **Note : Serial number will be used to verify the originality of this document via eFILING portal iii. That be able to repay the Adjudication Sum should BMG is successful at the Arbitration. [15] Juang 2012 is premised as follows; i. that the Adjudicated Amount is not paid by BMG; and ii. that the AD is neither set aside nor stayed. F. FINDINGS OF THE COURT I. Setting Aside OS -Suit 38 (s.15 of CIPAA 2012) [16] The issues which BMG had raised against the AD are particularly pursuant to s.15(b), (c) and (d) of CIPAA 2012. As such, I will consider whether BMG had discharged its burden on a balance of probabilities to prove to this court that there has been a denial of Natural Justice by the Adjudicator, that the Adjudicator had failed to act impartially and that the Adjudicator had acted in excess of his jurisdiction respectively in arriving to his conclusion of the Adjudication Proceedings. It is also the contention of BMG that there are clear and unequivocal errors in the AD. a. s.15(b) of CIPAA 2012 [17] It is Adjudicator had failed to properly or at all consider all the defences raised by BMG as such the Adjudicator S/N 7OuMMXOk50SHzCdCr2t4pg **Note : Serial number will be used to verify the originality of this document via eFILING portal had acted in breach of Natural Justice and in excess of his jurisdiction. In particular, the Adjudicator had on LAD as stated in paragraph 28 of the AD on the ground that :- i. Due to the absence of an extension of time clause, the ii. extension of time, Juang merely needs to complete the works within a reasonable time. [18] It defence raised by BMG with regards to the LAD issue as stated in its Adjudication Response. According to BMG, the Adjudicator in his decision at paragraph 28 had failed to consider that there is a total delay of 743 days (from the Completion Date of 18.11.2019 until the date of practical completion on 30.11.2021) which exceeds the total number of days of extension of time that Juang is entitled to. [19] I refer to the case of MRCB Builders Sdn Bhd v. Wazam Ventures Sdn Bhd and another case [2020] 1 LNS 891; [2020] MLJU 208, where Wong Kian Kheong J (as he then was) held that it is sufficient to dislodge a complaint of breach of natural justice if the Adjudicator had given just one reason to have arrived to his decision. [20] The principle of Natural Justice that is said to have been denied here is the right to being heard, audi alteram partem. In an Adjudication Proceedings, the Adjudicator has the duty to accord procedural fairness S/N 7OuMMXOk50SHzCdCr2t4pg **Note : Serial number will be used to verify the originality of this document via eFILING portal to the parties during the course of the proceedings whereby the issues raised by both parties are to be considered and a decision is to be derived therefrom. In the case of ACFM Engineering & Construction Sdn. Bhd. v. Esstar Vision Sdn Bhd & another appeal [2016] 1 LNS 1522; [2016] MLJU 1776, the Court of Appeal held: [19] 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 [21] In perusing through the AD, unlike what is claimed by BMG, the Adjudicator had deliberated on the issue of LAD at paragraph 17 onwards till he reached a conclusion on this issue at paragraph 28 of the AD. [22] Even BMG had conceded to the fact that the Adjudicator had considered the LAD issue before concluding at paragraph 28 i.e that time is at large and that Juang only has to complete the works within a reasonable time. [23] With regards to the issue of set off of RM398,745.03 being the differential sum as a result of remeasurement, the Adjudicator deliberated at length on this issue at paragraph 36(b) to 38 of his AD before coming to his decision whereby he had decided against claim for a set off. [24] Therefore, BMG address the issue of set off raised by it at the Adjudication Proceedings is totally unsubstantiated and unfounded. S/N 7OuMMXOk50SHzCdCr2t4pg **Note : Serial number will be used to verify the originality of this document via eFILING portal [25] On whether the Adjudicator had considered issues which were raised by Juang in the Adjudication Reply, it cannot be denied that the Adjudication Reply and a final Sur-Rejoinder by Juang. The issue which was said to have been raised in the Adjudication Reply was that time is set at large, which BMG had addressed in its Rejoinder opposing the same. Juang had also addressed the same issue in its Sur-Rejoinder. As such, BMG has failed to prove to the court that the Adjudicator had not accorded procedural fairness in the Adjudication Proceedings. [26] but had also made his findings in accordance to all the documents in relation to these issues which had been submitted for the purpose of this proceedings. [27] I refer to the case of Bina Puri Construction Sdn Bhd v Hing Nyit Enterprise Sdn. Bhd. [2015] 8 CLJ 728 where it was stated as follows: Adjudicator may be set aside. Since an application under s.15 is not an b. s.15 (c) of CIPAA 2012 [28] An AD can be set aside if it can be established pursuant to s. 15(c) of CIPAA 2012 if BMG discharges its legal burden that the S/N 7OuMMXOk50SHzCdCr2t4pg **Note : Serial number will be used to verify the originality of this document via eFILING portal Adjudicator lacked independence or impartiality in conducting the Adjudication Proceedings and in delivering the AD. [29] On the issue of lack of independence or impartiality of the Adjudicator, Lee Swee Seng J (as he then was) in the High Court case of Teguh Wiramas Sdn Bhd v. Thien Seng Chan Sdn Bhd [2017] 1 LNS 619; [2017] 4 AMR 501 had stated the following: There is also no basis for the Respondent to allege that the Adjudicator had failed to act independently and impartially. The fact that the Adjudicator did not agree with the Respondent's position on the law is no proof that he had failed to act independently and impartially. Such an allegation should not be launched without some evidence pointing inexorably to a lack of independence or impartiality in the hearing and the delivery of the Adjudi [30] In this case, it is BMG consider issues which had been raised by BMG at the Adjudication Proceedings, such as, omissions and recalculations. It is also said that the Adjudicator had failed to invite for further submissions on these issues and the issue on LAD which BMG had raised as its cross-claim at this proceedings. Hence, the Adjudicator had failed to display impartiality and independence in his role when arriving to his decision. [31] Apart from the allegations made against the Adjudicator, BMG had not adduced any evidence to show that the Adjudicator lacked independence or impartiality in making his decision in favour of Juang. As shown in the above paragraphs when dealing with s.15(b) of CIPAA, the Adjudicator had reasoned out every conclusion that he had reached S/N 7OuMMXOk50SHzCdCr2t4pg **Note : Serial number will be used to verify the originality of this document via eFILING portal when deliberating the issues brought before him. As such, I am not convinced that BMG has discharged the burden of proving the allegation made against the Adjudicator under this limb. c. s.15(d) of CIPAA 2012 [32] s.27 of CIPAA 2012 provides the jurisdiction in which the Adjudicator can conduct the Adjudication Proceedings. s.27(3) of CIPAA particularly gives the Adjudicator the discretion to proceed and complete the adjudication proceedings not withstanding any jurisdiction challenge, without prejudice to the rights under s.15 and s.28 accordingly. [33] An AD is commonly applied to be set aside in reliance of s.15(d), as such the case of Terminal Perintis Sdn. Bhd. v Tan Ngee Hong Construction Sdn. Bhd. and another [2017] 1 LNS 177; [2017] MLJU J (as his he then was) classified jurisdiction 3 categories ie. core jurisdiction, competence jurisdiction and contingent jurisdiction. [34] In this case, the jurisdiction challenge is on the contingent jurisdiction as stated in the Terminal Perintis Sdn. Bhd. v Tan Ngee Hong Construction Sdn. Bhd. and another (supra): there must be further compliance with the requirements of the Act as in that the dispute must be one falling within the matters raised in the Payment Claim and the Payment Response as provided for under section 27(1) CIPAA. In that example the word "jurisdiction" is used in the sense of the scope of the dispute that is before the Adjudicator for decision. So, for example an Adjudicator may not be able to decide on the defence of set-off arising out of S/N 7OuMMXOk50SHzCdCr2t4pg **Note : Serial number will be used to verify the originality of this document via eFILING portal costs of rectifying defective works if this has not been raised in the Payment Response. If he so decides, then this Court may set it aside as been made in [35] In this case, BMG a frolic of his own in coming to his decision and as such he had acted in excess of his jurisdiction. However, on t all the issues which the Adjudicator had dealt with had been brought to him, including the issue pertaining to LAD. [36] In fact, BMG had in its Affidavit in Support stated that the Adjudicator had failed to consider Clause 17 of the Letter of Award date 19.9.2017 and PILING WORKS AND STRUCTURES 8.1 PILING WORKS (ALL PROVISIONAL) Note: All when deliberating issues involving omissions and recalculation. [37] However, BMG failed to show that this issue was in fact raised during the Adjudication Proceedings. As submitted by Juang, BMG had never raised the issue pertaining to clause 17 of the LOA and the terms in Tender Bill No. 8 in the adjudication proceeding. [38] Therefore, BMG cannot now allege that the Adjudicator has exceeded his jurisdiction because he failed to consider clause 17 of the LOA and terms in Tender Bill No. 8 because these points were never raised by BMG in the Adjudication Proceedings in the first place. [39] Therefore, having failed to establish s.15(b), (c) and (d) of CIPAA 2012 against the Adjudicator, BMG has failed to discharge its burden on S/N 7OuMMXOk50SHzCdCr2t4pg **Note : Serial number will be used to verify the originality of this document via eFILING portal balance of probabilities to set aside the AD. As such, this application to set aside the AD is hereby dismissed with costs of RM5,000.00 to be paid to Juang by BMG subject to allocatur fees. II. Stay of Execution Suit 39 (s.16 of CIPAA 2012) [40] BMG via its affidavit in support deposed by its director had stated this application is in reliance to s.16(1)(b) CIPAA and that the execution of the AD should be stayed on the basis that there is a pending civil suit. [41] The Federal Court case of View Esteem Sdn Bhd v. Bina Puri Holdings Bhd [2019] 5 CLJ 479 His Lordship Zulkefli Ahmad Makinuddin PCA had in delivering the judgement stated the following: s. 16 of CIPAA would allow some degree of flexibility to the courts to stay the award where there are clear errors, or to meet the justice of the individual case. It is accepted that a stay of the award ought not be given [42] Since I have deli aside the AD, I am of the view that there are no clear and unequivocal errors in the AD which warrant a stay of execution to be granted. [43] On the grounds that stay should be granted pending the final determination of a pending civil suit, to prevent an abuse of s16 CIPAA, I fall back on what was said by Justice Lee Swee Seng (as his Lordship then was) in the case of Pasukhas Sdn Bhd v. Empire Multiple Sdn Bhd and Another Case [2019] 1 LNS 757; [2019] MLJU 1393. His Lordship in his judgment had succinctly reasoned that in spite of s. S/N 7OuMMXOk50SHzCdCr2t4pg **Note : Serial number will be used to verify the originality of this document via eFILING portal 16(1)(b), allowing a stay merely on the fact that the arbitration had commenced with the service of a notice to arbitrate would render the entire purpose of the CIPAA futile and statutory adjudication wholly ineffective to ensure cashflow in the construction industry. [44] The final reason given for this stay application is that the financial standing of Juang is weak and as such, should BMG is successful in the civil suit, Juang will not be able to pay back the Adjudication Sum to BMG. [45] reveals that Juang has suffered a loss after tax of RM88,524.99. As such, Juang may not be able to repay BMG should it be successful at the civil suit. [46] Be that as sit may, in the same report, it also shows that Juang has a revenue of RM56,874,555.56. A revenue of such an amount certainly does not reflect Juang as a weak concern. BMG has failed to suit decision nugatory should it be made in favour of BMG. [47] In the upshot, I d application with costs of RM5,000.00 subject to allocator fees. III. Enforcement OS Suit 43 (s.28 of CIPAA 2012) [48] As guided by Her Ladyship Mary Lim Thiam Suan JCA (as she then was) in the Court of Appeal case of Inai Kiara Sdn Bhd v. Puteri S/N 7OuMMXOk50SHzCdCr2t4pg **Note : Serial number will be used to verify the originality of this document via eFILING portal Nusantara Sdn Bhd [2019] 2 CLJ 229, the court may exercise its discretion to grant leave under s. 28(1) and (2) CIPAA to enforce an adjudication decision if the following three conditions (3 Conditions) are met: applying for leave under s. 28 CIPAA; (2) the party against whom an adjudication decision is made, has failed to pay the adjudicated amount on the date specified in the adjudication decision; and (3) [49] In this case, in the absence of any evidences to say otherwise, all 3 conditions have been satisfied and since the setting aside and the application for stay of execution of the AD have been dismissed, Juang application to enforce the AD is allowed with no order as to costs. G. CONCLUSION [50] Premised on the above evidences and reasons: (i) both the Setting Aside and Stay of Execution OSs are dismissed; (ii) the Enforcement OS is allowed; and (iii) a total costs of RM10,000.00 subject to allocatur fees shall be paid to Juang by BMG accordingly. S/N 7OuMMXOk50SHzCdCr2t4pg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 7OuMMXOk50SHzCdCr2t4pg **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

AA-24NCvC-326-08/2019

PEMOHON KOPERASI PEKERJA JAYA BHD RESPONDEN 1. ) PIONEER HOLDINGS SDN. BHD. 2. ) LOKANATHAN A/L MANICKAM 3. ) NACHAMANA A/L CHINCHEIAH

Undang-Undang Tanah – Kaveat - Permohonan untuk membatalkan kaveat – sama ada terdapat kepentingan yang boleh dikaveat dan persoalan yang serius untuk dibicarakan. Sama ada kelewatan terlampau dalam memulakan tindakan menjejaskan kaveat yang dimasukkan. Kanun Tanah Negara 2020 - subseksyen 323(1) dan 327(1).

23/11/2023

YA Dato' Bhupindar Singh A/L Gurcharan Singh Preet

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=74c1e7a5-ecbc-4097-b9af-7c859b267107&Inline=true

23/11/2023 12:19:32 AA-24NCvC-326-08/2019 Kand. 97 S/N pefBdLzsl0C5r3yFmyZxBw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pefBdLzsl0C5r3yFmyZxBw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pefBdLzsl0C5r3yFmyZxBw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pefBdLzsl0C5r3yFmyZxBw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pefBdLzsl0C5r3yFmyZxBw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pefBdLzsl0C5r3yFmyZxBw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pefBdLzsl0C5r3yFmyZxBw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pefBdLzsl0C5r3yFmyZxBw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pefBdLzsl0C5r3yFmyZxBw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pefBdLzsl0C5r3yFmyZxBw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pefBdLzsl0C5r3yFmyZxBw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pefBdLzsl0C5r3yFmyZxBw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pefBdLzsl0C5r3yFmyZxBw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pefBdLzsl0C5r3yFmyZxBw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pefBdLzsl0C5r3yFmyZxBw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pefBdLzsl0C5r3yFmyZxBw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pefBdLzsl0C5r3yFmyZxBw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pefBdLzsl0C5r3yFmyZxBw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pefBdLzsl0C5r3yFmyZxBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 1ua—2uIcvc—32s—us/2019 Kand. 97 23,1;/zuu 12 DALAM MAHKAMAH TINGGI MMAVA DI IPOI-I DALAM NEGERI PERAK, MALAYSIA SAMAN FEMULA No- AA-ZANOVC-J26-M12015 Dzkam pevkari Kavaal Pzvxendman mas lanah haxrvm:xVN same Na L01 2349:, PN 305477 Na Lm mes FN auana No Lo| 23495, PN saws No LL71 23497, PH 305450 No Lu zma PM auam Nu La! 23499 Muknm Sungax sum Dnerah mu. Knlvgsnr Negzn Pevnk mm mmn yang m dang: dengan No Fanslvahan muawm pad: as m 2mg DAN Dawn pelkava n.m..=r. m tum mmmx Na m2m41 — lo| 21155 No ml was — mzam NoLuI23435—Lo(2CMDC|,NoLoI 23500 — La: 23512, Nu La! 23513 — mu 2:551, Mukxm Sungm sun; Daemh Kunm Kanvsar. Neqen Ferak Dam! mazm mu Dalam Pemara Seks‘/en an den M7 Kanun Tanan man was mu Dalam Derkara Alumvkluvnn 5 7 2s 29 flan ea Kudah A KaadIh—Kaedah Mahkamah 2m 1 N v-vaauswncsvzyfinyzxaw um smm ...m.mm be used m mm .. mmuny mm: dun-mm VI] muNG pm um Dzlam mam kuasa xedm ada Mahkamalv my Mulla VH ANTARA KCIFERASI FEKERJA JAVA am: (No PENDAFTARAN KOPERAS\ 19) [4 PLAINTIF DAN 1. PIONEER HOLDINGS SDN am: (No PENDAFTARAN 4523934)) 2. LDKANATHAN A/L MANICKAM 3. NACHAMANAA/LCHINCHEIAH DEFENDAN-DEFENDAN PENGHAKIMAM Pengenalan [1] Plamm zewah memvankan sualu perrnuhonan unluk memnataxkan kaveal persendman yang dlmasukkan aleh dslsndan perlama dan an dwdaflarkan pada 5 7 2019 re atas man dw bawah hakmmk PM 305476 No La! 23494, FN 3435477 Na La! 23495, PN 303473 No Lot 23493 PN 305479 No La! 23497, PN 3D84EU Nu La! 23493 dart PN 303431 No Lm 2 sw p-vaausmcsvayrmyzxaw -ms Sum IHIWDIY WW be .15.. m van; M m\g\ruHIy mm; dun-mm VII mum puns! 299:; dun Lu! 7s37 mzlupakan 7....» Mm." Ksrajssn Nsgerv Pomk L1.» bukan mm" Kapsraxr urvluk duzmduhmdrk kopada Defendnn Psflama Makn ya aanran mustalm u/wk Kupsrasr rm.-wu/miksn smarvah bag: Delendnn Peflnma unluk tnnah-Iunnh ken/sun lsrxsnut 1: Secam lawman dzn daram enema»/, Kapemut menyslakan nahawa u.r.mn Pcmml dun/um: wlhllnyn mun unpl rzln um nlcnylllhi pruln umilng-undlng mnngnmbll urlnan (Munorlndum p:na.m:m; Bonny «u yum man dlundlunylnt mm Hmong dun dlslrnpm near: ucrow untuk pmpk ,..m».»... rm... Tun Sambanman mg mun dfllkukan aldlv »<..,7...m .1, Sunyar sum dun mm was somnggs 29:72 L1... cm msnqgunakarmya Iamadap Kopcrust ways”- [17] Kandungan sure! Pajabal Fengarah man den Galwan Negen Perak (‘PTG') benarlkh 15 11 2020 Ilamplran 75 ekshlbwt A muka sure! 27) mendedahkan bahawa -2 L/nmk max/uman. paaa 2:2 12 was mcrvgvkul my Pejebar Psrrgamh Tansn dun Galvan Negzn Peak Lot ms. Lot ma Lo! 7537 din Lo! um um». Sungur Srpul, Dasmn Kuala Kangsa/adilan tlnnh ksmmnn - Berdasarkan surat PTG benankn 12 11 2002 yang dialamalkan kepada mamlw. Ferjumpaan Maflls Mesyuaral Kerapaan (‘MMK‘) an 1415 nada 15102002 telah memuskan pembenm Kan kawasan seluas 7n ekar untuk cadangan skim pemmahan an alas lanah Lot 2995 dan sebahagwzn Lac a930, Lat 7537 dan Lat nea Mukxm Sungax Slum, Daevah Kua\a Kangsar, Perak kspada plamlfl (lmal Lampxran 7a exsrum A muka aural 27 dan anaavm eambshan de!endan panama Lampivan 17 ekshlbw LM 2 u N v-vaauswncsvzyfinyzxaw um smm ...m.mm be used m van; .. mmmy mm: dun-mm VIZ mum puns! lzmpuran D) F\aml\f (elah rnemelaskan premium bagw pembenmlllkan |anzh asal paaa 3 11 2003 dan dnkumen hakmlllk bag: 6 Lat lersebul le\ah dldaflarkan pada 10 7 mus {ca} Bag: memyakkan delendan penama memasukkan kaveat ke alas 5 Lot tersebul, delendan penama mesmah merupakan orang yang menumm hakmmk am kapermngan yang bc\eh dldaltar an bawah seksyen 323 KTN Dalam Wong Kuan nu v. Gambul nwelnpmem Sdn. End [1934] 1 CLJ Rep 441: [mu] 2 ML! 113 Hashim Yeop Sam HMP dalam pengnakxmannya (ekah menuhs "The sxpressmn “mmw m the Nauanal Lsnu Code was axamvwdby me Pnvy Councfl m Ragvslmr a( Miss. Jolvors v, T:/vlanggong Sicmmzs mg [1975] v ms as An unsecured crvvl mu; . mm uemm: darm smma nal cums mm [M monmng or-mzemrm azom arms Nalmmal Land Coda Ssctran 3247dasIs mm clmumslancss m mum in: Ragusmrs caveat mnybe mma The rmsrss! mama la in 5 32341; nlthe Code rs Interest 5: erwvsagedm Ihe coo. Lard Drplock m Tamevrggong Seculmes ua sard at p 47 m. axpressran "mtsmsf :5 um m many sachons Ihmughaul me am spa/tfmm s .1247 arldm nuns ollham in mm me»! Lorr1sIHp.s' atlsrmun nas been mm. can .1 be plausibly mgsszsu that n burs any wrdnr meaning man an mterss1 In rand ov a kmd winch u mcogmsad by the cm as bvmg mthar rugrslrub/5 or alhevwvxe enmlsd to pmlechorv Mus :1 rs pram mu! m: appel/an! clmmsd no am we mm! to I069: ma cavealbul huadun Clause Ma) 07:06 am ofassrgnmanl ms mu pm. ma: ms was n conmacfual nglvl appmme my wnun pwchas: me rs not iulaj/pend am (ms alone cannot create . cmmme mlevextm the land ms :2 sw D-raausmcsvzyfinyzxaw «-um smm ...m.mm be used m van; .. mmmy mm: dun-mm VII mum pans! contractual nmvvstan 506: no! wants an max: wtmm ms meanmg ots 323 aims Nztmnsl Land Caas lmmesl: mm an pmlaclumu by caves! ... anly mllmslx rscuymsad Dylht Code We canlmcfualplwrsmn due: no! amount m M! squirm): or other mlsrusr sulficmnl to 50990" a caveat Section 323I1IoIIhe N.sm:naVL.9nd Code ms ammo classes ufpsrsons was my rods: 3 prvwla caveat may am man In body 1:/almmg W910 nrvynlfanntedlnnd, ardmmmg .ny;.gmmb«= mmu m anyahenaledfamt. or 1:/aimmg any ngm m such We ol molest, and mcludes pslswv or body claiming to be bsnefiowl/y snmled mm any trust I/faclmg any such land or wares! ms wards “any ngm la such A113 at mleresl“ may be wme ermugh la allow rlgllls unsung under a contract lot mgm;-an/a aeawrg to be pmlecled by . caveat mu lney ale no! me enough la mwrrnwa palsmval ngm as dmmgmsnsd from ngms rsumng to land Sac an own Wang Land Ttrmrsm Me Malay Sluts: 7 pp 415435 A: My Man 0/ this srgumsrvl has the very mange av [Ha Tarvuns wslom The Indalaaslmlrty ol We mean: that me We can unly n. clmllungld mm 340(2) 0/ the National um cm, and only in mtsnsl in mm: Ivcogrusvd undo: s 323 allhu Nabonsr Land cm can supper! 2 caveat’ [19] Mahkamah Persekuluan dakam sum Option: Sdn Bhd v. Mexaland Development Sdn Bhd 1201211 cu !fl1ls\ah memuluskan 7391/: rs also our cansrdared Mew ma: 1». Llwalor Mam azamm a( me me muslllave a presenrmlevesl as anpmedto a Dolsnns/mrerssl m (09 land The Iegnallabls mleresl Ina! Ins cswstons ¢/mmmq Von mus! be M. exls-My mterusl The ca!/semi Amosrs zzamm av an. Nu: must a. mmeam mum who m claimmg In an Elusfwrg uuamz m In: /ondnrnghl m such swung rnneresl and manual mama: uotenlrel mleresl olrnla/sslm mm - 1; sm p-raausmcsvzwmyzxaw mm. smm ...m.mm .. LAIQ4 m mm .. mmmy mm: dun-mm VII mum pans! [20] Berhallk kepada kepermngan uevenaan panama (emadap s Lu| xeusebun Eovang 14A berlankh 2912 1999‘ paaa masa (ersebut \anah asa\ masxh belum dlpecah \c\ dan dlmilwkx oleh Kerayaan Tanuh asal amen mmk kepada pkaxrmi rnemlux kepulusan MMK pada 1s1u2ou2 dan dndaftarkan pada 10 5 2003 Oleh nu‘ Berang 14A yang dwkemukakanmeh delendan perlama hdak mempunyal apaapa makna Iangsung Ia merupakan kepmgan kerlas yang max bzmflax Tambahan pula sum PTG bertsnkh 2: 9 2020 Ie\ah mengesahkan Enrang 14A|ersebuHu1ak dapat dlpmses berdasarkan nombur PA (No L01 2996 PA 13975 dan Na Lot 7637 PA 33135 — llhal Bnrang 14A) [21] (Nah yang demlklany selelah menelm semua ketevangan dokumen semasa yang mxemukakan, Mankamah ml berpendapac bahawa delendan panama bukanlah merupakan orang yang mempunyal kepenungan unluk memasukkan kaveat ke acas 5 Lot (evsebuf Eierdasarkan a\asan wm sahaja permonunan p\aInN‘ pamt mbenarkan dan kaveal yang mmasukkan dmatalkan [22] Ddendan panama juga (elah membangkukan bebevapa wsu lam yang perm duelaskan Damn amavn yawapan defendan panama (Lampyan <7) dalam perenggan 14 lelih dmyalakan bahawa my mm many [alum mm, Dali; san s samy vanu yang memaukan AN: Pamman Sungm Srpul yang man memagang jawalan ssbagar 14 w p-vaauswncsvzyfivvyzxaw -naa saw ...n.mn be used m van; .. nr1g\ruHIy mm: dun-mm wa mum puns! Menlsn Kama Rays msrsnqksp Psngsrusr umara... Kapsmsr Faker]: Jay: Eemad am. Kopeust »>......./ a»... me/zrmk Dcfsndnn Panama unluk manyllnsmkun parnaga. .a.. .1... maaaran khusuxnya uvusnrv berkarlan lanah yang 19/an dmadapr mun Kapernv Plum!//. 1.; 5yarvkaIDofem1-Iv Panama mar. dnlarlhk men Psngcrus: Plmnlvfpsda masa lzrsehut ....m manyamaaman rswsu a.a..a... bebempa mak max lansh dun n/mzrvrumarv ....m< Plsfnltl .1. Fuss n, Tamar: m.. Samnanlhan yirvy lulah Aemerrgks/M (‘abs/m‘onsI1‘] um me am... swam Delcrvdun Perlsms la/sh mm mancan usmbsll .1... ;=a...a,.. mmana na....... sass Ulnpsds mmnhrrumah yang tamengka/an ml/»k .=ra...m mar. ovsslcsavkan mar. Delandan Panama Eerszmarrama rm .m......m.. sesslmzn swarswil konespanden danpada mam... kupada psmba/Haembslt rumun-mmah m. u .1. r........ Tun Sambumarr mmana salmon Isiah dralamsman Kepsds Defender! Ke—2 sslaku Psngeuill Syanksl Delsndarv Panama yang mama ssbugauksnbu 1.4- “ [23] Fellu dwekankan bahaws projek Taman Tun Sambathan Udak mempunyax api-spa kanan dengan 5 Lot (ersehm kerana 5 Lot lersebul walah Ianah yang umangunkan a. bawah projsk Tamar: Tasxk Saujana Saya Ielah msnehlu aemua swat da\am Ekshlblt L4 (Limplrsn I7) dan mendapau suralsmal VIM benankh dun (alum 1989 hlngga 1991 Saya mendapan pa..ga.aan.pa..gacaan yang dnbual o\eh defendan panama dalam perenggan 14 m dan (H) berlentangsn dangan dakumen semasa Wm sdalah kerana mangxkul canan Suruhzluaya Syankal Mmaysxa detenaan panama hanya dllubuhkan Dada 1011 1957 Umal Lampwan 3 ekshmn G1) Maka musraml, aevendan panama man anarmx pada 1951 15 am D-raausmcsvzyfivvyzxaw «ma am. ....a..wm be used a van; .. nrimnnflly MIN: dnunmnl .. mum pom! can 1959 unmk merualankan umsan dan kena hag: plaunnr Delendan kedua aan delendan panama walah dua enlm yang bsrasmgan Prinsnp undangundang lelah manlap bahawa seseorang mdlvldu dan syankax mempakan en|I|I unflang-undang yang beraslngan [241 Delendan panama wga mengalakan bahzwa pmbagax kena manan le\ah dnakukan men deiendan penama bagl pla1nl11dan|untu|an sejumlah 1 5 Ma rlnggll te\ah mkemukakan kepsda p1a1n111 Jumlah 1 5 11113 nnggu im max peinah dmmbulkan dalam Barang 195 alau su defendan perlama Tambahan pma had: apa-apa dokumen mkemukaxan aleh aevenaan panama bagl menuruukkan apakah keqa Lanah yang a.1:ua1, berapakah jumlah yang dubelamakan, bxla 1umu1an (ersebut nu dmamukakan dan buw~1:u11r mengenan ]um\ah 1 5 Ma nng In Amal sukar unmk dxpercaym bag4 kena yang benurmah 1 5 Ma nnggil udak lemapal salu pun dokumen mengenamya [25] Salem: dnewm penya1a sum! aevandan panama bag: canun 1999 zouoy 2005 dam 2015. d1 bawah cayuk ’Pr1I1c/pa/Aclu/W‘ d:ca1a1kan bahawa “The Company was mcorpwatsd an 1DNa\/ember 1997 and ms no! mmmenced Us apsrauon smcs me more of mcorpol-aliun" max lerdapal sabarang ca\alan mengsnan hulang yang belum ununnn sebanyak 1 5 ‘ma nnggn dalam mana—mana penyaca audit defenflan 15 IN p-vaauswncsvzyfinyzxaw -ma 5.11.1 ...n.mn be used m van; .. nrimnnuly mm: dun-mm VIZ mum wrm panama onan ‘m‘ amzl jzlas penga|aan defendan panama benentangan aangan aakuman samasa yang dlkemukakan nleh plamm Eerasaskan kelerangan dalam kes ml‘ apa yang dlkalakan man defendan penama cuma kenyalaan Kosung yang max dlsokang oleh aaaarang bum Dapatan Mahkamah W aaalan max terdspat sebarang persealsn yang senus unmk dvblcarakan [26] P311513 11 2o19.aavam1an panama lelah memiallkan hndakan awn lemadan plalnlmauu AA-ZZNCVC —11lH1l2D19(‘Guaman 2019') Dawn Gaaman zum, delendan panama lelah memmtul mar a//a deldarasl bahawa delendan panama va\ah man punya dan/alau pam Ik aan flan/atau baneflsm unluk we Lot tanan plamm (levmasuk 5 Lo| Iersebm) Wnl saman aan Femyalaan mmacan nalan dvksmukakan sebagaw aksmbu LM 2 dalam Lamplran 29 Pada a 9 2021 Guaman 2019 (elah mbalalkan Rayuan defendan uerlama ke Mahkamah Rayuan jugs (elah maaxax pads 732023 Oleh nu, dekandan panama lldak mempunyax seharang kausa unuakan Ierhadap plamm unluk mengakaxkan kavea| yang dwmasukkan ks alas 6 Lo| Iersebm [27] Imbangan Ksadflan da\am kes wu harpmax kepafla plamm supaya kaveal yang dlmasukkan dlbalalkan Davandan panama hdak mempunyal kepenlnngan yang bulan dnkaveal ke alas s Lvl (ersebul Borang 14A yang mgunakan sebagaw asas untuk memssukkan kaveal uaak dapal 17 IN p-vaauswncsvzyfivvyzxaw -ma am n-nhnrwm be used m van; was mmny mums dun-mm VIZ mum ma mewusmkasukan hndaxan aevanaan panama Tambahan pula kewuludan kaveal \eIsebut ls\ah manyebabkan kemuaarauan kepada plalrmf yang udak bmeh menjual dan memmdah rvulwk 3 La! |ersebu| kepada plhak Kenga [25] lngm duelaskan bahawa kelewatan «enampau dedendarv penama membawa undakan (emadap plalnlfl ;uga lalzh dvambll kva oleh Mahkamah W Da\am kes Mngnpillm Sdn. arm. v. Lake Kwok Four [1996] 4 CLJ 32 Mahkamah (elah memuluskan ‘The ameol or a naval! Mk: um 01 In rnlorfucumry m/unchun .5 m nmwda mtsmn plutuctron In an. mg...“ alllre aaplrcam who can mow ma! n. he: a gcnwle I:/mm an that Interest and that the stalus quo Dcrwsen lhapama: man be mamlamedpsndmg ma final Ulspmzllalhrs claim .1 a later data 1: ram: mersrors ms apphcflrvf mus! pursue ms clarm Irmsousy m mo Calm and fuflure m do .m mu delsal ma wrsga omavmg his cavoalbemg ayplrad ugamsl the mshenab/s nglvlo/mu Iugnstcmd pmprvllovla away nu /and mus Wham mars has Deon an Inmdanshs flulay an me pan 0! ms cavealarta presume ms alarm agmnstlha oavsalos ma Cowl wlflnullond its assistance to allow mm lo mamlam ms caveat m m. mm..." a« ma mgfsfered pmansror ‘as to pm!/en! . nun demvny wrlh hr: umpumj altar and: a lung ds/ayrs so In mcqufmble - [291 Akhlr kaxa, berdasarkan alasamalasan yang dnerangkan dan dmuralkan dx alas, Mahkamah Im Ielah msmbenarkan permohnnnn pwamm m Lampuan 1 bag: uerenggan 1, 2, 3 dan s dengan kas sehanyak RM5,uuu no (snakmk kepada avaxatur in am D-raausmcsvzyfinyzxaw "Nuns Snr1n\nnnhnrwH\I>e used m van; .. mmmy mm: dun-mm VII mum am Benankh 23 November 2023 ”(.J (auuvm SINGH AIL GURC RAN SINGH PREET) Hakvm Mahkamah Tmggl Ma\aya lpoh Pxhak-pmak Bag! pmak plalnlll Sheanna Shanta bersama Prushmaman Dass‘ Tetuan Lawcrwana s Nawawr Bag: pmak deferuian-delandan Dam‘ Sukhdev Smgh Rananawa, Teman Azlan Shah Sukhdev & Co 1! sw p-vaausmcsvayrmyzxaw -ms Sum In-nhnv WW he .15.. m van; M m\g\ruHIy mm; dun-mm VII mum puns! 23499 Muklm Sungaw smut, Daerah Kua\a Kangszr‘ Nsgen Psrak Daml Rldzuan (‘6 Lat lersebm”) an bawah seksyen 327 Kanun Tanah Negara 2020 (‘KTN'| Lalar balakang ken [1] Fmntwl merupakan permllk berdaflar tanah an hawah hakmillk asal Lo! 2595 dan sebahagxan Lu(476B, Lm 7537 dan Lat aaan Mum Sungai Swpul, Daerah Kuala Kzngsar‘ Negen Perak Darul Rwdzuan ['\anah asa\') Tanam asa\ tevsebm Aelah mpecan m umuk xumn pembangunan perumahan kepada 455 hakmilxk Indwvwdu man No Lot 21047 hungga La! 21155‘ No Lot 2323: mngga Lu(23434‘ No Lvl23435 mngga Lm 23459‘ No Lat 23500 hmgga Lm 23512 flan Nu LM23613 hmgga 23551‘ Muklm Sungax Slpul, Daerah Kuala Kangsar, Negen Perak Darul Rldzuan rhaxmmx mdwxdu lersebufl [3] Setelah mendapa| hakrmhk mdwxdu |eIsebu|‘ P\aIv\Il1 te\ah memasukl sualu perjarulan dengan Kmla Silmana Sdn and (‘pema;u'| pads 27 7.2015 untuk memajukan tanah asal dan ssbanyak ass buah mmah te\ah mma dwblna d1 alas tanah asal (‘Fmjek Perumahan') Pmjek Pevumahan m. dxbahagxksn Kepada bebevapu vasa Rumah—rumah .1. F253 1 dan 2 Prajek Perumahan terssbul Iekah mum dlblna dan dmam pvases penyempumaan ma! bah Kesemus rumah bag: Fan 1 Ie\ah auampan dan pnamm sedang menyempumikan urusan pmdahmmk [4] Pada 572019, defendan perlsma Is\ah msrnasukkan kaveal ke alas 6 Lu| |eIsebu| Pada lankh yang sama defendan penama 1uga|elah memasukkan hma kaveax ke alas 44 La! yang wam danpada hakmllxk Indwldu tersebm dan kehma-llma kaveal lersebut Ke\ah dmalaxkan Unhal Knperasl Faker]: Jaya and v. non r Holdings sun End [2021] 1 LNS 156‘ [2021] MLRHU 125) Defendan kedua dan kehga Ialah pengarah uan pemegang saham deiendan perlama mamm \a\ar\ psmmk berdaftar 5 Lot «eraemn [51 Dalam alxdayw sokongan, pmvmf menyztakan bahawa semmlah RM|‘515‘814 oo te\ah dlbelanjakan uleh p\am(Il bag: Pmjek Perumahan Iersebul (Lampnran 2 perenggan 19) Menurul mavmflmdzkan aamnaan penama memasukkan kaveal dnbuat dengan nial what untuk mengnaxang pernayu danpada melaksanakan Prmek Ferumahan (evsebuf la ]uga Ie\ah memudaralkan urusan penjualan mum wam kerana defendan kedua |e\ah memhual pemyataan akhbav tenlang kavea| yang mmasuxxan dan dflipaman oleh benla Malays4aK1m (dua keratan akhbal - Lampvan 2 ekshlbnl on Akmamya orang ramaw kin: lakul untuk mambeh rumah bag: Pmjek Perumahan lsrsaaux {6} Melalul sura| benankh 5 a 2019‘ pernaw Prmek Perumahan telah memaklumkan plamlfl bihawa akmax kaveal yang mmssukkan ke itasfi Lo! xersenm, plhak pemhlaya celah berhenh danpada memproses permahonan pvuaman mereka Ime; pemaju Iuml lercemar dengan pub‘ m negam an rangkalan Internet nuengenm kemasukan kaveat lersebul [7] men nu‘ puamm menyalakan bahatwa pmnm akan mengalalm kemgxan seklranya kaveat flu «max mbawkan kerana pmaannnmk 6 Lot (ersebumdak dapat dxlaksanakan dan mamtxfluga akan Derdepan dengan hndaksn undang-undang aklbat kemungklran penannan jual beh Anulisis uan dapzlan Mahkamah [5] Kaveau pevsendwian wen mmasukkan berdasarkarl Derumukin subseksyen 323(1) KTN, yang berbunyw ‘:2: Appuuuons for "my orpnm. cnvub (1; The persons and badns .1 wins: mstmvcl a pm/ale caveat may be cmorad ala- m anypeman orbady claiming We za, many ragnttrab/e Inlnrast m, any ahervatsd rand mundmandxh-rs n any ulvbnslsd /....1 or any ngn: to such me or nmm, nu any person Dr body clalmmg :0 be bsnefimzfly smmed under tmytruslallsclrng snysuch Vandurmtsresl. and (:1 my gualdrsn ar nexl lnemlalarvy rumor clarmmg m be arvlwud ax mentmrvsd /n paragraylv 4»; - N v-vaauswncsvzyfivvyzxaw um smm n-nhnrwm be used m van; .. mn.u.y MIN: dun-mm VIZ mum puns! [91 Perumukkan yang barman dengan permonanan pemba|a\an kaveal dmyalakan di\im subseksyen 327(1) KTN darl dvksmukakan dl hawah "327 Removal orpnma caveats by Ms court {1}/My person or may aggnovudby Ma uxrsleme are prwats caveat may at any Irma app/y la the Cam In! an order for 15 removal, and m. Caun (nclmg um. cmmmsta/was so Isqmrs, ex pull] mly make Such outs! on ma sap/malmn as u may lmnk M1 - [101 Plamm damn kes Im mempakan pemlllk berdsllar 6 Lot lelsebut dan s dokumen hakmxlvk lelah msennkan dalam Lampvan 2 sebagax eksnm G3 Memandangkan plamm mempakan pelmhk berdaflar mak: DVBWM man ovang yang Ierkflan an bawah ssksyen 327 KTN (lmat Eng Mao Vang 8- On v.Lu|chumunan[l97I]1LNS1B;[1§'I5]2 MLJ 212; [1919] 1 MLRA 14: den Wu Shu cnen a. Anor v. R-1: hlnal Abidin Raja Hussln [1997] 3 cm :54; [1997] 1 MLRA 405) [11] Pnnslp undangmnuang mengensn pembaualan kaveax ada\ah mancap dan aa\am Kes Eng Mae Yong (supmj Lord Dlplock lelah menyatakan "ms IS the nature of the onus mat /res upon me cavsalm n an appllcalton by me cavulnn mm 3271:): removal of: cam: he mus! (vs! snugly me Cowl that on (he evidence presented I0 »4 nn own 1» an mteresl m the pmpany does use 5 mm quamn In be med and, nanny mama so‘ he musl go on m snow ma! an "M balance o/our-wemence n would be barter N p-vaauswncsvzyfivvyzxaw Nuns smm n-nhnrwm be used m van; .. nrimruflly mums m.n.n VIZ mum puns! In mflmtmn ma mm: mm mm/ the Ins] D/lhs swan, Dy pmvarllmg me emu" mm msposmg aims rm m some rm parry " (121 Mahknmah Rayuan dalam kes Luggage Dlatrlbulon (M) Sdn and V. nu Hor Yang A Annr [1995] 3 Cu 520; [ms] 1 MLJ 119 le\ah mengganskan uga Iahsp yang perlu dlpelfimbangksn ssmasa menemukan permohanan pembalalan kaveal -m my mgmm, lllws M5 mruo stages mmugh wmm an mqwy or ms nalurs mum 90 nm firs! stag: .s lhe zxnmmabon arms g/uumis axplvsud m m. nppllcflnwv Iv line caveat rm appears manna grounds statad mm”. .m msullicrenl 1.. law to support a cuvsal. mu. cndvl quaesho, and (he cavssl must be rsmoved wrmuul I00 necessny algalng any lurmer The mansions: mu name In an and arms the cavsarmsatrsflcs ma Cmm that In: L‘/mm .3 exprussed M Ma applmalmn m Form an amounlx m law to . cavaslams mlsrsxt He must go on to show, In nppmuriaie cam, maL based on ma alfiauvvrx mm, In: clavm dvscloxes 2 serious quswon manbng . Ina! rm mun rs me seonnd stage The dsgrss L)/proof ma: has 1.; be nllered wfl/, olmmse. vary from case In case At this me second stage me Conn is many onnmrmd wrm mullus DI tvrasrvcu and pmalollslsd to suppon the cavulars 51mm The mm: stage rs amvad it only alter me am Mo mans have Men massed by m cnvsamr Have the qusslxzn to D5 aslmd ralsrns la me mam onuum, ar wvval Lord Dvplock Iannsdm Eng Mu Vang (supra) .5 VA: mam alwnvsmsme’ r: u only upon sansiymg these lhree stages aleunalscmnny Ihata caveat may be pcnnitled Ia remam mm this slrowdbs so rs umy logical, for u "5 . ssrrous maflvr m caveat a person's proparfy. nrm umaxs a an m pmpmy 1 sm p-raausmcsvzyfivlyzxaw mm. smm ...m.mm .. LAIQ4 m mm .. mmmy mm: dun-mm VII mum pans! made can a caveal ought not be psmmlsd la rumum an the mgvstm a "man: langer than .s absolutely necessary’ [13] Berpandukan nas cu alas, Manxaman vm dalam menemukan permohanan panmacaxan kaveal p\amM nannaxxah msmpemmbangkan uga parkava yang benkut (a) Tahap panama - sama ada defender: panama mempunyal kepsnungan yang boleh drkaveal ke alas 5 Lot lersebuty (n) Tallap kedua — seklranya defendan panama rnampunya. kapannngan yang polan auxayaac, sama ada lumulan delendan panama berdasarkan buku yang dlkemukakan mendedahkan persoa\an yang senus unluk amucarakan dan (c) Tahap kauga — selelah benaya mengatasw dua lanap nu alas. sama aua Imbangan kaaanan memmak supaya Kaveat nu mkekalkan atau dlbalalkan [14] Delendan panama penu msmbuklukan aanawa 13 mempunyaw kepanllngan yang boleh dikaveal ke atas 5 Lot leysebul Alassn yang dnnyalakan eleh aetanaan keuua Gan kauga sehsku pengarah defendan panama dalarn Eurang wee berlankh 372019 aaaxan sapam yang benkut IN p-vaauawncsvzyfi-vyzxaw -naa sanaw n-nhnrwm be used m van; .. nrighvnflly mm: dun-mm VIZ mum wrm ‘[3] KoptIarIPtlr1Itn Jay: and Man buumju unluk mm-maanmm Lam-Lollanlh yang mpcgang drbuwuh PN No sows Nngga PA/No 3475491 Na LL74 23494 hmggu No Lo! 23:29 Mukrm Sungar sum, Dasralv Kuala Kanasar, Negan Pam keuada Syankal Praneer Holdmyx Sun and rssupus rm dlm]uA ssbagar ‘Syarvkut r:seb411‘7 amp... mun-ndltlrwlnl Boring an uhlynl um." um "mm: kefirkl . yzng man mhkukln am. sy-mm tarstbul unluk xopmm Pskaqa Jays End mm: mslakuksn k1I]a~knq'a psrmullan Dlgv n.:map. bvdang awn aarmmk tunllwannh yang dmyutakarv unis/am Jadual Tanah dvdalam Boring rm drmana ktnl Syulkn lersebul .a.:.n plrmllk Btncfixi-I hug! Lot-Lol hnan mum 1:); Km Lat-Lal mm. Ian-ecu! berada dam prose: pembmasn flan pern/ualan drmana max Perumamzn smug mkmdmvkan oleh mm Syankalyzng Damams Kim Saupsnu Pewua/an 19/an mom kwpada orany swim was 574252019 melalur pa/ancararv .1... 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Tika 2.6.0 & Pytesseract-0.3.10

BA-22NCvC-233-07/2020

PLAINTIF ABDUL KADIR BIN AHMAD DEFENDAN ZURAIDA BINTI AB HALIM

Transaksi jual beli hartanah - sama ada wujud kontrak di mana harga jualan dipersetujii antara plaintif dan defendan - sama ada pembayaran yang dibuat oleh defendan merupakan sebahagian daripada harga jual beli hartanah tersebut.

23/11/2023

YA Puan Indra Nehru Savandiah

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=c8079824-f4fa-4b8f-b643-2c5b6cb4058f&Inline=true

1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN NO. GUAMAN.: BA-22NCVC-233-07/2020 ANTARA ABDUL KADIR BIN AHMAD … PLAINTIF [NO. K/P: 640707-06-5103] DAN ZURAIDA BINTI AB HALIM … DEFENDAN [ NO. K/P: 730721-04-5052] _________________________________________________________ ALASAN PENGHAKIMAN Rayuan 1. Rayuan adalah terhadap keputusan Mahkamah yang membenarkan tuntutan plaintif dan menolak tuntutan balas defendan. Ringkasan Kes Plaintif 2. Plaintif mengalami masalah kewangan sekitar bulan April 2013. 23/11/2023 16:26:18 BA-22NCvC-233-07/2020 Kand. 75 S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 3. Dalam pada itu plaintif membuat keputusan menjual kepada defendan sebuah kondominium di Unit No. B9-3, Tingkat L9, Blok B3, City Garden Palm Villa Kondominium, 68000, Ampang, Selangor, yang dipegang di bawah hak milik PM3916, Lot 40925, Seksyen 16, Bandar Ampang, Batu 5, Jalan Ampang, Daerah Hulu Langat, Negeri Selangor Darul Ehsan yang dahulunya dipegang di bawah hak milik HSM 29688, PT 30441, Mukim Ampang, Daerah Hulu Langat, Negeri Selangor Darul Ehsan (selepas ini dirujuk sebagai “hartanah tersebut”). 4. Pada 11.4.2013, sebanyak RM5,000.00 yang merupakan wang deposit dibayar oleh defendan kepada plaintif. 5. Defendan dengan kebenaran bersyarat yang diberi oleh plaintif telah menduduki hartanah tersebut sementara proses rundingan dan dokumentasi jual beli dimuktamadkan. 6. Plaintif mendakwa tiada persetujuan harga jualan hartanah tersebut di antara beliau dan defendan. S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 7. Menurut plaintif, harga jualan yang ditawarkan adalah sebanyak RM310,000.00. Walau bagaimanapun defendan dikatakan bertekad untuk membeli hartanah tersebut dengan harga jualan sebanyak RM300,000.00. 8. Defendan juga didakwa telah melakukan kerja-kerja pengubahsuaian secara besar-besaran di atas hartanah tersebut tanpa kebenaran secara bertulis daripada plaintif. 9. Tawaran semula harga jualan bagi hartanah tersebut dibuat kepada defendan. Harga tawaran kedua adalah sebanyak RM380,000.00 dan akhir sekali RM400,000.00. 10. Plaintif dan defendan gagal mencapai persetujuan bersama berkenaan dengan harga jualan bagi hartanah tersebut. 11. Defendan juga dikatakan gagal membuat bayaran ansuran bulanan bagi hartanah tersebut mengikut jadual pembayaran yang dipersetujui semasa plaintif memberikan kebenaran secara bersyarat kepada defendan untuk menduduki hartanah tersebut. S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 12. Hal ini telah mengakibatkan plaintif menanggung pelbagai kerugian dan masalah. 13. Defendan telah mendaftarkan kaveat ke atas hartanah tersebut. 14. Plaintif mendakwa perbuatan defendan telah menafikan plaintif untuk menikmati hak milik beliau ke atas hartanah tersebut. Manakala defendan masih lagi menduduki dan menikmati hartanah tersebut sedangkan plaintif yang membuat bayaran ansuran bulanan pinjaman perumahan bagi hartanah tersebut setiap bulan apabila defendan berhenti membuat bayaran ansuran bulanan. Ringkasan Kes Defendan 15. Defendan mendakwa plaintif telah bersetuju menjual hartanah tersebut dengan harga sebanyak RM300,000.00. 16. Defendan telah membayar plaintif wang deposit sebanyak RM5,000.00. S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 17. Defendan juga berkata telah membuat beberapa pembayaran kepada pihak tertentu seperti Majlis Perbandaran Ampang Jaya (MPAJ) dan Badan Pengurusan Bangunan bagi pihak plaintif. 18. RM3,596.00 telah dibayar oleh defendan kepada Public Bank Berhad bagi menghentikan tindakan undang-undang oleh bank tersebut terhadap plaintif. 19. Defendan berkata sejumlah RM45,000.00 telah dibayar kepada plaintif. Ianya tidak termasuk wang deposit RM5,000.00 dan bayaran kepada Public Bank Berhad, RM3,596.00. 20. Plaintif dikatakan tidak hadirkan diri untuk menandatangani perjanjian jual beli bagi hartanah tersebut. 21. Plaintif juga dikatakan membuat tawaran baru iaitu RM380,000.00 dan RM400,000.00 bagi hartanah tersebut. 22. Defendan mendakwa telah membuat bayaran pendahuluan serta lain-lain bayaran sebanyak RM53,596.00. S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 23. Defendan juga berkata telah membuat bayaran ansuran bulanan ke Public Bank berhad bagi jumlah tidak kurang dari RM80,000.00. 24. Kos pembayaran tunggakan cukai pintu hartanah yang dibuat adalah sebanyak RM2,189.60. 25. Bayaran bil-bil utiliti yang dibuat sebanyak RM15,583.90. 26. Bayaran kos pengubahsuaian hartanah adalah sebanyak RM70,000.00. 27. Kos penyediaan perjanjian jual beli adalah sebanyak RM4,000.00. 28. Tuntutan plaintif terhadap defendan ialah: (a) Defendan menyerahkan milikan kosong bagi hartanah yang dikenali sebagai Unit B9-3, No. Tingkat: L9, No. Bangunan: B3, City Garden Palm Villa Kondominium yang dipegang di bawah hak milik PM3916, Lot 40925 Seksyen S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 16, Bandar Ampang, Tempat Batu 5 Jalan Ampang, Daerah Hulu Langat, Negeri Selangor Darul Ehsan yang dahulunya dipegang di bawah hak milik HSM 29688, PT 30441, Mukim Ampang, Daerah Hulu Langat, Negeri Selangor Darul Ehsan (“hartanah tersebut”) kepada plaintif secara serta merta; (b) Suatu deklarasi bahawa plaintif adalah pemilik bagi hartanah yang dikenali sebagai Unit B9-3, No. Tingkat: L9, No. Bangunan: B3, City Garden Palm Villa Kondominium yang dipegang di bawah hak milik PM 3916, Lot 40925 Seksyen 16, Bandar Ampang, Tempat: Batu 5 Jalan Ampang, Daerah Hulu Langat, Negeri Selangor Darul Ehsan yang dahulunya dipegang di bawah hak milik HSM 29688, PT 30441, Mukim Ampang, Daerah Hulu Langat, Negeri Selangor Darul Ehsan (“hartanah tersebut”); S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 (c) Suatu perintah bahawa Kaveat Persendirian No. Penserahan: 1165/2015 yang didaftarkan pada 5/3/2015, jam 2.37 petang atas nama defendan di Pejabat Tanah Daerah Hulu Langat adalah diketepikan dan/atau dibatalkan; (d) Suatu perintah bahawa defendan hendaklah menanggung segala kos-kos perbelanjaan yang akan ditanggung oleh plaintif untuk mengembalikan semula keadaan dan/atau reka bentuk asal hartanah tersebut kepada keadaan sepertimana sebelum sebarang pengubahsuaian tanpa kebenaran plaintif yang telah dilakukan oleh defendan ditaksirkan oleh Mahkamah yang mulia ini; (e) Suatu perintah bahawa defendan hendaklah membayar kepada plaintif keseluruhan jumlah tunggakan bayaran ansuran bulanan S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 pembiayaan perumahan beserta faedah dan/atau penalti bayaran lewat dan/atau keseluruhan bayaran ansuran bulanan selepas penjadualan semula pinjaman bagi hartanah tersebut untuk sepanjang tempoh defendan menduduki hartanah tersebut sehingga tarikh milikan kosong diserahkan semula secara sepenuhnya kepada plaintif ditaksirkan oleh Mahkamah yang mulia ini; (f) Suatu perintah bahawa defendan hendaklah melangsaikan keseluruhan jumlah tunggakan bayaran penyelenggaraan dan/atau utiliti hartanah tersebut bagi sepanjang tempoh defendan menduduki hartanah tersebut sehingga tarikh milikan kosong diserahkan semula secara sepenuhnya kepada plaintif ditaksirkan oleh Mahkamah yang mulia ini; S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 (g) Suatu perintah bahawa defendan hendaklah melangsaikan keseluruhan jumlah tunggakan bayaran bil elektrik hartanah tersebut bagi sepanjang tempoh defendan menduduki hartanah tersebut sehingga tarikh milikan diserahkan semula secara sepenuhnnya kepada plaintif ditaksirkan oleh Mahkamah yang mulia ini; (h) Suatu perintah bahawa defendan hendaklah melangsaikan keseluruhan jumlah tunggakan bayaran bil perkhidmatan pembentungan hartanah tersebut bagi sepanjang tempoh defendan menduduki hartanah tersebut sehingga tarikh milikan kosong diserahkan semula secara sepenuhnya kepada plaintif ditaksirkan oleh Mahkamah yang mulia ini; (i) Gantirugi am ditaksirkan oleh Mahkamah yang mulia ini; S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 (j) Gantirugi teladan ditaksirkan oleh Mahkamah yang mulia ini; (k) Gantirugi teruk ditaksirkan oleh Mahkamah yang mulia ini; (l) Faedah pada 5% setahun atas apa-apa bayaran gantirugi yang diperintahkan dikira bermula dari tarikh writ difailkan sehingga tarikh penjelasan dan/atau pembayaran sepenuhnya; (m) Kos; dan (n) Apa-apa relief atau perintah lain sebagaimana yang difikirkan patut dan suaimanfaat oleh Mahkamah yang mulia ini. S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 29. Tuntutan balas defendan ialah: (a) Suatu perintah ke atas plaintif untuk meneruskan transaksi jual beli hartanah tersebut kepada defendan pada harga asal yang telah dipersetujui iaitu RM300,00.00 tertakluk kepada syarat-syarat biasa suatu transaksi jual beli hartanah; (b) Suatu perintah ke atas plaintif untuk menandatangani Perjanjian Jual Beli hartanah tersebut di antara plaintif sebagai penjual dan defendan sebagai pembeli pada harga asal yang telah dipersetujui iaitu RM300,000.00; (c) Suatu deklarasi bahawa harga jual beli hartanah tersebut adalah RM300,00.00; (d) Suatu deklarasi bahawa segala bayaran yang telah dibayar oleh defendan ke atas perkara- S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 perkara yang dinyatakan di dalam perenggan 18 (a) hingga 18 (e) di atas dipersetujui dikira sebagai sebahagian dari bayaran harga belian hartanah tersebut yang telah dibayar oleh defendan kepada plaintif; (e) Plaintif membayar balik segala kerugian defendan berjumlah RM225,369.50 sekiranya plaintif dibenarkan untuk mengambil balik hartanah tersebut; (f) Kos; dan (g) Apa-apa relief selanjutnya dan yang lain sebagaimana yang difikir suaimanfaat oleh Mahkamah yang mulia ini. 30. Isu-isu untuk dibicarakan: S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 (a) Sama ada wujud kontrak jual beli antara plaintif dan defendan bagi hartanah tersebut dengan harga yang dipersetujui sebanyak RM300,000.00; (b) Sama ada plaintif adalah merupakan pemilik berdaftar bagi hartanah tersebut; (c) Sama ada plaintif berhak mendapatkan milikan kosong hartanah tersebut daripada defendan; (d) Sama ada defendan mempunyai kepentingan kaveat ke atas hartanah tersebut; (e) Sama ada defendan mempunyai kebenaran daripada plaintif untuk melakukan kerja-kerja pengubahsuaian struktur bagi hartanah tersebut; S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 (f) Sama ada defendan telah menyebabkan kerugian-kerugian kepada plaintif akibat keengganan defendan untuk mengembalikan milikan kosong bagi hartanah tersebut; (g) Sama ada pembayaran-pembayaran yang telah dilakukan oleh defendan berkaitan dengan hartanah tersebut boleh dianggap sebagai sebahagian daripada jumlah harga jual beli hartanah tersebut. Keputusan Mahkamah 31. Sama ada wujud kontrak jual beli di antara plaintif dan defendan berhubung dengan hartanah tersebut dengan harga jualan sebanyak RM300,000.00. 32. Apabila dikaji keterangan saksi-saksi di hadapan Mahkamah ini, Mahkamah ini berpuas hati tiada fakta yang dibuktikan menjurus kepada fakta bahawa plaintif bersetuju untuk menjual hartanah tersebut pada harga jualan sebanyak RM300,000.00. S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 33. Peguam defendan tidak berjaya menyangkal keterangan plaintif bahawa harga jualan yang ditawarkan adalah sebanyak RM310,000.00. 34. Malahan terbukti jelas plaintif enggan menandatangani perjanjian jual beli bagi harga jualan RM300,000.00. 35. Berakibat dari harga yang tidak dipersetujui, plaintif kembali dengan harga tawaran jualan yang lebih tinggi iaitu RM380,000.00 dan akhirnya RM400,000.00. 36. Mahkamah ini memutuskan wang deposit sebanyak RM5,000.00 yang defendan membuat bayaran kepada plaintif adalah bagi membenarkan defendan memasuki hartanah tersebut. 37. Ianya tidak membuktikan akan jumlah tepat berhubung harga jualan hartanah tersebut yang dimuktamadkan di antara pihak- pihak. S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 38. Di dalam kajian fakta kes, terbukti kesemua pembayaran- pembayaran yang telah dibuat oleh defendan kepada plaintif adalah sehingga tahun 2014. Pada ketika ini pihak-pihak belum ada pertikaian-pertikaian yang teruk di antara pihak-pihak sehinggalah puncak pertikaian wujud bila defendan memasukkan kaveat persendirian pada 5.3.2015. 39. Peguam defendan telah merujuk kepada kes Mahkamah Rayuan Chen Sheau Yang v SMC Healthcare Sdn Bhd [2019] 1 SSLR 247 yang merujuk kepada kes Mahkamah Persekutuan Lim Keng Siong & Anor v Yeo Ah Tee [1983] 1 MLRA 97 yang memutuskan apabila pihak-pihak bersetuju dengan jelas akan terma-terma kontrak, maka bukanlah satu keperluan wajib untuk kontrak tersebut mengikat pihak-pihak hanya setelah disempurnakan pelaksanaan kontrak secara rasmi. 40. Hasil kajian fakta kes di hadapan Mahkamah ini membuktikan keadaan fakta kes di hadapan Mahkamah ini berlainan dengan fakta kes yang dirujuk oleh peguam defendan. S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 41. Di dalam kes di hadapan Mahkamah ini terbukti jelas tidak ada fakta keterangan yang membuktikan fakta bahawa plaintif telah bersetuju dengan harga jualan hartanah tersebut sebanyak RM300,000.00. 42. Oleh yang demikian, adalah diputuskan tiada persetujuan akan terma-terma penting yang membawa kepada satu kontrak yang mengikat pihak-pihak di dalam kes ini. 43. Elemen-elemen di bawah Seksyen 10 dan Seksyen 13 Akta Kontrak 1950 gagal dipenuhi. 44. Sehubungan dengan ini, rujukan dibuat kepada kes Mahkamah Rayuan Ho Hup Construction Company Berhad v Woo Thin Choy [2018] 2 MLRA 321 yang memutuskan seperti berikut: “[43] It was trite that while it was true that the overall burden of proving a civil claim on a balance of probabilities was on the party bringing the action (the plaintiff), a party who alleged or relied upon a S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 particular fact had the onus or responsibility to establish on evidence the existence of that fact. Sections 101, 102 and 103 of the EA (in so far as was material for our decision on this point) were as follows: “Section 101: Burden of proof (1) Whoever desires any court to give judgment as to any legal right or liability, dependant on the existence of facts which he asserts, must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. ILLUSTRATIONS … …” “Section 102: On whom burden of proof of lies S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 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 … …” Section 103: Burden of proof as to particular fact The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person. ILLUSTRATIONS … …” 45. Mahkamah ini membuat dapatan fakta bahawa tidak ada bukti keterangan bahawa wujudnya kontrak yang mengikat plaintif dan S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 defendan sebab harga jualan hartanah tidak pernah dimuktamadkan di antara pihak-pihak. 46. Sama ada pemilik berdaftar hartanah tersebut adalah plaintif. 47. Mahkamah ini memutuskan hartanah tersebut dicagar kepada Public Bank Berhad. 48. Plaintif akan mendapat hak milik strata apabila harga belian hartanah tersebut disempurnakan. Plaintif mempunyai hak sepenuhnya ke atas hartanah tersebut di sisi undang-undang. 49. Sama ada plaintif berhak mendapatkan milikan kosong harta tersebut. 50. Sepanjang perbicaraan penuh di hadapan Mahkamah ini, plaintif tidak pernah mempertikaikan bayaran-bayaran yang dibuat oleh defendan terhadap hartanah tersebut. S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 51. Isu pertikaian adalah berhubung dengan harga jualan hartanah tersebut. 52. Hasil kajian keterangan-keterangan saksi dan dokumentasi tidak membuktikan wujud persetujuan bagi harga jualan hartanah tersebut. 53. Kes Resolution Alliance Sdn Bhd v Binabaik Sdn Bhd & Anor [2014] MLRAU 492 tidak relevan bagi situasi fakta kes di hadapan Mahkamah ini. 54. Di dalam kes di hadapan Mahkamah ini, tiada keterangan fakta bahawa defendan bersedia untuk menyelesaikan jumlah hutang bagi hartanah tersebut, atau pun telah habis membayar bagi hartanah tersebut. 55. Malahan tindakan defendan yang memberhentikan bayaran ansuran pinjaman perumahan hartanah tersebut ke Public Bank Berhad sejak penerimaan saman bagi kes ini, mengukuhkan S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 kenyataan bahawa defendan tiada sebarang hak pemilikan berfaedah. 56. Sama ada defendan mempunyai kepentingan kaveat ke atas hartanah tersebut. 57. Sehubungan dengan isu ini, Mahkamah memutuskan hak memasuki kaveat adalah hak mana-mana pihak yang mendapati ada keperluan berbuat demikian. 58. Hak tersebut akan ditentukan apabila keputusan muktamad dibuat di akhir kes ini. 59. Sama ada defendan mempunyai kebenaran daripada plaintif untuk melakukan kerja-kerja pengubahsuaian yang membabitkan struktur dalaman hartanah tersebut. 60. Adalah jelas dari keterangan-keterangan saksi di Mahkamah, plaintif mengizinkan defendan membaiki kerosakan di dalam hartanah tersebut. S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 61. Tidak ada keterangan fakta yang membuktikan plaintif telah mengizinkan pengubahsuaian hartanah tersebut yang merangkumi struktur hartanah tersebut. 62. Adalah terbukti dalam keterangan saksi defendan ketiga, sewaktu plaintif melawat beliau di hartanah tersebut dinding bersama belum dipecahkan. Ianya setakat rancangan. 63. Oleh itu, adalah wajar bagi pihak defendan mendapat kebenaran plaintif untuk mengambil tindakan susulan. 64. Kegagalan defendan secara khusus mendapat kebenaran bukan saja dari plaintif tetapi juga pihak berkuasa tempatan tidak menjustifikasikan tindakan defendan tersebut. 65. Dalam konteks ini, dapatan fakta oleh Mahkamah adalah plaintif memberi kebenaran setakat membaiki kerosakan-kerosakan di hartanah tersebut sahaja. S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 66. Sama ada defendan menyebabkan kerugian-kerugian kepada plaintif akibat keengganan defendan mengembalikan milikan kosong hartanah tersebut. 67. Defendan telah memberhentikan bayaran ansuran bulanan kepada pihak bank setelah menerima saman kes ini. 68. Oleh yang demikian, plaintif terpaksa membuat penjadualan semula dengan pihak bank bagi pembayaran ansuran bulanan pinjaman bagi hartanah tersebut. 69. Keterangan dikemukakan di mana plaintif terpaksa menanggung kadar faedah dan juga penalti akibat tunggakan bayaran ansuran bulanan pinjaman perumahan bagi hartanah tersebut. 70. Keterangan plaintif berhubung fakta ini tidak tercabar. 71. Justeru, keterangan fakta plaintif berhubung perkara tersebut diterima. S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 72. Sama ada pembayaran-pembayaran yang telah dilakukan oleh defendan berkaitan hartanah tersebut boleh dianggap sebagai sebahagian daripada jumlah harga pembelian hartanah tersebut. 73. Adalah terbukti plaintif dan defendan tidak mencapai persetujuan bagi harga jualan hartanah tersebut. 74. Segala bayaran yang dibuat oleh defendan adalah merupakan syarat-syarat yang pihak-pihak setuju. Malangnya syarat penting yang tidak dipersetujui adalah harga jualan bagi hartanah tersebut yang membawa kepada kegagalan pihak-pihak menyempurnakan perjanjian jual beli. 75. Oleh kerana harga jualan bagi hartanah tersebut gagal dipersetujui, maka Mahkamah ini memutuskan segala bayaran yang defendan buat berhubung dengan hartanah tersebut bukanlah sebahagian daripada jumlah harga jual beli hartanah tersebut. S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 76. Kajian kesemua keterangan-keterangan yang dikemukakan di Mahkamah menjurus kepada pembuktian kes plaintif terhadap defendan di atas imbangan kebarangkalian. 77. Bagi tindakan tuntutan balas defendan tersebut, Mahkamah memutuskan memandangkan defendan gagal membuktikan wujudnya kontrak jual beli hartanah tersebut, maka tuntutan balas yang memohon relif-relif pelaksanaan spesifik tidak dibenarkan. 78. Segala pembayaran iaitu bayaran ansuran bulanan pinjaman bank, bayaran wang deposit kepada plaintif, bayaran tunggakan cukai pintu hartanah tersebut, bayaran yuran penyelenggaraan dan bayaran utiliti telahpun diputuskan sebagai syarat-syarat bagi pembelian hartanah tersebut yang dipersetujui. 79. Defendan tidak berjaya membuktikan kos bagi kerja-kerja pengubahsuaian yang dibuat bagi hartanah tersebut. 80. Kontraktor-kontraktor yang membuat kerja-kerja tersebut tidak dipanggil untuk membuktikan tuntutan defendan. S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 81. Kos penyediaan perjanjian jual beli tidak dibenarkan sebab tidak ada keperluan untuk penyediaan perjanjian jual beli di mana harga jualan hartanah tersebut tidak dipersetujui di antara pihak-pihak. 82. Gantirugi-gantirugi yang lain tidak dibenarkan sebab tidak dibuktikan. Kesimpulan 83. Tuntutan plaintif terhadap defendan dibenarkan di perenggan 33 Penyata Tuntutan seperti berikut: (a) Defendan menyerahkan milikan kosong bagi hartanah yang dikenali sebagai Unit B9-3, No. Tingkat: L9, No. Bangunan: B3, City Garden Palm Villa Kondominium yang dipegang di bawah hak milik PM 3916, Lot 40295, Seksyen 16, Bandar Ampang, Tempat: Batu 5, Jalan Ampang, Daerah Hulu Langat, Negeri Selangor Darul Ehsan yang dahulunya dipegang di bawah hak milik HSM 29688, PT S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 30441, Mukim Ampang, Daerah Hulu Langat, Negeri Selangor Darul Ehsan selewat- lewatnya pada 31.12.2023; (b) Suatu perintah Kaveat Persendirian No. Perserahan 1165/2015 yang didaftarkan oleh defendan diketepikan, selewat-lewatnya pada 31.12.2023; (c) Suatu perintah bahawa defendan membayar plaintif keseluruhan jumlah tunggakan bayaran ansuran selepas penjadualan semula pinjaman tersebut dibuat bagi sepanjang tempoh defendan menduduki hartanah tersebut sehingga tarikh milikan kosong dibuat, selewat-lewatnya pada 31.12.2023; (d) Suatu perintah bahawa defendan hendaklah melangsaikan keseluruhan jumlah tunggakan bayaran penyelenggaraan dan/atau utiliti S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 hartanah tersebut bagi sepanjang tempoh defendan menduduki hartanah tersebut sehingga tarikh milikan kosong dibuat, selewat-lewatnya pada 31.12.2023; (e) Suatu perintah bahawa defendan hendaklah melangsaikan keseluruhan jumlah tunggakan bayaran bil elektrik dan bil air bagi hartanah tersebut bagi sepanjang tempoh defendan menduduki hartanah tersebut sehingga tarikh milikan kosong dibuat, selewat-lewatnya pada 31.12.2023; (f) Suatu perintah bahawa defendan hendaklah melangsaikan keseluruhan jumlah tunggakan bayaran bil perkhidmatan pembentungan hartanah tersebut bagi sepanjang tempoh defendan menduduki hartanah tersebut sehingga tarikh milikan kosong dibuat, selewat-lewatnya pada 31.12.2023. S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 (g) Tuntuan balas defendan ditolak; (h) Kos perbicaraan ditanggung oleh pihak masing- masing. Tarikh: 23 November 2023 (INDRA NEHRU SAVANDIAH) Pesuruhjaya Kehakiman Mahkamah Tinggi Malaya Shah Alam Tarikh keputusan: 29 September 2023 Peguam-Peguam: Bagi pihak plaintif: Azmi Talib, [Tetuan Zabir Imran & Partners] Bagi pihak defendan: Muhammad Nor bin Tamrin, [Tetuan Aidil Effendy Azmi & Co.] S/N JJgHyPr0j0u2QyxbbLQFjw **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

JA-37G-27-07/2023

PLAINTIF LIM HUN SWEE DEFENDAN LEE KWEE HIANG

Sama ada permohonan Pemiutang Penghakiman untuk perintah garnisi menunjuk sebab wajar dibenarkan-sama ada Pemiutang Penghakiman memenuhi keperluan dinyatakan dalam Aturan 49 Kaedah-kaedah Mahkamah 2012

22/11/2023

Tuan Arun A/L Noval Dass

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=ea051516-3da3-47ba-b7fe-7f310766c056&Inline=true

1 DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA PERMOHONAN PELAKSANAAN NO. JA-37G-27-07/2023 ANTARA LHS … PEMIUTANG PENGHAKIMAN/ PLAINTIF DAN LKH … PENGHUTANG PENGHAKIMAN/ DEFENDAN ---------------------------------------------------------------------------------------------------- ALASAN PENGHAKIMAN ---------------------------------------------------------------------------------------------------- 22/11/2023 13:38:58 JA-37G-27-07/2023 Kand. 6 S/N FhUF6qM9uke3/n8xB2bAVg **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Pengenalan 1. Pemiutang Penghakiman (selepas ini dirujuk sebagai JC) telah memperolehi dua penghakiman terhadap Penghutang Penghakiman (selepas ini dirujuk sebagai JD) di Mahkamah Tinggi Johor Bahru pada tahun 2023. 2. Selaras penghakiman-penghakiman tersebut, JD masih berhutang dengan JC bagi sejumlah hutang. Peguam JC telah mengeluarkan surat tuntutan bertarikh 20 Julai 2023 kepada peguam JD untuk menuntut jumlah terhutang dan merizabkan hak untuk memulakan sebarang tindakan pelaksanaan sekiranya tuntutan JC tidak dipenuhi dalam tempoh 7 hari dari tarikh surat tuntutan tersebut. 3. Memandangkan JD tidak memenuhi tuntutan JC, JC memulakan prosiding garnisi terhadap JD. Pada tarikh bicara ex-parte yang pertama pada 10 Ogos 2023, JC telah memaklumkan Mahkamah bahawa JD tidak pernah merayu terhadap keputusan Mahkamah Tinggi dan tiada sebarang perintah penggantungan terhadap keputusan Mahkamah Tinggi tersebut. S/N FhUF6qM9uke3/n8xB2bAVg **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 Analisis dan keputusan Mahkamah 4. JC berhujah bahawa perkataan “shall” dalam Aturan 49 Kaedah 2 KKM hanya membawa kesan kepada perkataan-perkataan yang sejurus kepadanya (“immediately after the words”) tetapi bukan kepada perenggan seterusnya iaitu kaedah 2(b). Mahkamah tidak bersetuju dengan hujahan JC tersebut. Aturan 49 Kaedah 2 memperuntukkan secara spesifik bahawa:- “2. Application for order (O. 49 r. 2) An application for an order under rule 1 shall be made ex parte by a notice of application supported by an affidavit in Form 98- (a) identifying the judgment or order to be enforced and stating the amount remaining unpaid under it at the time of the application; and (b) stating that to the best of the information or belief of the deponent the garnishee (naming him) is within the jurisdiction and is indebted to the judgment debtor and stating the sources of the deponent's information or the grounds for his belief.” 5. Peruntukan tersebut dengan jelas menunjukkan bahawa permohonan garnisi hendaklah disokong dengan afidavit dan afidavit tersebut hendaklah mengandungi perkara-perkara yang dinyatakan dalam perenggan 2(a) dan (b) tersebut. Kewujudan koma bertitik (semicolon) dan diikuti dengan perkataan “and” dalam peruntukan tersebut menunjukkan kedua-dua perkara dalam perenggan (a) dan (b) wajib dimasukkan dalam Afidavit Sokongan. Dalam hal ini, Mahkamah merujuk kepada kes Barakah Offshore Petroleum Berhad & Anor v Mersing Construction Sdn Bhd & Ors [2019] MLJU 338; [2019] 1 LNS 551; [2019] 5 MLRH 655; [2019] 3 AMR 673 di mana Mahkamah memutuskan bahawa:- S/N FhUF6qM9uke3/n8xB2bAVg **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 “[68] For completeness, it should also be stated that it cannot be the legislative intent that only section 368(2)(a) and (d) need be complied with when applying for a restraining order. The conditions under section 368(2)(a) to (d) need all be complied with. To hold otherwise, would do violence to the manner in which section 368(2)(a) to (d) are drafted. It would call, unjustifiably, for ignoring the fact that the conditions set out in section 368(2)(a) to (d) are cumulative, having regard to the semicolon after each subsection and the use of the conjunction "and" placed between section 368(2)(c) and (d).” 6. Mahkamah juga merujuk kepada kes Malaysian International Trading Corporation Sdn Bhd v RHB Bank Bhd [2016] 2 MLJ 457; [2016] 2 CLJ 717; [2016] 2 MLRA 175; [2016] 2 AMR 133 di mana Mahkamah Persekutuan merumuskan undang-undang berkaitan sesuatu permohonan garnisi di bawah Aturan 49 Kaedah-kaedah Mahkamah Tinggi 1980 (yang berkuatkuasa ketika itu) yang in pari materia dengan Kaedah-kaedah Mahkamah 2012 (selepas ini dirujuk sebagai “KKM”), seperti berikut:- “[30] In a nutshell, O. 49 r. 1 of the RHC entitles a successful judgment creditor to enforce a money judgment, and may require a third party who owes the JD, to pay to the judgment creditor the amount of debt due or accruing to the judgment debtor. This provision enables a judgment creditor to have the benefit of any debt owed by a third person (a 'stranger') to the judgment debtor to be assigned to the judgment creditor (Dictionary of Law, 4th Edn, LB Curzon, Barrister; Manitoba Law Reform Commission December 2005 p. 1). [31] In order to take advantage of O. 49 of the RHC the judgment creditor must have obtained a money judgment or order against a judgment debtor ie, of a decision given by a court of law or other competent tribunal, as a result of a legal proceeding therein. A judgment or order on the other hand does not include a judgment or order for the payment of money into court. [32] The judgment creditor then identifies a third party ie the potential garnishee who is indebted to the judgment debtor. That debt must relate to any debt due or accruing due to the judgment debtor. Thereafter the judgment creditor initiates the garnishment proceedings for the purpose of reaching the property of the JD held or owed by that third party. S/N FhUF6qM9uke3/n8xB2bAVg **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 [33] Procedurally, garnishee proceedings begins with the filing of an ex parte notice of application, supported by an affidavit in Form 98 (O. 49 r. 2 ). The affidavit will identify the judgment or order to be enforced, the amount remaining unpaid under the judgment or order at the time of the application, with the garnishee identified, and the applicant stating his belief that the garnishee is within the jurisdiction and is indebted to the judgment debtor…” 7. Dalam hal ini, sebagaimana diputuskan dalam kes yang tersebut di atas, salah satu keperluan yang perlu dipenuhi JC dalam pendengaran garnisi ex-parte adalah JC perlu mengenalpasti garnisi yang berhutang dengan JD yang berada dalam bidang kuasa Mahkamah bicara, dan perlu menyatakan sumber maklumat bagi kepercayaan JC tersebut. 8. Perkataan “shall” yang digunakan dalam peruntukan tersebut menunjukkan keperluan JC untuk identifikasi garnisi yang berhutang dengan JD dan keperluan untuk menyatakan sumber bagi kepercayaan JC tersebut adalah keperluan mandatori. Dalam hal ini, Mahkamah merujuk kepada kes Low Cheng Soon v TA Securities Sdn Bhd [2003] 1 MLJ 389; [2003] 1 CLJ 309; [2002] 2 MLRA 298; [2003] 2 AMR 287 di mana Mahkamah Rayuan memutuskan bahawa:- “There is no doubt in our minds and we agree with learned counsel for the respondent that this rule is mandatory. There are abundant authorities decided in our courts to suggest that the word 'shall' when used in any legislation means 'obligatory'. However we do not propose to cite these authorities. Suffice it for us to say that the word 'shall' used in r. 18(4)(c) of the Rule reflects a measure of mandatoriness in it. As this is a mandatory rule it must therefore be strictly adhered to.” S/N FhUF6qM9uke3/n8xB2bAVg **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 9. Berdasarkan nas di atas, penelitian Mahkamah kepada Afidavit Sokongan JC menunjukkan bahawa JC tidak memenuhi keperluan Aturan 49 Kaedah 2 tersebut di atas apabila mendeposkan seperti berikut:- “Pemiutang Penghakiman yang dinamakan di atas tidak mempunyai pengetahuan mengenai mana-mana akaun Bank Penghutang Penghakiman tersebut. Saya telah dinasihatkan dan sesungguhnya mempercayai bahawa Penghutang Penghakiman tersebut mempunyai akaun-akaun bank di Malaysia. Saya dinasihatkan oleh peguamcara Pemiutang Penghakiman dan sesungguhnya mempercayai bahawa Mahkamah yang Mulia ini mempunyai kuasa di bawah undang-undang sedia ada untuk memberi perintah pendedahan supaya apa-apa wang yang dipegang oleh Penghutang Penghakiman di dalam mana-mana akaun bank boleh digarnis untuk tujuan menjelaskan hutang.” 10. Apabila Mahkamah memohon klarifikasi dari peguam JC sama ada JC gagal mematuhi peruntukan Aturan 49 Kaedah 2 KKM, JC telah mengakui bahawa JC tidak dapat mengenalpasti akaun bank yang dipegang oleh JD, namun JC berhujah perkara tersebut tidak memprejudiskan mana-mana pihak kerana sekiranya JD tidak mempunyai akaun di Bank tersebut, maka Bank berkaitan akan mengesahkan perkara tersebut melalui surat. Peguam JC seterusnya merujuk kepada kes Tesco Stores (Malaysia) Sdn Bhd v Ananda Kumar Krishnan [2018] 6 MLJ 261; [2017] 5 CLJ 315; [2017] 5 MLRA 616; [2017] 4 AMR 1 di mana Mahkamah Rayuan memutuskan bahawa:- S/N FhUF6qM9uke3/n8xB2bAVg **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 “[5]Order 49 is a recognised summary procedure for a judgment creditor (JC) to attach debt due or accruing but not due, owed to the JD by some other person often referred to as garnishee. That is to say, if the garnishee is obliged to pay the money to the JD, that sum can be attached by garnishee proceeding. It will relate to debts due or accrued. However, garnishee proceedings has been widely used to attach deposits and cash in bank accounts, etc. as provided for in O. 49 r. 1(3), and such attachment procedure is quite straight forward in contrast to determining whether or not there is a debt due or accrued…. [7] What is significant of O. 49 is that it gives a wide discretion to the court to determine summarily or by way of hearing, attaching less significance to the Evidence Act or full trial procedure. What the court is required to make is orders which it thinks is just. That is to say, O. 49 r. (1) does not impose on the garnishor or garnishee to establish the case on the balance of probabilities. Order 49 r. 1 gives the court the discretion to decide the matter. Order 49 is a rule relating to discretionary power of the court…” 11. Dengan merujuk kepada kes tersebut di atas, peguam JC berhujah bahawa memandangkan JC telah membuktikan bahawa terdapat hutang berdasarkan penghakiman yang belum diselesaikan oleh JD, maka Mahkamah seharusnya mengeluarkan perintah garnisi menunjuk sebab yang dipohon JC. 12. Mahkamah mendapati tiada di mana-mana dalam penghakiman tersebut yang membenarkan Mahkamah untuk bertindak secara mekanikal dalam mengeluarkan sebarang perintah secara automatik tanpa mengendahkan keperluan mandatori di bawah Aturan 49 Kaedah 2 KKM. Mahkamah mendapati seharusnya terdapat sebab tertentu bagi Jawatankuasa Penggubal untuk mewujudkan keperluan dalam peruntukan tersebut sebagaimana diputuskan dalam kes Low Cheng Soon (supra) seperti berikut:- S/N FhUF6qM9uke3/n8xB2bAVg **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 “In our judgment, the importance of the Rules of Court cannot be ignored as otherwise the courts will be faced with endless problems involving the administration of justice. Speaking of the importance of the Rules of Court, the learned judge, Chang Min Tat J (as he then was) in Yu Oi Yong & Anor v. Ho Toong Peng & Ors [1976] 1 LNS 174; [1977] 1 MLJ 120 had this to say (at p. 121): There should, in my view, be some adherence to the rules of court, unless required by circumstances, if there is to be any meaning or purpose in such rules. It should, I think, be realised by practitioners as well as by judges that while strict and slavish adherence to forms and rules can sometimes hinder the administration of justice, these forms and rules should not be disregarded for no reason whatsoever, since they embody the experience of the courts over the years in the cause of speedy and efficient administration of justice.” 13. Tertutamanya, asas kepada pembentukan kaedah untuk JC mendeposkan kepercayaan orang digarnis berhutang dengan penghutang penghakiman dan sumber maklumat atau alasan bagi kepercayaan tersebut dalam Afidavit Sokongan telah dijelaskan dalam kes Ringgit Exoticka Sdn Bhd v Pengarah Tanah & Galian Selangor & Ors [2014] 8 MLJ 111; [2013] 10 CLJ 663; [2013] MLRHU 316 seperti berikut:- “[28] As a general rule, hearsay evidence is inadmissible and the court will not admit any hearsay evidence or give it any weight. In the same vein, an affidavit relied upon as evidence in support of an application should only contain facts which are within the personal knowledge of the deponent. Personal knowledge may be derived from records or documents seen by the deponent (United Malayan Banking Corporation v. Yap Peng Wai @ Yap Peng Hooi [1997] 1 LNS 282; [1998] 5 MLJ 511; Abd Hamid Jaafar v. Shamsiah dan Keluarga Sdn Bhd [2004] 5 CLJ 381; [2004] 5 MLJ 349). S/N FhUF6qM9uke3/n8xB2bAVg **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 [29] There are, however, a number of exceptions to this personal knowledge rule as contained in the Rules of Court 2012. Briefly, the exception relates to the following matters:… (iv) Application for a garnishee order O. 49 r. 2 permits an application to be supported by an affidavit containing statements of information or belief that the garnishee is within the jurisdiction and indebted to the judgment debtor if the sources for such information or grounds for belief are stated. [30] Therefore, an affidavit which is based on information and belief but is not stated to be so and which fails to disclose the sources and grounds will be disallowed in evidence (Mohamad Hassan & Ors v. Dewan Bandaraya Kuala Lumpur & Anor [2002] 1 CLJ 290; [2001] 4 MLJ 423; Pacific Inter-Link Sdn Bhd v. Pemilik Kapal atau Vesel "Makatsarija" [2000] 2 CLJ 679). It follows that hearsay evidence which do not disclose the sources and grounds will not be accorded any probative value (Dynacast (S) Pte Ltd v. Lim Meng Siang & Ors [1989] 2 CLJ 1116; [1989] 2 CLJ (Rep) 900; [1989] 3 MLJ 456; [1989] SLR 840).” 14. Mahkamah juga merujuk kepada Malaysian Civil Procedure 2021, Volume 1 yang memperuntukkan bahawa:- “An application for an order in the first instance, which is the "order to show cause” spoken of in Order 49 r 1(2) need only be applied for ex parte via a notice of application with a supporting affidavit in Form 98 deposed by the judgment creditor or someone possessing the sources of the information and the grounds of belief that the garnishee is within the jurisdiction and is indeed indebted to the judgment debtor. The application need not specify the sum of indebtedness by the garnishee to the judgment debtor and it is sufficient to state the account available only…” 15. Dalam hal ini, Mahkamah berpendapat bahawa kegagalan JC untuk mematuhi keperluan mandatori tidak boleh diremedi menurut Aturan 1A KKM di mana Mahkamah Persekutuan dalam kes DYMM Tuanku Ibrahim Ibni Sultan Iskandar Al-Haj v Datuk Captain Hamzah B Mohd Noor [2009] 4 MLJ 149; [2009] 4 CLJ 329; [2009] 1 MLRA 528; [2009] 5 AMR 298 memutuskan bahawa:- S/N FhUF6qM9uke3/n8xB2bAVg **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 "[46] The technical non-compliance of any rule may be remedied where there is an accidental omission or oversight by a party. A general provision such as O. 1A RHC is for the court or judge to give heed to justice over technical non- compliance. It must not supersede a mandatory requirement of the Rules. O. 1A RHC cannot be invoked when a party intentionally disregards in complying with the Rules. Otherwise, parties would be encouraged to ignore the Rules. Thus In this case, O. 1A RHC does not apply as the respondents had intentionally disregarded O. 6 r. 7 (2 A) RHC for their own reasons... [48] In the context of the Rules of the High Court 1980 the phrase "... technical non-compliance... is thus a reference to non-compliance with a rule which is not fundamental or mandatory in nature." 16. Mahkamah tidak terlepas pandang berkenaan permohonan peguam JC yang memohon Mahkamah menggunakan kuasa sedia ada untuk membuat pendedahan akaun-akaun JD dalam prosiding garnisi. Undang-undang adalah mantap bahawa Aturan 92 Kaedah 4 KKM yang memberi kuasa sedia ada kepada Mahkamah hanya boleh digunakan dalam keadaan yang terkecuali yang memerlukan Mahkamah memberi relif yang bersesuaian apabila tiada peruntukan dalam undang-undang spesifik yang dapat memberi relif sewajarnya kepada Pemohon. Dalam hal ini, Mahkamah merujuk kepada kes Bank Kerjasama Rakyat (M) Berhad v Koperasi Serbaguna Iman Malaysia Berhad; Maybank Islamic Berhad & Ors (Garnishees) [2023] MLJU 83; [2023] 1 LNS 45; [2023] MLRHU 37; [2023] AMEJ 0054 di mana Mahkamah memutuskan bahawa:- “[30] The JC here is imploring upon the Court to grant a relief, by making the Retransfer Order, to do something which is not provided by legislature. Given that legislature has not provided for such a relief to be granted, the Court will be circumspect in using its inherent power to prevent the prevent injustice and abuse of process as the JC so claims. In R Rama Chandran v. The Industrial Court of Malaysia & Anor [1997] 1 CLJ 147; [1997] 1 MLJ 145, the Federal Court (per Wan Yahya FCJ) observed as follows: S/N FhUF6qM9uke3/n8xB2bAVg **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 "Inherent powers as contained in O. 92 r. 4 are indispensible implements for use of the courts to prevent injustice or any abuse of the process of the Court. But the powers themselves stand to be abused if they were to be exercised without circumspection by the courts. The Court would undoubtedly use them in cases where Parliament had omitted to provide in the Act something so glaring which obviously ought to have been there. But on no account should these powers be used to defeat the intention of the legislature, especially so when it had deliberately excluded the use of such particular remedy from any legislation (see p 219G—H); Duport Steels Ltd & Ors v. Sirs & Ors [1980] 1 WLR 142 followed." [31] It is with this great circumspection that I considered whether I could exercise the inherent jurisdiction of the Court in making the Retransfer Order sought by the JC. [32] I accept that the Court's inherent power under O. 92 r. 4 ROC 2012 is only available if there is no law which provides for the relief that is prayed for. This was stated in R Rama Chandran v. The Industrial Court of Malaysia & Anor [supra ]…” 17. Dalam hal ini, Mahkamah berpendapat bahawa Aturan 48 KKM memperuntukkan kaedah spesifik antara lain untuk seseorang pemiutang penghakiman untuk mengenal pasti aset atau harta yang dipegang oleh seseorang penghutang penghakiman melalui pemeriksaan penghutang penghakiman secara lisan, sebelum pemiutang penghakiman memutuskan untuk mengambil sebarang tindakan pelaksanaan yang bersesuaian berdasarkan maklumat yang diperolehi semasa prosiding tersebut. Dalam menjelaskan perkara ini, Mahkamah dalam kes Kwek Seow Kee & Anor v KT Packaging Sdn Bhd (No.2) [1998] MLJU 77; [1998] 3 CLJ SUPP 244; [1998] 1 MLRH 425 memutuskan bahawa:- “The sting of O. 48 of the RHC is to provide a process for the examination of the judgment debtor so as to gather information as to his means of paying the judgment and flowing from it the judgment creditor will be able to determine the appropriate mode of enforcement. The process of examination would certainly come in handy as it would confirm and supplement any existing information S/N FhUF6qM9uke3/n8xB2bAVg **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 which the judgment creditor might have by allowing him to obtain additional or new information which may be available for the sole purpose of enforcement. It is a matter of course that the court will make an order for examination of a judgment debtor as it is the judgment creditor's right to enforce the judgment or order which he has obtained. The judgment creditor is entitled to enjoy the fruits of his labour….Of course, at the hearing under O. 48 of the RHC, the judgment creditor must be fully prepared to cross-examine the judgment debtor on all matters under the sky, so to speak, concerning the debts owed and the assets owned ( Republic of Costa Rica v. Strousberg (supra )). Now, the judgment debtor too may be examined on the property which he owns in a foreign jurisdiction… The language employed in O. 48 of the RHC do not bar this court, if circumstances justify it, to embark on an inquiry as to the judgment debtor's foreign property to aid in its enforcement process particularly if there is a chance that the proceeds of that foreign property may be transferred to the judgment creditor's own jurisdiction in the future. The inquiry may even reveal juicy details, hitherto unknown, about the judgment debtor's property within the jurisdiction. In the context of this case, a link between a bank in Johor Bahru with a bank in Singapore, for instance. Thus, this court has the jurisdiction to restrain a judgment debtor from transferring or disposing of his assets within or outside the jurisdiction ( Babanaft International Co v. Bassatne[1989] 2 WLR 232 ). This court too has the inherent power to summarily order the judgment debtor to file and serve an affidavit disclosing all assets wherever situated or kept ( Maclaine Watson & Co Ltd v. International Tin Council (No. 2)[1988] 3 WLR 1190 ). In the examination conducted under O. 48 of the RHC, if the judgment debtor refuses to answer questions put to him, the judgment creditor has an option to apply for an order of committal against the judgment debtor. This would be a sure way of ensuring compliance by the judgment debtor.” 18. Maka, Mahkamah berpendapat bahawa permohonan JC untuk mendapatkan pendedahan maklumat akaun-akaun JD melalui prosiding garnisi dengan mengungkitkan bidang kuasa sedia ada Mahkamah adalah penyalahgunaan proses Mahkamah kerana terdapat prosedur khusus di bawah Aturan 48 KKM yang boleh digunakan JC bagi tujuan yang sama. S/N FhUF6qM9uke3/n8xB2bAVg **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 19. Di samping itu, Mahkamah juga berpendapat bahawa adalah juga bertentangan dengan peruntukan undang-undang perbankan (seksyen 133 dan 134 Akta Perkhidmatan Kewangan 2013) dan seksyen 39 Akta Perlindungan Data Peribadi 2010 yang mengutamakan kerahsiaan maklumat seseorang pemegang akaun melainkan didedahkan atas kehendak undang-undang atau perintah Mahkamah yang sah. Sebagaimana dibincangkan di atas, Mahkamah dapati tiada sebarang kuasa diberikan kepada Mahkamah untuk membuat pendedahan akaun-akaun JD dalam prosiding garnisi menurut Aturan 49 KKM. 20. Dalam hal ini, Mahkamah merujuk kepada kes Tan Cheow Yen v Yap Kar Wai & Anor and Another Case [2019] 1 LNS 1064 di mana Mahkamah memutuskan bahawa:- “(4) The plaintiff's affidavit-in-support failed to state the source of information or grounds or belief that the 1st JD has monies in the 1st JD's account in the bank bearing in mind that under the secrecy provisions contained in the banking law it is an offence for any person to disclose this information to any person other than the officer or clerk of the bank disclosing this information to the 1st JD; (5) Hence, there was no full and frank disclosure on the JC's part in his affidavit-in- support of the garnishment proceeding due to his failure to state the source of his information concerning the monies in the 1st JD's account in the bank; (6) The failure of the JC to make this full and frank disclosure in his affidavit-in- support of the garnishment proceeding is fatal; (7) To decide otherwise would be tantamount to condoning the disclosure of confidential banking information by bank officers or clerks who are not authorized to do so to a person or persons other than the account holder and this would be contrary to public policy; (8) On this ground alone, enclosure (20) ought to be allowed” S/N FhUF6qM9uke3/n8xB2bAVg **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 Pemfailan Afidavit Tambahan oleh JC 21. Pada tarikh bicara pertama pada 10 Ogos 2023, memandangkan Mahkamah tidak berpuas hati dengan kandungan Afidavit Sokongan JC yang menyokong permohonan JC, Mahkamah telah memberi peluang kepada JC untuk memfailkan hujahan bertulis untuk JC berhujah lanjut sama ada permohonan JC mematuhi keperluan Kaedah-kaedah Mahkamah sebagaimana dibincangkan di atas. JC diarahkan untuk memfailkan hujahan bertulis sebelum 30 Ogos 2023. 22. Namun, tanpa mematuhi arahan Mahkamah untuk JC memfailkan hujahan bertulis, JC memfailkan Afidavit Tambahan pada 29.8.2023 tanpa kebenaran Mahkamah. Mahkamah dapati Afidavit Tambahan tersebut adalah untuk merektifikasi kekurangan dalam Afidavit Sokongan JC yang telah digariskan oleh Mahkamah pada tarikh pertama pada 10.8.2023. Undang-undang adalah mantap bahawa kebenaran Mahkamah seharusnya diperolehi terlebih dahulu sebelum memfailkan Afidavit Tambahan untuk mengatasi sebarang kekurangan dalam Afidavit Sokongan. Dalam hal ini, Mahkamah merujuk kepada kes Choo Foong Yin v Lee Chu Fuk [2021] 1 LNS 2087 di mana Mahkamah memutuskan bahawa:- “[27] As for amendment of an affidavit, the rules are silent on corrective and supplemental affidavits, they have in practice been used and accepted by the courts: Perbadanan Nasional Insurance Sdn Bhd v. Pua Lai Ong [1996] 3 CLJ 321; [1996] 3 MLJ 85, CA; and Multi-Purpose Credit Sdn Bhd v. Tan Sri Dato' Paduka (Dr) Ting Pek Khing [2006] 6 CLJ 205; [2006] AMEJ 0060 (supplemental affidavit to correct amount claimed in summary judgment application). Leave is required to file a corrective affidavit (Voon Mow Chen v. Menteri Dalam Negeri & Anor [1993] 4 CLJ 195; [1993] 2 AMR). Errors or mistakes in affidavits may be rectified by supplementary affidavit. The order to file such affidavits may be S/N FhUF6qM9uke3/n8xB2bAVg **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 made at any stage of the proceedings, either on the Court's own motion or application. Still, the Court rarely interferes by exercising its power to compel a party to amend as this runs counter to its generally non-interventional role in civil proceedings (Sarjudin bin Haji Bahri v. Punca Klasik Sdn Bhd & Anor [1997] 2 CLJ SUPP 481; [1997] AMEJ 0003; [1997] MLJU 346)” 23. Tanpa mengambil kira hal tersebut, bagi kesempurnaan, Mahkamah akan menilai kandungan Afidavit Tambahan tersebut dalam menilai permohonan JC dalam Lampiran 1. Mahkamah merujuk kepada perenggan 4 Afidavit Tambahan yang menyatakan seperti berikut:- “Sebagai tambahan, saya menyatakan bahawa sebagaimana diplidkan di dalam pernyataan tuntutan, bagi tujuan pembayaran balik pinjaman peribadi tersebut, Defendan telah mendepositkan kepada saya 3 cek di mana cek-cek tersebut telah ditolak apabila dikemukakan untuk ditunaikan di bank. `Bersama-sama ini dilampirkan cek-cek yang diberikan kepada saya dan ditanda ‘LHS-2’ sebagai eksibit.” 24. Semakan Mahkamah kepada eksibit LHS-2 tersebut menunjukkan bahawa JC sememangnya telah mengetahui kewujudan cek-cek tersebut seawal tahun 2022 iaitu sebelum pemfailan tindakan garnisi di Mahkamah ini. Namun, semasa memfailkan permohonan garnisi di Mahkamah ini, JC telah mendeposkan seperti berikut:- “Pemiutang Penghakiman yang dinamakan di atas tidak mempunyai pengetahuan mengenai mana-mana akaun Bank Penghutang Penghakiman tersebut…” 25. Mahkamah dapati JC telah mengambil pendirian bertentangan dalam kedua-dua afidavit tersebut iaitu dalam Afidavit Sokongan, telah mendeposkan bahawa ia tidak mempunyai pengetahuan mengenai sebarang akaun bank yang dimiliki JD dan seterusnya dalam Afidavit Tambahan pula, mendedahkan tentang akaun JD di sebuah bank, yang ternyata bercanggah antara satu sama lain. Undang-undang adalah mantap bahawa seseorang litigant tidak seharusnya dibenarkan untuk mengambil pendirian bertentangan dalam satu S/N FhUF6qM9uke3/n8xB2bAVg **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 tindakan yang sama. Dalam hal ini, Mahkamah merujuk kepada kes Liew Choong Kin v Pengarah Jabatan Ketua Pengarah Tanah dan Galian (Persekutuan) Wilayah Persekutuan Kuala Lumpur [2018] 11 MLJ 339; [2018] 7 CLJ 82; [2018] 2 AMR 596; [2018] MLRHU 1956 di mana Mahkamah memutuskan bahawa:- "It is a general principle of law that a party cannot adopt different positions in the same suit: it cannot blow "hot and cold" i.e, it cannot be approbate and reprobate (see Cheah Theam Kheng lwn. City Centre Sdn Bhd (In Liquidation) & Other Appeals [2012] 2 CLJ 16 CA; [2012] 1 AMCR 369; [2012] 1 MLJ 761; Express Newspapers Pic v. News (UK) Ltd And Others [1990] 3 All ER 376)." 26. Di samping itu, tindakan JD dalam mendedahkan akaun JD yang telah diketahui JC sebelum pemfailan permohonan garnisi, hanya dalam Afidavit Tambahan dan bukannya Afidavit Sokongan menunjukkan bahawa JC telah tidak membuat pendedahan penuh dan terbuka semasa membuat permohonan ex-parte di Mahkamah ini. Dalam hal ini, Mahkamah merujuk kepada kes Castle-Inn v Bumiputera Commerce [2009] 1 MLJ 542; [2009] 2 CLJ 445; [2008] 3 MLRA 249; [2008] 6 AMR 541 di mana Mahkamah memutuskan bahawa:- "[23] A similar sentiment was shown by Steve Shim J (later CJ (Sabah and Sarawak)) in Yeoh Kee Aun, at p 514 to the effect that where there is a failure to disclose material facts within his knowledge in an ex parte application by a party or where there is any material misrepresentation, it will result in the court setting aside the ex parte order obtained. [24] I would respectfully add that the raison d'tere, for the aforesaid established general rule of law, is that an ex parte application is an application uberrimae fidei i.e. of the utmost good faith and the court has to rely on the unilateral version of the applicant who must candidly and faithfully tell the truth, the whole truth and nothing but the truth. Anything short of that utmost good faith will invariably render the ex parte application fundamentally flawed and on that ground alone, result in the inevitable setting aside of the ex parte order so obtained.". S/N FhUF6qM9uke3/n8xB2bAVg **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 27. Mahkamah juga merujuk kepada kes Ravindra Ramachandran v Thang Mun Seong [2010] MLJU 267; [2010] 1 LNS 132; [2010] 4 MLRH 513; [2010] 8 AMR 256 di mana Mahkamah memutuskan bahawa:- “In the case of Castle Fitness Consultancy Pte Ltd v. Manz (supra), the court stated that where an ex parte application is made, the plaintiff is not only obliged not to mislead the court but in addition he is under a duty to disclose to the court all matters that are within his knowledge which are material to the proceedings and which are or may be in favor of an absent party. A matter is regarded as material if it is a factor that the court will take into account in the exercise of its discretion. The importance and materiality of any fact is a question of fact to be decided by the court and the exercise of the court's discretion can only be embarked upon if the applicant has made frank and full disclosures of all material facts.” 28. Di samping itu, Mahkamah dapati JC telah menyenaraikan 22 bank dalam prayer 1 lampiran 1 sebagai garnisi-garnisi yang terlibat dalam kes ini. Selain kewujudan cek yang telah ditolak bayaran oleh satu bank, JC masih gagal mendedahkan sumber kepercayaan JC bagi baki 21 bank yang didakwa berhutang dengan JD, sama ada dalam Afidavit Sokongan mahupun Afidavit Tambahan. Kegagalan menamakan garnisi-garnisi dalam intitulment 29. Di samping kesemua isu yang ditimbulkan di atas, Mahkamah juga dapati JC telah gagal menamakan garnisi-garnisi dalam intitulment sebagai salah satu pihak dalam kes ini. Adalah menjadi undang- undang yang mantap bahawa kandungan borang yang dilampirkan dalam Jadual kepada sesuatu Akta adalah sebahagian daripada Akta S/N FhUF6qM9uke3/n8xB2bAVg **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 itu sendiri, dan perlu diberi kesan penuh seakan peruntukan Akta itu. Perkara ini diputuskan Mahkamah Persekutuan dalam kes Lim Eng Chuan Sdn Bhd v. United Malayan Banking Corporation & Anor [2013] 5 CLJ 425; [2013] 3 MLJ 161; [2013] 3 MLRA 275; [2013] 3 AMR 760 di mana Mahkamah memutuskan bahawa:- "[60] It might be mentioned here that the inclusion of a schedule(s) to an Act of Parliament is commonplace and that it is now an established legislative drafting practice to do so. This is especially true where specific forms are prescribed for the purpose of carrying into effect the sections set out in the main body of the Act. Thus, the schedule is to be read and construed as an integral, essential and operative part of the Act. (See Attorney General v. Lamplough [1878] 3 Ex D 214, 229)." 30. Mahkamah merujuk kepada borang 97 yang dengan jelas memerlukan JC menamakan pihak garnisi yang terlibat dalam kes tersebut pada tajuk tindakan tersebut tersendiri. Mahkamah merujuk kepada bahagian intitulment borang 97 seperti berikut:- No. 97 GARNISHEE ORDER TO SHOW CAUSE (O. 49 r. 1) IN THE HIGH COURT OF MALAYA/SABAH & SARAWAK AT . .................................. / SESSIONS/MAGISTRATES’ COURT AT .................................... Suit No. .................. of 20............ Between . ............................................................... Judgment creditor, and . ............................................................... Judgment debtor. and . ................................................................ Garnishee S/N FhUF6qM9uke3/n8xB2bAVg **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 31. Namun, dalam kes ini, JC telah gagal menamakan pihak garnisi- garnisi sebagai salah satu pihak kepada prosiding dan hanya menyenaraikan senarai garnisi tersebut sebagai sebahagian dari prayer (1) permohonan JC semata-mata, yang dengan jelas bertentangan dengan format yang diperuntukkan dalam borang 97 Kaedah-kaedah Mahkamah 2012. 32. Berdasarkan alasan-alasan yang dinyatakan di atas, Mahkamah dapati permohonan JC dalam kes ini mempunyai pelbagai ketidakaturan yang serius dan dengan demikian, Mahkamah membatalkan permohonan dalam Lampiran 1 dengan kebebasan untuk memfailkan semula tanpa perintah terhadap kos. Bertarikh: 26 September 2023 Disediakan oleh, …………………………………. ARUN A/L NOVAL DASS Timbalan Pendaftar Mahkamah Tinggi Malaya Johor Bahru S/N FhUF6qM9uke3/n8xB2bAVg **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 Pihak-pihak: 1. Tetuan Ang & Co Peguambela & Peguamcara Peguam Pemiutang Penghakiman Lot 23-04, Level 23, Public Bank Tower, 19, Jalan Wong Ah Fook, 80000 Johor Bahru (Ruj: A/sea/5324/2023C) … Lim Rue Chee S/N FhUF6qM9uke3/n8xB2bAVg **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 Kes-kes yang dirujuk: 1. Barakah Offshore Petroleum Berhad & Anor v Mersing Construction Sdn Bhd & Ors [2019] MLJU 338; [2019] 1 LNS 551; [2019] 5 MLRH 655; [2019] 3 AMR 673 2. Malaysian International Trading Corporation Sdn Bhd v RHB Bank Bhd [2016] 2 MLJ 457; [2016] 2 CLJ 717; [2016] 2 MLRA 175; [2016] 2 AMR 133 3. Low Cheng Soon v TA Securities Sdn Bhd [2003] 1 MLJ 389; [2003] 1 CLJ 309; [2002] 2 MLRA 298; [2003] 2 AMR 287 4. Tesco Stores (Malaysia) Sdn Bhd v Ananda Kumar Krishnan [2018] 6 MLJ 261; [2017] 5 CLJ 315; [2017] 5 MLRA 616; [2017] 4 AMR 1 5. Ringgit Exoticka Sdn Bhd v Pengarah Tanah & Galian Selangor & Ors [2014] 8 MLJ 111; [2013] 10 CLJ 663; [2013] MLRHU 316 6. DYMM Tuanku Ibrahim Ibni Sultan Iskandar Al-Haj v Datuk Captain Hamzah B Mohd Noor [2009] 4 MLJ 149; [2009] 4 CLJ 329; [2009] 1 MLRA 528; [2009] 5 AMR 298 7. Bank Kerjasama Rakyat (M) Berhad v Koperasi Serbaguna Iman Malaysia Berhad; Maybank Islamic Berhad & Ors (Garnishees) [2023] MLJU 83; [2023] 1 LNS 45; [2023] MLRHU 37; [2023] AMEJ 0054 8. Kwek Seow Kee & Anor v KT Packaging Sdn Bhd (No.2) [1998] MLJU 77; [1998] 3 CLJ SUPP 244; [1998] 1 MLRH 425 9. Tan Cheow Yen v Yap Kar Wai & Anor and Another Case [2019] 1 LNS 1064 10. Choo Foong Yin v Lee Chu Fuk [2021] 1 LNS 2087 11. Liew Choong Kin v Pengarah Jabatan Ketua Pengarah Tanah dan Galian (Persekutuan) Wilayah Persekutuan Kuala Lumpur [2018] 11 MLJ 339; [2018] 7 CLJ 82; [2018] 2 AMR 596; [2018] MLRHU 1956 12. Castle-Inn v Bumiputera Commerce [2009] 1 MLJ 542; [2009] 2 CLJ 445; [2008] 3 MLRA 249; [2008] 6 AMR 541 13. Ravindra Ramachandran v Thang Mun Seong [2010] MLJU 267; [2010] 1 LNS 132; [2010] 4 MLRH 513; [2010] 8 AMR 256 14. Lim Eng Chuan Sdn Bhd v. United Malayan Banking Corporation & Anor [2013] 5 CLJ 425; [2013] 3 MLJ 161; [2013] 3 MLRA 275; [2013] 3 AMR 760 S/N FhUF6qM9uke3/n8xB2bAVg **Note : Serial number will be used to verify the originality of this document via eFILING portal Pengenalan Analisis dan keputusan Mahkamah Pemfailan Afidavit Tambahan oleh JC Kegagalan menamakan garnisi-garnisi dalam intitulment

Tika 2.6.0

JA-37J-2-04/2023

PLAINTIF IMELDA NASREEN BINTI NASRUDDIN @ BALCHIN DEFENDAN MASYITAH BINTI MD HASSAN

Memandangkan terdapat penyelesaian berkenaan pembayaran penghakiman tertunggak antara pihak-pihak selepas pemfailan Saman Penghutang Penghakiman, sama ada Pemiutang Penghakiman berhak untuk kos bagi tindakan Saman Penghutang Penghakiman

22/11/2023

Tuan Arun A/L Noval Dass

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1 DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA PERMOHONAN PELAKSANAAN NO. JA-37J-2-04/2023 ANTARA IMELDA NASREEN BINTI NASRUDDIN @ BALCHIN … PEMIUTANG PENGHAKIMAN DAN MASYITAH BINTI MD HASSAN … PENGHUTANG PENGHAKIMAN ---------------------------------------------------------------------------------------------------- ALASAN PENGHAKIMAN ---------------------------------------------------------------------------------------------------- 22/11/2023 13:58:23 JA-37J-2-04/2023 Kand. 20 S/N t1K1HJzyHEqhfy43oe00VQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Pengenalan 1. Pada 17.11.2022, Mahkamah Rayuan telah membenarkan rayuan Pemiutang Penghakiman (selepas ini dirujuk sebagai JC) dan memerintahkan supaya Penghutang Penghakiman (selepas ini dirujuk sebagai JD) memulangkan kos berjumlah RM5,000.00 dan fi alokatur sebanyak RM200.00 yang telah dibayar JC kepada JD menurut perintah Mahkamah Tinggi bertarikh 23.2.2022. 2. JD juga diperintahkan untuk membayar kos sejumlah RM10,000.00 tertakluk kepada fi alokatur berjumlah RM400.00. Maka, selaras dengan perintah tersebut, JD diperintahkan untuk membayar JC sejumlah RM15,600.00 secara keseluruhan. 3. Peguam JC telah mengeluarkan surat bertarikh 22.12.2022 untuk menyampaikan Perintah Mahkamah Rayuan tersebut yang bermeterai kepada peguam JD dalam rekod pada ketika itu. Dalam surat yang sama, JC menuntut pembayaran dari JD sejumlah RM15,600.00. Setelah beberapa surat susulan untuk menuntut jumlah tersebut tidak berjaya, JC telah memfailkan Saman Penghutang Penghakiman terhadap JD. 4. Selepas mendapat tahu berkenaan prosiding Saman Penghutang Penghakiman ini, peguam JD telah membuat pembayaran sejumlah RM15,804.00 kepada akaun anakguam peguam JC pada 15.07.2023. Peguam JD seterusnya telah menghantar borang 90 iaitu borang Persetujuan Untuk Mencatatkan Penunaian kepada S/N t1K1HJzyHEqhfy43oe00VQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 peguam JC. 5. JC tidak bersetuju untuk menandatangani borang 90 tersebut dan JC telah mengarahkan peguam JC untuk menuntut kos RM5,000.00 dari JD iaitu kos bagi prosiding Saman Penghutang Penghakiman ini. 6. JD telah mengambil pendirian konsisten bahawa bayaran RM15,804.10 kepada JC melalui peguam JC adalah penyelesaian penuh dan muktamad tuntutan JC terhadap JD dan JC tidak berhak memohon sebarang kos lanjutan sebagaimana dipohon. Memandangkan tuntutan prinsipal JC telah ditunaikan dan pihak- pihak hanya bercanggahan pendirian berkenaan isu kos prosiding Saman Penghutang Penghakiman, Mahkamah telah menasihati pihak-pihak untuk berbincang untuk penyelesaian secara damai isu tersebut namun pihak-pihak masih tidak dapat mencapai penyelesaian dan memohon Mahkamah memutuskan isu tersebut. Analisis dan keputusan Mahkamah 7. Undang-undang adalah mantap bahawa Mahkamah mempunyai budi bicara yang luas dalam menentukan isu kos dan dalam melaksanakan budi bicara tersebut, Mahkamah seharusnya bertindak mengikut lunas undang-undang (judiciously) dan tidak membuat keputusan sewenang-wenangnya. Dalam hal ini, Mahkamah merujuk kepada petikan dari artikel “Effective ways to persuade in taxation proceedings” [2010] 1 LNS(A) li, di mana pengarang merumuskan prinsip ini seperti berikut:- S/N t1K1HJzyHEqhfy43oe00VQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 “Order 59 r. 3(2) RHC gives the court the discretion to make any order as to the costs. Discretion however must be exercised on certain fixed judicial principles according to reason and justice not according to a private or personal dislike or opinion (Sharp v. Wakefield [1891] AC 173, 60 LJMC 73, HL) However, the very same rule also provides that the court shall, subject to this order, order the costs to follow the event, except when it appears to the court that in the circumstances of the case some other order should be made as to the whole or any part of the costs. "In other words, there must be materials or grounds present upon which the court can exercise its discretion."…” 8. Malah, Akta Penghutang Penghakiman 1957 turut membiarkan isu penentuan kos kepada budi bicara Mahkamah. Perkara ini dapat dilihat dengan jelas dalam seksyen 11 Akta tersebut yang memperuntukkan bahawa:- “Unless in any case the court otherwise orders the costs and expenses of and incidental to the summoning, arrest or imprisonment of any judgment debtor under this Act shall be added to the judgment debt and be recoverable accordingly.” 9. Dalam kes ini, salah satu isu yang diutarakan dan dipertikaikan pihak-pihak adalah berkenaan penyampaian Saman Penghutang Penghakiman tersebut kepada JD. Menurut JC, penyampaian Saman Penghutang Penghakiman adalah sempurna atas alasan-alasan berikut:- (a) JC telah dimaklumkan rakannya bahawa JD telah berpindah ke Pulau Pinang dan carian maklumat syarikat JD menunjukkan perkara yang sama; (b) Berdasarkan maklumat tersebut, peguam JC telah membuat percubaan S/N t1K1HJzyHEqhfy43oe00VQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 penyampaian melalui kerani penyampaian Tetuan Willie Ong & JL Ooi; (c) Kerani penyampaian tersebut telah bercakap dengan pembantu rumah, anak lelaki dan suami JD di luar premis rumah JD di Pulau Pinang. Pembantu rumah, anak lelaki dan suami JD tidak menyatakan bahawa JD tidak berada di rumah; (d) Pembantu rumah JD mengesahkan bahawa JD berada di rumah pada masa material. Pembantu rumah dan anak JD memaklumkan kepada kerani tersebut bahawa mereka akan meminta JD untuk berjumpa kerani penyampaian di luar rumah; (e) Semasa bercakap dengan suami JD, kerani penyampaian mendengar suara seorang wanita dari dalam rumah tersebut. Kerani penyampaian menjerit “Masyitah Binti Md Hassan, saya serah Saman ini kepada kamu”; dan (f) Memandangkan JD enggan menerima Saman Penghutang Penghakiman, kertas-kertas kausa telah diletakkan di dalam peti pos premis tersebut. 10. JD berhujah bahawa JD telah mendeposkan secara bersumpah bahawa ia tidak menerima Saman Penghutang Penghakiman sebagaimana didakwa JC. JD mendakwa bahawa JD tidak pernah dimaklumkan ahli keluarga mahupun pembantu JD berkenaan kehadiran penyampai saman dan JD tidak pernah melihat Saman tersebut di dalam peti surat atau di mana-mana bahagian rumah JD. JD juga mendeposkan bahawa ia tidak pernah mendengar jeritan penyampai saman sebagaimana didakwa JC. JD mendakwa hanya mengetahui berkenaan kewujudan Saman Penghutang Penghakiman ini setelah peguam JD membuat carian fail. Maka, JD berhujah bahawa bentuk penyampaian yang dinyatakan JC tidak memenuhi peruntukan undang-undang yang memerlukan penyampaian kediri Saman Penghutang Penghakiman ke atas JD. S/N t1K1HJzyHEqhfy43oe00VQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 11. JD seterusnya merujuk kepada kes Loi Teck Chai v Kinta Medical Centre Sdn Bhd [2019] MLJU 239; [2019] 1 LNS 400; [2019] MLRHU 257; [2019] AMEJ 0555 di mana Mahkamah Tinggi memutuskan bahawa:- “[15] Kesan proses Saman penghutang penghakiman ini adalah serius dimana penghutang penghakiman boleh ditangkap dan dipenjarakan dan disebabkan itulah saman penghutang penghakiman perlu diserahkan secara kendiri. Walaubagaimanapun meneliti ayat yang dinyatakan didalam Aturan 74 11D(2) KKM 2012 tersebut iaitu "Unless the Court otherwise orders", ia memberi kuasa kepada mahkamah untuk memerintahkan selainnya. Ini juga diputuskan di dalam kes Lim Gag @ Lim Hua Chuan v. Ng Sen Yap (Berniaga sebagai Swee Choon Hin Trading Co) (supra ) yang diputuskan oleh Ahmad Maarop JC (pada masa itu) dimana isu yang sama dibangkitkan. Dalam kes tersebut telah diputuskan dan saya bersetuju bahawa: Saya berpendapat walaupun peruntukan tersebut menyatakan bahawa saman penghutang penghakiman mesti disampaikan kediri orang yang disaman sekurang-kurang 7 hari sebelum hari yang ditetapkan bagi pendengaran, terdapat pengecualian kepada peraturan ini.Perkataan-perkataan "melainkan jika diperintahkan selainnya oleh mahkamah" memberikan kuasa kepada mahkamah untuk mengecualikan penyampaian saman penghutang penghakiman secara kediri sekurang-kurangnya 7 hari sebelum hari yang ditetapkan bagi pendengaran.Dalam lain- lain perkataan, saman penghutang penghakiman boleh disampaikan melalui saman gantian jika terdapat perintah mahkamah untuk berbuat demikian. Selanjutnya didalam kes tersebut juga diputuskan bahawa: ".... saya memutuskan bahawa mahkamah boleh memerintahkan supaya saman penghutang penghakiman disampaikan dengan cara penyampaian gantian dibawah A. 37 k. 16(2) dan A. 7 k. 18(1) KMR, jika terdapat fakta-fakta dan keadaan yang memuaskan hati mahkamah untuk berbuat demikian. Memandangkan bahawa proses saman penghutang penghakiman ini boleh melibatkan penghutang ditangkap dan dipenjarakan, maka permohonan untuk penyampaian ganti bagi saman tersebut hendaklah disokong oleh bukti-bukti yang jelas dan kukuh serta meyakinkan.”… [18] Saya mendapati bahawa sepatutnya mahkamah perlu lebih berhati-hati dalam membenarkan penyampaian ganti didalam kes-kes saman penghutang S/N t1K1HJzyHEqhfy43oe00VQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 penghakiman kerana kesannya adalah serius…” 12. Berdasarkan analisis kertas-kertas kausa yang difailkan, Mahkamah dapati JD menafikan ada dimaklumkan ahli keluarga JD mahupun pembantu rumah berkenaan kehadiran penyampai saman tersebut pada 30 Jun 2023. Dalam hal ini, Mahkamah sedia maklum hujahan JC bahawa penyampai saman ada mendengar suara seorang wanita dan dengan demikian, penyampai saman telah menjerit dengan kuat “Masyitah Binti Md Hassan, saya serah Saman ini kepada kamu” sebelum meninggalkan kertas-kertas kausa di dalam peti pos. 13. Mahkamah tidak terlepas pandang dengan prinsip perundangan yang mantap bahawa sesuatu penyampaian kediri adalah sempurna walaupun kertas kausa enggan diterima oleh penerima sekiranya penyampai dokumen tersebut telah menerangkan tujuan saman tersebut dan meninggalkan saman tersebut berhampiran dengan orang yang ingin disampaikan. Dalam hal ini, Mahkamah merujuk kepada kes Khooi Beng Aun v Koh Chin Lean [1994] MLJU 377; [1994] 4 CLJ 138; [1994] 2 MLRH 398 di mana Mahkamah memutuskan bahawa:- “I take it that by leaving a sealed copy of the document would mean handing it to that person, or at the very least, leaving it physically close to him so that an assumption of possession can arise and, at the same time, telling him of the purpose of the exercise. All the authorities require knowledge on the part of the recipients of the existence of the documents so served. Thus, in Thompson v. Pheney 1 Down 443 where the copy was thrown near the defendant and, in his presence, that copy was opened and the defendant refused to accept it, it was held to be sufficient service. And where the solicitor's clerk pushed the copy of the order in the inner fold of the defendant's coat which was unbuttoned S/N t1K1HJzyHEqhfy43oe00VQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 and that copy fell as the defendant opened his coat, it was held that that was good service (Roase v. Kemphouse 103 LT 730; 27 TLR 132).” 14. Sebagaimana diputuskan dalam kes di atas, penyampaian dokumen secara peninggalan dokumen hanya berkesan dalam kehadiran penerima yang diniatkan (“in his presence” atau “leaving it physically close to him”) . Dalam kes ini, Mahkamah berpendapat bahawa dengan penafian JD bahawa JD pernah mendengar jeritan penyampai saman tersebut, adalah sukar untuk Mahkamah membuat sebarang penemuan bahawa JD sememangnya hadir semasa jeritan penyampai saman hanya semata-mata berdasarkan pernyataan penyampai saman bahawa kedengaran “suara seorang wanita di dalam rumah di premis”. Mahkamah tidak bersedia membuat penemuan ringkas (summary decision) bahawa suara wanita yang dimaksudkan penyampai saman adalah sebenarnya suara JD tanpa sebarang keterangan lain yang konkrit. 15. Malah, sekiranya benar hujahan JC bahawa suara yang didengar penyampai saman adalah sebenarnya suara JD (yang belum dibuktikan di hadapan Mahkamah ini), maka keengganan JD untuk keluar dari premis tersebut bagi menerima penyampaian dokumen dengan jelas menunjukkan bahawa JD mengelak penyampaian (evade service) dan dengan demikian mewajarkan permohonan penyampaian ganti Saman tersebut sebagaimana diputuskan dalam kes Zschimmer & Schwarz GMBH & Co KG Chemische Fabriken v Persons Unknown & Anor (No.2) [2021] MLJU 187; [2021] 3 CLJ 587; [2021] MLRHU 247; [2021] AMEJ 0155 di mana Mahkamah memutuskan bahawa:- “[70] The Singapore High Court in BNP Paribas (aka Banque National De Paris) v. Polynesia Timber Services Pte Ltd [2002] 1 SLR(R) 539 held that substitution of service may be ordered if circumstances are such as to render personal service, within or out of the jurisdiction impracticable, for the defendant S/N t1K1HJzyHEqhfy43oe00VQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 avoids such service. The inference is made when evidence shows that the defendant was unavailable because he knew that an action was being taken against him. [71] Given the circumstances above, the second defendant is likely to be evading service after being aware of this suit against him. Therefore, this application for substituted service should be allowed as it would be impractical for the plaintiff to effect personal service of the cause papers…” 16. Maka, sebagaimana dihujahkan JD dalam kes ini, wujud keraguan sama ada Saman Penghutang Penghakiman telah sebenarnya disampaikan kepada JD dengan sewajarnya. Namun, Mahkamah berpendapat bahawa keputusan kes Loi Teck Chai (supra) wajar dibezakan dengan kes di hadapan Mahkamah. 17. Keputusan kes Loi Teck Chai (supra) memerlukan Mahkamah membuat penelitian ketat berkenaan penyampaian saman penghutang penghakiman bagi tujuan prosiding pemeriksaan penghutang penghakiman secara fizikal di Mahkamah antara lain bagi menentukan kemampuan seseorang penghutang penghakiman menyelesaikan hutang pemiutang penghakiman. Dalam kes di hadapan Mahkamah, tiada keperluan bagi Mahkamah ini meneruskan dengan prosiding pemeriksaan fizikal tersebut memandangkan sebagaimana dinyatakan terdahulu, JD sudahpun menyelesaikan hutang JC dengan pembayaran kepada akaun anakguam peguam JC. 18. Bagi tujuan penentuan berkenaan isu kos dalam kes ini, Mahkamah masih berpendapat bahawa fakta yang tidak boleh dipertikaikan adalah penyampai saman telah sebenarnya hadir pada tarikh dan masa yang dinyatakan dalam Afidavit Penyampaian penyampai saman. Maka, perkara tersebut sememangnya menyebabkan JC S/N t1K1HJzyHEqhfy43oe00VQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 menanggung kos bagi tujuan prosiding Saman Penghutang Penghakiman tersebut. Sebagaimana dihujahkan oleh peguam JC, pemfailan Saman Penghutang Penghakiman, apatah lagi percubaan penyampaian saman tersebut oleh JC dapat dielakkan sekiranya JD telah memenuhi surat-surat tuntutan yang dikeluarkan peguam JC kepada peguam JD sebelum pemfailan tindakan pelaksanaan ini. 19. Mahkamah merujuk kepada surat-surat tuntutan yang dikeluarkan peguam JC masing-masing pada 22.12.2022 (Eksibit INN-2 lampiran 10), 9.1.2023 (Eksibit INN-3 lampiran 10) dan 23.2.2023 (Eksibit INN- 4 Lampiran 10), yang telah diaku terima peguam JD terdahulu masing-masing pada 22.12.2022, 10.1.2023 dan 23.2.2023. Mahkamah dapat mengetahui tarikh-tarikh penerimaan oleh peguam JD terdahulu berdasarkan cop penerimaan firma peguam tersebut dalam surat-surat tersebut dan setakat kertas-kertas kausa yang difailkan di Mahkamah, tiada penafian fakta-fakta ini oleh JD. Malah, sebagaimana dinyatakan dalam perenggan 5 surat peguam JD bertarikh 26.7.2023 (Lampiran 7), pembayaran penuh tuntutan RM15,804.10 turut dilaksanakan melalui firma guaman terdahulu tersebut bertarikh 15.7.2023. Undang-undang adalah mantap bahawa sebarang kertas kausa yang disampaikan kepada peguam yang mewakili sesuatu pihak adalah penyampaian yang sempurna ke atas pihak tersebut. Mahkamah dalam hal ini merujuk kepada kes CIMB Bank Berhad v Goh Tai Pak & Anor [2009] 1 LNS 1320; [2009] 11 MLRH 858; [2009] AMEJ 0332 di mana Mahkamah memutuskan bahawa:- “The question is whether the service on the solicitor acting for the 2nd defendant is tantamount to communication to the customer, in this case, the 2nd defendant. I should think so. O. 63 r. 13 of the Rules of the High Court 1980 provides as follows… S/N t1K1HJzyHEqhfy43oe00VQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 [20] By rule 13 any document or written communication which ought to be delivered to or served on a party represented by a solicitor shall be delivered to or served on such solicitor. Although rule 13 speaks of a party who had initially sued or appeared in person but is now represented by a solicitor, in my opinion it would not make sense to exclude the application of this rule to those who have right from the beginning been represented by solicitors. In such cases, there is more reason for documents and written communications to be delivered or served on the solicitors acting for the party. In Pengurusan Danaharta Nasional Bhd v. Yong Wan Hoi & Anor (No 2) [2007] 9 CLJ 416; [2008] 7 MLJ 297 it was held that the service of the order for possession and the cause papers for the application on the solicitors acting for the defendants was sufficient in lieu of personal service. Similarly in Syarikat Perumahan Pegawai Kerajaan Sdn Bhd v. Sri Komakmur Sdn Bhd (No 2) [1998] 5 MLJ 756 the service on the solicitors, in lieu of personal service on the directors of the company, of an order of the court requiring the defendant company to specifically perform a contract was held to be proper. Following therefore from the provisions of rule 13 and the authorities referred to I am of the view that any document or written communication that have been communicated to the solicitor acting for the 2nd defendant would be as good as having been communicated to the 2nd defendant. Hence, the contention of the 2nd defendant that P.9 was not communicated to her does not hold water.” 20. Dalam nada yang sama, Mahkamah dalam kes Leung Kai Fook Medical Co Pte Ltd & Anor v Ninso Global Sdn Bhd [2023] MLJU 1704; [2023] 1 LNS 1531 memutuskan bahawa:- “[12] In my opinion, once a party has retained solicitors to act for it on a certain matter, then for as long as that retainer subsists that solicitor is authorised to act for it, on all matters for which it is retained. That is what would be within the reasonable contemplation of the client. Unless expressly excluded either by the client or the solicitor, I would think that that retainer impliedly includes accepting service of process and of all cause papers for the party, unless it expressly states otherwise. If the solicitors have then gone on to communicate with the opposite party or its solicitors, then any further communications by that party or its solicitors with the other or any steps they wish to take against the other, must be communicated to and through them…” S/N t1K1HJzyHEqhfy43oe00VQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 21. Dalam hal ini, surat tuntutan terakhir peguam JC bertarikh 23.2.2023 ada menyatakan dengan jelas dalam perenggan 3 seperti berikut:- “Kindly let us have the sum of RM15,600.00 by Wednesday, 1st March 2023, failing which we have our client’s instructions to proceed with the necessary legal proceedings to enforce judgment without further notice to you.” 22. JC dalam kes ini hanya memfailkan Saman Penghutang Penghakiman di Mahkamah ini pada 12.4.2023 iaitu selepas lebih kurang 1 ½ bulan dari tempoh masa yang diberikan kepada JD untuk menyelesaikan tuntutan JC. Maka, Mahkamah berpendapat bahawa Saman Penghutang Penghakiman yang difailkan JC adalah hak JC untuk menguatkuasakan penghakiman yang berpihak kepada JC dan bukan merupakan penyalahgunaan proses Mahkamah. Malah, tindakan-tindakan susulan yang diambil JC untuk cuba menyampaikan Saman tersebut kepada JD juga merupakan tindakan konsequential yang perlu dilaksanakan JC dalam perjalanan prosiding Saman Penghutang Penghakiman tersebut. 23. Pemfailan dan percubaan penyampaian saman tersebut akan sememangnya mewujudkan kos dan perbelanjaan kepada JC sebagaimana dinyatakan dalam seksyen 11 Akta Penghutang Penghakiman 1957 (“costs and expenses of and incidental to the summoning,”) . Maka, Mahkamah bersetuju dengan hujahan JC bahawa JC berhak menuntut kos bagi pemfailan dan seterusnya untuk tindakan lanjut yang diambil dalam perjalanan prosiding Saman S/N t1K1HJzyHEqhfy43oe00VQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 Penghutang Penghakiman tersebut. 24. Seterusnya, Mahkamah juga merujuk kepada hujahan JD bahawa berkenaan kelewatan bayaran, JC telah memperolehi manfaat dari pembayaran faedah 5% setahun bermula dari 17.11.22 sehingga penyelesaian penuh penghakiman yang diperintahkan. Mahkamah berpendapat bahawa menurut Aturan 42 Kaedah 12 Kaedah-kaedah Mahkamah 2012, JC sememangnya berhak untuk memperolehi faedah ke atas jumlah penghakiman yang tertunggak dan isu tersebut adalah berasingan dengan kos yang tertimbul akibat pemfailan tindakan pelaksanaan ini untuk menguatkuasakan penghakiman tersebut yang terakru menurut seksyen 11 Akta Penghutang Penghakiman 1957. 25. Mahkamah juga bersetuju dengan hujahan JC bahawa apa-apa dakwaan JD bahawa JD telah dimalukan oleh JC di media sosial mengenai hutang berjumlah RM15,600.00 melalui hantaran-hantaran yang dibuat oleh JC, mewujudkan kausa tindakan yang berasingan dan JD perlu membawa tindakan sivil terhadap JC untuk dibicarakan di Mahkamah. Mahkamah ini yang mendengar permohonan pelaksanaan bukan forum yang sesuai untuk menentukan isu tersebut secara ringkas (summary disposal) tanpa mendengar keterangan saksi-saksi selepas perbicaraan penuh. 26. Dalam hal ini, walaupun Mahkamah bersetuju dengan hujahan JC bahawa JC berhak memohon kos untuk prosiding Saman Penghutang Penghakiman ini, Mahkamah tidak bersetuju dengan S/N t1K1HJzyHEqhfy43oe00VQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 kuantum yang dicadangkan oleh JC. Dalam hal ini, Mahkamah merujuk kepada hujahan JD bahawa kegagalan JC dalam memfailkan borang 117 di Mahkamah menurut Aturan 59 Kaedah 7 Kaedah-kaedah Mahkamah 2012 (selepas ini dirujuk sebagai KKM) adalah fatal kepada JC. Mahkamah berpendapat bahawa Aturan 59 Kaedah 7(1) KKM dengan jelas memperuntukkan bahawa kos yang tertimbul dalam sesuatu prosiding perlu diputuskan pada mana-mana peringkat prosiding itu atau di akhir prosiding itu (at the conclusion of the proceedings). Kos yang dituntut JC dalam kes ini bukan berkaitan kos yang timbul dalam prosiding itu sendiri tetapi kos yang timbul dalam tindakan pelaksanaan untuk menguatkuasakan kos yang diperintahkan dalam prosiding itu. Perbezaan kedua-dua kos ini ada dibincangkan dalam kes Peter Runin v Sebiro Holdings Sdn Bhd [2016] 1 LNS 1589 di mana Mahkamah memutuskan bahawa:- “With due respect, I am unable to adopt the same view as that of Dato' Hue Siew Khang J in the cited case because in my view a taxation proceeding is not an execution proceeding. Cost is ordered as part of the judgment, just like damages. Therefore, taxation of the cost or assessment of damages, as the case may be is not a process to enforce that judgment but is collateral to it. Furthermore, what constitutes an execution proceeding is spelled out by Order 45 r. 1 to r. 5 of the Rules of Court 2012 and a taxation proceeding is omitted from that statutory ambit.” 27. Maka, permohonan kos oleh JC dalam kes ini adalah di bawah seksyen 11 Akta Penghutang Penghakiman 1957 sebagaimana yang dirujuk di atas yang memberi budi bicara kepada Mahkamah untuk menentukan kos dalam prosiding Saman Penghutang Penghakiman. S/N t1K1HJzyHEqhfy43oe00VQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 28. Mahkamah bersetuju dengan hujahan JD bahawa kos yang dicadangkan iaitu RM5,000.00 adalah keterlaluan dan eksessif. Mahkamah berpendapat bahawa kes-kes yang dirujuk JC iaitu Azlin Azrai Bin Lan Hawari v United Overseas Bank (M) Bhd [2017] 5 MLJ 43; [2017] 10 CLJ 18; [2017] MLRAU 308 dan Mohd Kamal Bin Omar v United Overseas Bank (M) Bhd and other appeals [2018] MLJU 600; [2018] 5 CLJ 657; [2018] 4 MLRA 87; [2018] 4 AMR 924 wajar dibezakan dengan kes di hadapan Mahkamah. 29. Mahkamah dapati kedua-dua kes yang dirujuk tersebut adalah merupakan kes yang sama di mana kes tahun 2017 adalah keputusan Mahkamah Rayuan dan kes 2018 adalah keputusan Mahkamah Persekutuan berkenaan rayuan dari keputusan Mahkamah Tinggi yang sama. Penelitian kes-kes tersebut menunjukkan bahawa Mahkamah Tinggi ada mengawardkan kos RM4,000.00 bagi prosiding Saman Penghutang Penghakiman. Namun, penelitian lanjut penghakiman-penghakiman tersebut menunjukkan bahawa kos yang diawardkan tersebut adalah setelah proses pendengaran Saman Penghutang Penghakiman diselesaikan sepenuhnya di Mahkamah. Perkara ini dapat dilihat melalui penghakiman Mahkamah Persekutuan seperti berikut:- “The respondent as the judgment creditor ('JC') had obtained final judgment against the appellants as judgment debtors ('JD') for the sum of RM79,804,851.04. The JC then commenced a judgment debtors summons ('JDS') before the Senior Assistant Registrar ('SAR') and obtained an order against the JD ('JDS order'). The JD appealed against the JDS order. The High S/N t1K1HJzyHEqhfy43oe00VQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 Court ordered that the JDS order ordering the JD to pay the sum of RM3,520,000 forthwith to the JC be set aside and ordered that the JDS order ordering the JD to pay the monthly instalment of RM5,000 to the JC until full settlement and costs of RM4,000 to the JC, remain unchanged. The JD complied with the JDS appeal order and made the required payments. ” 30. Berbeza dengan kes yang tersebut di atas, kes di hadapan Mahkamah masih belum melalui proses perbicaraan Saman Penghutang Penghakiman di mana JD telah menyelesaikan tuntutan JC setelah Saman Penghutang Penghakiman telah difailkan dan percubaan penyampaian saman tersebut telah dibuat JC. Maka, Mahkamah berpendapat bahawa JC hanya berhak mendapat kos yang jauh lebih rendah dari kos yang dicadangkan oleh JC. 31. Dalam kes ini, disamping kos pemfailan dokumentasi di Mahkamah sebagaimana dinyatakan JD dalam perenggan 22 hujahan JD, Mahkamah juga mendapati peguam JC sememangnya perlu menanggung kos untuk menyediakan dan mengaku sumpah setiap lampiran eksibit dalam afidavit-afidavit yang difailkan. Sebagaimana dihujahkan peguam JD, walaupun pihak-pihak tidak hadir secara fizikal di Mahkamah, namun Mahkamah berpendapat bahawa kehadiran peguam secara e-review masih memerlukan peguam JC untuk menangani isu-isu yang ditimbulkan dalam sesi e-review tersebut oleh peguam JD. 32. Di samping itu, sebagaimana dibutirkan terdahulu, Mahkamah juga dapati JC sememangnya telah melantik penyampai saman untuk menyampaikan saman ke alamat JD di Pulau Pinang dan penyampai saman tersebut sememangnya telah hadir ke alamat JD walaupun pihak-pihak dalam pertikaian sama ada penyampaian telah dilakukan S/N t1K1HJzyHEqhfy43oe00VQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 dengan sempurna. Maka, tindakan susulan JC tersebut setelah memfailkan tindakan Saman Penghutang Penghakiman sememangnya akan menyebabkan JC menanggung kos untuk proses penyampaian tersebut. Malah, sebelum melakukan percubaan penyampaian ke atas JD, menurut perenggan 15.3 Afidavit Balasan JC (Lampiran 10), peguam JC juga telah membuat carian syarikat terhadap syarikat milik JD bagi mengenal pasti alamat terkini JD. 33. Mahkamah juga telah mengambil kira bahawa peguam JC juga perlu memfailkan hujahan bertulis bagi mengetengahkan hujahan-hujahan JC bagi memohon kos prosiding Saman Penghutang Penghakiman dan bagi menjawab isu-isu yang diutarakan JD bagi menentang tuntutan kos oleh JC. Dalam hal ini, Mahkamah merujuk kepada kes Lim Kai Hee & Ors v Patent View Development Sdn Bhd & Ors [2019] MLJU 723; [2019] 1 LNS 1044; [2019] MLRHU 1407; [2019] 8 AMR 175 di mana Mahkamah memutuskan bahawa:- “[21] The solicitors too should not be deprived of fees for getting-up in preparation for the litigation work as illustrated by the case Southern Finance Co Bhd v. Zamrud Properties Sdn Bhd (No 3) [1999] 4 CLJ 754; [1998] 7 MLJ 168 as follows: It is wrong for the learned SAR to have only considered the two issues identified by me in the judgment. He erred in failing to take account of the fact that the defendant had researched and submitted on all the other issues for which the defendant is entitled to getting-up fees. As was said by his Lordship Chong Siew Fai J (as he then was) in Lloyds Bank plc v. Ang Cheng Ho Quarry & Ors [1992] 1 LNS 49; [1993] 1 MLJ 127, an advocate and solicitor should not be precluded from preparing his client's case in greater depth to enhance chances of success. [Emphasis Added]” 34. Maka, kesemua perkara ini melibatkan kos dan perkara-perkara ini timbul akibat keingkaran JD menyelesaikan penghakiman yang S/N t1K1HJzyHEqhfy43oe00VQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 diawardkan sebaik sahaja dituntut oleh JC melalui surat-surat tuntutan sebagaimana dihuraikan di atas. 35. Maka, berdasarkan penilaian-penilaian di atas, Mahkamah berpendapat bahawa kos RM1,500.00 adalah munasabah dalam kes ini. Kesimpulan: 36. Berdasarkan alasan-alasan yang dinyatakan di atas, Mahkamah membatalkan Saman Penghutang Penghakiman yang difailkan dan JD diperintahkan membayar kos bagi prosiding ini berjumlah RM1,500.00 kepada JC, tertakluk kepada fi alokatur. Bertarikh: 18 Oktober 2023 Disediakan oleh, …………………………………. ARUN A/L NOVAL DASS Timbalan Pendaftar Mahkamah Tinggi Malaya Johor Bahru S/N t1K1HJzyHEqhfy43oe00VQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 Pihak-pihak: 1. Tetuan Raja, Darryl & Loh Peguambela & Peguamcara Peguam Pemiutang Penghakiman Level 26, Menara Hong Leong No.6, Jalan Damanlela Bukit Damansara 50490 Kuala Lumpur (Ruj: res.1233759.chk/rbr) … Latifa Haiqa binti Yusoff 2. Tetuan Asiah Abd Jalil Law Chambers Peguambela & Peguamcara Peguam Penghutang Penghakiman No.21, Lorong BDK 1/11 Bandar Damansara Kuantan 26100 Kuantan Pahang (Ruj: AAJ/Masyitah/2023(08)/156) … ASIAH BT ABD JALIL S/N t1K1HJzyHEqhfy43oe00VQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 Kes-kes yang dirujuk: 1. Loi Teck Chai v Kinta Medical Centre Sdn Bhd [2019] MLJU 239; [2019] 1 LNS 400; [2019] MLRHU 257; [2019] AMEJ 0555 2. Khooi Beng Aun v Koh Chin Lean [1994] MLJU 377; [1994] 4 CLJ 138; [1994] 2 MLRH 398 3. Zschimmer & Schwarz GMBH & Co KG Chemische Fabriken v Persons Unknown & Anor (No.2) [2021] MLJU 187; [2021] 3 CLJ 587; [2021] MLRHU 247; [2021] AMEJ 0155 4. CIMB Bank Berhad v Goh Tai Pak & Anor [2009] 1 LNS 1320; [2009] 11 MLRH 858; [2009] AMEJ 0332 5. Leung Kai Fook Medical Co Pte Ltd & Anor v Ninso Global Sdn Bhd [2023] MLJU 1704; [2023] 1 LNS 1531 6. Azlin Azrai Bin Lan Hawari v United Overseas Bank (M) Bhd [2017] 5 MLJ 43; [2017] 10 CLJ 18; [2017] MLRAU 308 7. Mohd Kamal Bin Omar v United Overseas Bank (M) Bhd and other appeals [2018] MLJU 600; [2018] 5 CLJ 657; [2018] 4 MLRA 87; [2018] 4 AMR 924 8. Lim Kai Hee & Ors v Patent View Development Sdn Bhd & Ors [2019] MLJU 723; [2019] 1 LNS 1044; [2019] MLRHU 1407; [2019] 8 AMR 175 9. Peter Runin v Sebiro Holdings Sdn Bhd [2016] 1 LNS 1589 S/N t1K1HJzyHEqhfy43oe00VQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Pengenalan Analisis dan keputusan Mahkamah CLJ 587; [2021] MLRHU 247; [2021] AMEJ 0155 di mana Bin Omar v United Overseas Bank (M) Bhd and other appeals [2018] MLJU 600; [2018] 5 CLJ 657; [2018] 4 MLRA 87; [2018] 4 Kesimpulan:

Tika 2.6.0

AA-42H-8-04/2022

PERAYU Pendakwa Raya RESPONDEN CHITHARTHAN KUMAR A/L JAYAKUMAR

RAYUAN JENAYAH: Kesalahan dibawah Seksyen 6(1) Akta Bahan -Bahan Kakisan dan Letupan dan Senjata Berbahaya 1958 (Akta 357)- Responden mengaku bersalah di atas pertuduhan- Rayuan TPR terhadap keputusan hukuman Hakim Mahkamah Sesyen yang menjatuhkan Bon Berkelakuan Baik 2 tahun dengan 1 Penjamin dengan cagaran RM5,000.00 - Sama ada prinsip-prinsip hukuman diambil kira sepenuhnya dalam menjatuhkan hukuman – Sama ada wajar memberikan perintah dibawah seksyen 294 KTJ ke atas Responden walaupun terdapat hukuman minima selama 5 tahun telah ditetapkan dibawah seksyen 6(1) Akta 357.

22/11/2023

YA Dato' Abdul Wahab Bin Mohamed

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=129a507d-de7c-4d39-b763-e784c63ead0e&Inline=true

22/11/2023 10:18:00 AA-42H-8-04/2022 Kand. 37 S/N fVCaEnzeOU23YeExj6tDg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N fVCaEnzeOU23YeExj6tDg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N fVCaEnzeOU23YeExj6tDg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N fVCaEnzeOU23YeExj6tDg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N fVCaEnzeOU23YeExj6tDg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N fVCaEnzeOU23YeExj6tDg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N fVCaEnzeOU23YeExj6tDg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N fVCaEnzeOU23YeExj6tDg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N fVCaEnzeOU23YeExj6tDg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N fVCaEnzeOU23YeExj6tDg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N fVCaEnzeOU23YeExj6tDg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N fVCaEnzeOU23YeExj6tDg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N fVCaEnzeOU23YeExj6tDg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N fVCaEnzeOU23YeExj6tDg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N fVCaEnzeOU23YeExj6tDg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N fVCaEnzeOU23YeExj6tDg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N fVCaEnzeOU23YeExj6tDg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N fVCaEnzeOU23YeExj6tDg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N fVCaEnzeOU23YeExj6tDg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N fVCaEnzeOU23YeExj6tDg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N fVCaEnzeOU23YeExj6tDg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N fVCaEnzeOU23YeExj6tDg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N fVCaEnzeOU23YeExj6tDg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N fVCaEnzeOU23YeExj6tDg **Note : Serial number will be used to verify the originality of this document via eFILING portal 1u\—a2H—a—uA/2u22 Kand. 37 22,1;/2.-.w ,;-1; .1» DALAM MAHKAMAN TINGGI DI IFOH DALAM NEGERI PERAK DARUL RIDZUAN MALAYSIA RAVUAN JENAVAH N0. AA-42H-B—04I102Z DI ANTARA FENDAKWA RAVA ...PERAVU DAN CHITHARTHAN KUMAR AIL JAVAKUMAR ...RESPONDEN ALASAN PEfl§flAKlMAN N rvcazruuouzzvuzualvq mm Sum INNDIY M“ be used m mm u. nvwvufilv mm; nnmmnnl VII mum Wm FEN§§]jALAN [11 Chllharlhan Kumar all Jayikumar yang mempakan Responder: mam myuan um lelah diluduh dl Mahkamah Sesyen lpoh. Perak Daru\ Rldluan dengan pemmunan dv bawah seksyen 5(1) Akla Eaharvflzhan Kakisan flan Lempan dan Senjata Berbahaya mess (selepas um mker-an sebagal Ana 357) sepenl benkul: “Eansws Kamu, pads 11/a2/2020, /am /emh kmang 900 malam, di J5/an Femans, Ta/nan Kampar Peldana, 31900 Kampsr, Perak, df dalam dae/an Ksmpsr, dl dalam Ivegen Perak, [arm dl temps! swam man merm/rkr ssbr/ah (1; [wish parang anggaran pan/any Isbm kurang 60cm Demu/u plasllk berwams Mam berxerfa sanmg bslwama hilam, lsnpa ksbenaran yang 55!! man dibenalkan, olsh yang dsmrkian kamu telalv mehakukan suazu kesalahan yang pom dmukum dlbswah Seksyen 5(1) Akra sahanmnan Kakxsan dan Letupan dun 56711516 Eemahaya 1955 " [21 Responder: telah mengaku sa\ah ke alas perluduhan tersebul din Tuan Hakim Mankamah sayen (erpe\a;ar (selepas Im dlsebul sebagax Tuan HMS) lelah membenkan penntah ban berkelakuan bank dlbawah Seksyen 294 Kanun Talacara Jenayah (sewage: w msebm Km sekama 2 tahun dengan ban jamln nM5,cuc no dengan secvang paruarmn lerhadap Raponden Fm-ik Fsmiakwzan yang merupakan Perayu «flak IN Ncaznzuuuzzvuzxmfla -ms Sum In-nhnv WW he used m mm u. nvwhuflly mm; dun-mm VII mum pm mintma Denjara 5 term yang dnetapkln G1 bawan sekeyen am Akte 357 yang benewenen dengan pnnstp yang mtexenxen aetem kes PP v. Loo Chcon Fen [supra] mnyetexen eepem benkut "One or tne mum consteerattone m the asssssmenl pr sentence Is a! mums me quasbon of pupnc tnterest on M15 pmnt r used only quote a passage rmm the judgment of Hllbely J tn Rex v Kennetn John Ba// 35 Cr. App R 154 as follows /n aeciatng me apptopn'ate sentence e com should always be gmdsd by Gsrfam consrdsranans rne mt and Imempst ts the pucnc Vllslesf me crvrmnal /aw ts putzltcty en/awed, not only wttn tne omoct pi pumshmg cnme, but also /I! tne nope of preventing II A pmper sentence, peeeeu In public, serves me puptte mleresl In Mm ways It may deter otners who mtgttt be tempted to try cnme es seemrng lo otter easy money on me supppsmpn, that n tne otreneer ts caught and pnmgnt te /uslrce, the punishment mu he neg/Iglblz Such e sentence may etsp deter the Damcular crlmmal tram commnttng a crime again, or tncmw tum to turn rmm e cnmtnet to en npnesr we The ppm tnteteet ls /ndeed ss/vsd, and best served, 1/ me oflbndsl IS induced to tum rwm cmninal ways to honest living. out law does not, therefor!‘ fix the sentence rare psmcu/er cnme, Du! fixes a maximum sentence and reeves to the court to dec/do what /5, wrlhm that mextmum, tne n IN Ncainz-Duzxvuixnnlflfl -we Sum In-nhnv wm be used m mm s. nflmnnflly mm; dun-mm VI] snutm Wm! appronnete sentence for each crrrrurrat trr the parricu/er citcurrrstsrrces or each case. No! ahry rn regard (0 each crime, but rh Isgsrd to each chmma/, the Court hes me rrght aha me duly ta decrue whettrertu be lament orsevels “ [21] Maka untuk kemudahan mjukan, Matrkemeh ml perlurunkan sehenagren danpada alasan perugtuakruaru Tuan HMS yang memadi asas kepaaa Tuan HMS unluk membenkan pennlah an bawah seksyen 294 KTJ keatas Respormen walauplm lerdapat hukuman mrmma eetema 5 |ahun letah dmetapkan amawah seksyen 6(1)Ak1a 357 “(M Suitnbili onsoundovar [311 I shall now rum to the questrarr ofwllethera caun can impuse arr order of a bound over or bond of good bsnawour under: 294 arms cps be Imposed [321 The High Court In the case err? v Nisan Ali all Abdul Razak (2015) D cu 5 2016] 12 MLJ 293 had occasrorr to consider wnemer a bound of gaod aetreutour may be ardersd tor eh otrerroe under Ac! /n addrsssmg the rssue, Zulktlh sekeu observed ‘[15; On thrs issue, thrs court has consulted the Hansam to see the background In! the emerramerrt and the purpose 0/ words used Ins on record o/the Hansald wtrere vs Tush Mohamed Hampe am Maldlfl rsepehg) had suggesteu la the Deputy 11 ru Ncazru-uuzzvuzrqnma we sum nu-uhnv M“ be used m mm we nflmrrnflly mm; dun-mm vn mutm wrm Mrnratar vs Damk Dr Haji wan Junsidi mam ./aslar ma! a spemrc provision In be prowded In me sard sectiun dune law to nus! me pawer ortne court to make any order oi binding over for good oenaviour and 5/50 a review to be made for a spacrai consrderatron ior ‘plead guilty‘ cases (p as, on 1o/mam Mn respect, i do not find such pmwsion or sxosptron In me said /aw Therefore, I! is still opined to the court to inrpoaa an order for a bond 0! good behaviour and Idr plead guilty cases tho coun nu the wide discretion to irnpoee any sentence based on sentencing principlus. rnar makes me ”no( loss man 5 yurs imprisanmum tann' s not mandatory (or piano purity cues omerwrss in otnar wants‘ the noun‘: hands It: not tied by me ‘minimum or not lass than 5 years imprisonment term". This purposrve interpretation oi the em /aw does not lead to aosormty "(Emphasis added] R3] Farmer. are High Calm In another case or Karrrarusharn zakaria v. PP [2013] 2 CL./ .728 referred rn ms Parliamentary debate on me proposed arnsndrnsnis on 10 4.2014 more Ahmad aacns .10 (now .1) ooservsd At page 51 of me Hansarfl oaied in/4/2014 it IS stated 13 IN Ncazru-aL:uzzvuExtn|D9 -we Sum IHIWDIY M“ t. to... M mm a. mom-r mm; mm. VII AFVLING wnxi “Panama, Yang Bemormar menysbur psrsoa/an nuxuamsn yang K/la Ielak d: smi sebagal msmpunyar nnnmmm sentence dan max Dnlsh dlhukum kulaflg danpada nu dan maksrmumrvya memang ma lam! Semua yang mempunyai /amen ssbsgar psguam Yang Elsmomvat, m/.a msllhst pelkara my asnaku ma bsrass brmhang kerana ndak ad: member! laluan bud! Imam kepade plhak hakim semasa men/a/ankan kiss in: d/' mahkamah. Akan map! manan says mule dsngan samkn mukadrmah Ssbsnamya waraupun dalam undsng-undang rm mengatakan bahawa rmmmum sentence nu balapa Iahun dan maksrmumrlya berapa ranun Maknarlye Kzmu d/a cndapar: be/sis/an dr Dawah undsng- undang nn, hukuman yang Dskal haklm Den kspada ma ralah rmmmum map. dalam mass yang same man Pengerusx. kuasa mahkamah dalam mengenakan hukuman kepada pesalan, dalam sudur ram max pemah mamml Urnpamanya m Dswah ssksysn 294 Karmn Tslsczra Jsnaysh yang mana mahkamah bolsh memban nan berks/akuan bark, same rempon yang dnezapkan men mahksmsh" Hence, it Is parentiy clear «m we lrvtemlon of mo pauiamonu is to lnnblt I poison convicted under me pmvmon to be permitted :9 be IN Ncaznz-uuzzvuzxmfla ‘Nuns Sum In-nhnv WW he used m mm u. nflmnnflly mm; dun-mm VII mum pm mused on bond for god nnwiour, accommg to the satisfaction at the com Thrs was man affinned rn zna Cass af PP u Hassan An (supra), wrrere me courx oIAwea/ had amrmed we order or bound over under ssctirm 394 CPO handed down bylhs Hrgn Com! "(Emphasis added]. /34] The pracaamg /ms or praoedanzs make obvious that rmmtthsfandtng ma rmnumun tmpnsonmsnt sanranoa ornua years I-Vvvrded for under s.6 (1) 0/ (he Ad, ma court rs slill vested mm ms mscrsuon as 10 wrrsmsr to Impose me Imprisonment term and wmpplngs ar to order a ornamg over /ndsarl, rt /5 not uncommon Iora judge, dapanurrrg on ma tans arra crrcumsiances ofmdmdual case to exelc/se its dfscretron in grarmr-g an older or bound ovar var mrs owenca wruon Inc/ude rna cases of Ronni. Enqln v PP [2019] 1 ms sea; and PP v. Wan Nu-Iul mum Wan Hizanmddin [2017] I CL] 139 in won me Hrgn Caurt had over me years gmmed orders or bound over /or onances under 5 6(1) onna Act. as mar as u may, /am rnrndvu/ 0! me We posrnon that a court must consmsr an laclols raravan: to ma case mar Included ma aggravarrng and mmganrrg tenors, belars decrdmg tn grant an order of bmdmg over. [35] Rsvsmng to ma present case, n /5 my nndrrrg may mere was also no such samng as or/uoa to n Kamarusnam Zukarvs (supra) The accused was merely fuund hawng m hrs passes.s1L7Iv or (he weapon as rsflsclsd rn we charge and me raczs den!/ed Irorn me 15 IN Ncazru-uuzzvuixlnma -ma sum nu-nhnv wm he used m mm a. nflmnnflly mm; dun-mm vn anurm pm reams There was navel any awasnce led In court wmcn Imkea the accused to any newly winch Iaus under the alolessrd ssmng Neither was then? any swderlce cl his im/on/amen! m the same " [221 Dalam menenlukln benluk hukuman yang palm dwjaluhkan‘ raxoa sesualu ks new amen perhauan secara keselumhan agar pnnswp undangundang berkanan dengan hukuman max lersmah gun: Semasa membmcangkan laklor keaesuanan pennlah “bound over an bawaln szsa Kn yang xanan dlbenkan‘ Tuan HMS memuk msrmuk 2 kes mm PP v Hanan Ah an Abdul Razak [ms] 9 cu 554 dan Kamsmsham Zakzna V PP [2013] 2 cm 325 dalam memberl yemmbangan banawa Raspanaen sesuaw dnberlkan satu pewepasan dengan bun dw bawah s 294 KTJ [23] Du dalam kes Hassan Au [sum], Mahkamah dalam kes (ersemn berpendapat bon adalan uaak seaual dmenkan kepada OKT d1 dalam kes tersebul kerana cm kes lersebut semas: malakukan kesalzhan aiungkap seas kesmahan mencun den bukan pesaxan muda nu mukasural 593 Kes — ‘[30] In my consrdersd mdgmsnt, (he order for oinumg over is not nscsssanly to be when In every case and u Is no! surfab/e to be Invoked agamsz ms respondent m me mszanv case because (a)7'ns raspandsn! had been convicted under s 350 of the Penal code for cornrmmng (nan m a 1emp/s (K/ang Magrsvrstes Cam MM3-MRS-132-4-15) and sentenced to two months’ Imprisonment rmm IN Ncaznzuuuzzvuzxmfla -ms Sum In-nhnv WW he used m mm u. nflmnnflly mm; dun-mm VII mum pm lna male or ans: (13 AM! 2016) Thls orranpa was commmed a day below me Iaspandent was anesved lor the olranca In ma case In Ihls appeal Hence, ll IS reasonable to lll/ellhe purpose olms respondent blmgmg rne weapon ls not ‘purely llmocsllf lo: sell-pmzscupn" as he elaunad, and (D) The respondent llllblmed ms trial court that he was womlng as 5 security guard to secure ma wateltallk ill the PIDX/mlty when M919 ls H0 dirlgfil as to lender mm to have a lawlul means for blinglng such weapon at a publlc pleas. /311 Therefore, a band In: good behzwlour, In my pplmon, would oe sultabls to be app/led to lsenagers DI moss who do no: Inland to cause lryuly la amers, lfllhel man to a cognltlve adull who was also caugnl oommfmng Mall like [he respondent in this case In short, [he respondent has lo (Like me consequences af ma orlence ne had Colnmmsd unul and unless there 15 all HXCGDIIOHSI clloumslancs (0 prove othslwlse " [24] Ma dlbandmgkan oengan Responden on aalam layuan in?‘ Responden semasa keladian berumur 32 tahun dan merupakan seorang dewasa dan kemxa ssdang melakukan kesalahan an bawah s.S(1)Akta 357 lumt melakukan A kesalar-an lain m bawan Akla Pengangkunan Jalan 1951 yang rnehpalkan kelela 'xlon' Tuan HMS Ienalu memberi penekanen Vaklor kemanuslaan flu mana Respcnden menmsn pernauan kapada laxea ballawa Respunden sudah berkanwm flan mempunyal 3 :7 IN Ncainz-uuzzvuixlmfla ‘Nata Sum ...m.. M“ be used m mm ua mum-y mm; flan-mm VI] mum Wm arang anak dan merupakan pennnggung keluarga lanpa mengambnl ma Kesalahan lam mm: dnlakukan semasa kqaauan [251 Manakara an da\alm kes Kamarusham [supva] pula. senjala Ievhbal mun pisau kecnl yang duumpai dv pakel, Mahkimah Tmggx .1: Kata Bharu mengganhkan hukuman pemava 5 (ahun kepada ban 3 294 KTJ dw dalzm kes felsebul selalah menflaw lakta kes felsebul D1 mukasurat 329 kas - (2) The amendment nfs s onne Act was to turn me nsiny numoer ai Planned senaus crimes such as usmg lllssnns and dangerous weapons In rubbery, murdfl extomon, gang ngnrs ck: However, [here was no such scenano much could srgnrfy the! me appe//an! ye, na-1 /us! come back from a gang /rglvl, or s blood-slsmsd psrang was Iound on mrn, nnlhmg of that son‘ happened In Mrs case The Inference ma: can/d be dlawn m favour at the appe//am was me: me weapon, wmch was /us: a small kmls kept In my pocket of ms trousers, was more for ssfflpmtscrton " [251 D! da\am kes Kamamsham [supra], Mahkamah Tmggx berseluju pennlah ban yang celan dlkenakan ferhadip on uflam kas carssmn dengan mermuk fakxa Kes |ersebul dam berpemapat on semasa me\akukan kesa\ahan pemlhkan senjala hanya nuammm seruah semau-.- mata an dalam Bakel dan bukan menunjukkan OKT lembal dengan yenayah lam D: mukasural 334 kas - m «N Ncaznz-uuzzvuzyqnlfla warn sum In-nhnv WW he used m mm n. mnn.u-y mm; mmn vn mum pm -[201 Back to llls lnslanr case, Ihis mun would Ilke lo rslterats Ma! Ills amendment was ta curb the nslrlg number OI planned serious cnmss such as usmg menus and dangerous weapons ln Iobbely, murder. extorriulv, gangland llgms em. allndugn sucll elemenls were not home an! from me facts uf mls can [21] mars were no such xcensno as samurai swords found In (he mm: 0/ ma Car lla was assumed dnvmg mm few others mslds, whlch could slgnm, ma: he and the rust Iladjusr come om [mm a gang llgm. OI a blondslamed pelang, ar lung knife ruulld on mm, wlllcll could all be lnranad [hat me accused had stabbed someone afler a llgm or s rubbery are Nolh/Hg of that sort happened Hsrs ln [hrs case as (here was nothing to lllal srracl nlenliom-yd In ma -llasll slasafsn” /n ma absence afall those lacks, the mlelsnos that could be drawn m favour of me accussd /n this case, a/Del"! an unlawful pcssssslon was ma: me weapon which was lusl a small K/llfe kspl VI ms llousers packet was mola rd: sulfa prurecllorl [27] Msnakala lam dalam kes dl nadapan Mahkamah lm buleh dlbezakan uangan fakla ualam kes Kamarusham {supra}, yang mans nasal slasaxin kes menunjukkan Respomien semasa kejadlan rnenggunskan kerela udak berdaflar. nambor plat Ildak ssma dengan number enjln din nomad: sls, lesen alau cukal jalan palsu dan uada 19 IN Ncailuuuuzzvuixlmflfl -ma Sum! ...m.mm be used M mm l.. mm-y MIN: dun-mm VI] nF\uNG pm msuvans. Responder: mengaku salah ke atas A perluduhan dx barwah Akta Pengangkman Jean 1937. Kelembalan ksalahan Vain mesklpun ax usman Akla Pengangkman Jalan 19:37 merupakan sam vamr pemberalan yang menunjukkan Respanden bukan mermliki senjala semanaanaca |eIap| oendamng umuk me\akukan ;enayah Vam kerana msnggunakan kevma Mon‘ Number casxs can enml kereca Respormen misk berdaflan ksrela sebenar yang menggunskan nombav plat WLL 5850 pemlhk assl adalah panama Tan Xun Ze yang beralamat dl Kedah. [25] Mankaman berseluw dengan pendman pmak Perayu bahawa iakla bahawa parang duumpal berada da\am rmhkan Rssponden mu dx lepi lempal duduk pemandu sebelah kanan bukan pemmkan serusna semala-ma|a mam senjala teraebul amat berpotensw untuk dusalshgunakan oxen Respunden yang mesa semasa kqadlan menggunakan Kerela Klan Sepemmana dalam kes yang avujuk dx alas‘ Iujuan ulama pemnlukkan 55(1) Akla 357 dlbenkan hukuman minimum pemsruaraan 5 talwn unluk mengekang pnayih Ierincang sepem rampskan alau samun beusenjaca, pemerasan flan ;enayan jawanan yang lam [291 Se\am nu, perhezaan m dakam kws Hassan An [supra] nan kes Kamarusham [supra] dengan Kes ax hadapan Mahkamah ada\ah ‘ems seruata yang mminm men Respunden on daflam kes Hassan Ah [supvajy semata adalah pxsau berukuvan so cm, manaKa\a kes Kamarusham [supra]. senjala yang dnemux adalah pisau yang dflumpaw dalam paxeq seluar Manakalay Respunden pula menylmpsn seruala Iallu parsing bemkuran so am yang bukan senjala yang xecu sepem kes-kes dx alas. Dalam kes Asham am Ah.R|nnun v. PP [2015] 1 LNS 1103‘ Mahkarnah dx dalam kes ievsabut mengakaxkan hukuman pemara 5 20 IN Ncaznz-uuzzvubqmug ‘Nuns sum ...n... wm be .15.. m van; M m\g\ruHIy mums dun-mm vn mum puns! nerpuasham dengan kepulusan Tuan HMS man memiallkan rayuan lerhadap nukuman/pennlah yang dualuhkan R gkasan Pam 5;; [31 Pada 112 2020 ‘am lebih kumng 9 oo malam. Responden telah mcanan kehkz lnemanflu kereqa pems Hyundm Gem no pie! WLL 5550 dan hasfl Derneriksaan o1er- Dengadu 1e1an memumnau sebflah parang an (em temps! duduk pemandu sebelah kanan (RR, Jld 3, m/s 24) [4] Has! slasilan 1aniu\, Resuonden pada mesa kelaman lelah melakukan 4 kesalahan lain Rsspanden mm were» mengaku salah ke atas keempalempat kesalahan dan dmukum sepeni berikm - a s 71:) AR! 1957 ianu menggunakan kerela Hyundai Gen yang max dldarflarkan seem sah. hukuman denda RMZSDD (gagm bayam hman penjaraj: b s.1us(3>(1> APJ 1957 Iantu kesalahan menggunakan nnmbor permaflaran yang mpamerkan adalah mak sepadanan dan bukan mmx kereta yang mgunakan, hukuman denda RM5,ou0 195931 bayar 2 bman venisray c s1oa(3>(B) APJ 1937 mu kesa\a|1an menggunakan Vesen kenderaan molar yang paw hukuman denda RM5,ocu 1gag-11 bayiv 2 bulan P¢"l3'3)1 IN Ncazm-Lzuzzvuzxmlflq -ms s..1.1...m..w111;. used m mm 1.. DVVEVHMVIY mm; dun-mm VII mum pm lihun bag: kss pengakuan salah an bawah 56(1) Akla 357 bagl pamlhkan parang Parang duumpal an dalam beg an alas nba on dalnm kes (ersetmt semasa sadang duduk ' kevust penumping nadapan. Tuan HMS av dalam kes (evsebul Iekah mempemmbangkan 5294 KAJ den menaapau (iada fsktor mmgasl m dalam kes Iersehut dan memaluhkan hukuman pemara mlmma 5 lahun D: mukasuvat 11 Kes - [391 ms com found that me /named Ssssmns /udgs had nghlly constdarad me vanous moms Including me were Interest of me Accused/Appellant and me /50! man he had pleaded gumy wmcn had saved a consrdsrab/e amount o/(he court's (me He had also consrdsrsd and made a nndrng of lac: mat a bound over under semen 294 or me cpc was not suitable. and ma rmpussd ms mmlmum ssntsnca of five years Impnsonmsn! as ar/owed by Act 357 The Sessions mugs had sard arpags 16 o/me Anpeev Record. viz-. -14 Walau pun oxrma/< dtwakrh pegusm, says We msngammlkua Iaktnrlaktar penngan nukuman yang mesa dmmbang alen Mshkamah says re/ah memmbangksn psngakusn ss/an on Says mu: msngsmmmra pengakuan sa/an yang drbua! yang mana ta/ah msnjrmsl mass dan kos ssmua Drhak Sayaluga mengamni/mra umur on yang sudah bsmmur 52 lshun sepsmmana dmystskan da/am kertas pertuduhan 11 IN Ncainz-Lzuzzvuzxmfla -um Sum ...m.. WW be used m yaw u. nvwhufllli mm; dun-mm VI] muNG pm 15 Says /uga msmmbangkan hukumalv atau pennlah yang lam yang wbenavkan alen mang- undang sepsm penman a1 Dawah Seksysn 29: Ks/um Acme Jenayah daram memmbsngien huku/nan yang sssusl Ks alas OKT 15 Namun demlklan, saya mendapaf/' oemasaman rayuan ow darn Iakta kss yang dtkemukakan, saya mempnn weds Iaclnr mrlrgasi unruk says mervmbsngkan melsmkan mslustuhkan hukuman mrmma psluara 5 lam/n sspenr zfiperuntuksn o/en Am " [40] Thus, II-vs cam was nuns mnstdsrsd View mar mere was no reason to drsfulb me Iindmg 0/ (ha sessrons judge as he had considered 3/! ma rare»/anz factors ma: shouhi be taken mm account [30] Kembalx kepada kes ml, seruala yang dlrmliku olah Rsspenden ssmasa rampasan dlbuat adalah rrlempakin sebllah parang yang herukuran so cm din bukan semala alau plsau kscu. Juga ndak dapa\ dwpemkaxkan bihawa Responder: semasa mam Ikmya menggunakan kereaa max berdallan Mada Insurans‘ cukal ;a|an palsu dan sebsgalnya yang (elah gags! dwambll ma uleh Tuarv HMS da\am mampsmmbangkan kesesualan dibenkan penntah hon an bawah 3294 KTJ Sehubungan dengnn nu‘ penman yang dlhenkan aleh Tuan HMS pamz muban dan dlgarmkan dengan hukuman lam my hukuman peruara se\ama mlnlma 5 lahun sebagaimina ying mpemnmxan dvbawah seksyen em Akta 11 IN Ncaznz.-uuzzvniuqnlfla -ms Sum In-nhnv WW he used m yaw n. nflmnnflly mm; dun-mm y.. mum pm 357, memandangkan ferdapal laklar yang Indak dwmlaw o\eh neuau (rum kes PP v Ling Loh Moo 1-upn} Kulmgulan 1311 Berdasarkan kepada aapauarmapatan dv alas. penmah dengan bun uerkeraxuan bawk m bawah seksyen 294 KTJ yang mbenkan man Tuan HMS xe alas Responder: mum dan mketeptkan Mahkamah mu membenavkan vayuan Perayu m mana Respcnden dikenakan hukuman penjari sekama 5 camm nude: 25 1 2023 din salu sabatan Tankh 20 11 2023 n [ABDUL WAHAB BIN MOHAMED) HAKJM MAHKAMAH TINGGI MALAYA IPOH, PERAK w Ncaznz.-Lzuzzvuzxmvq 'NnI2 Sum IHIWDIY M“ be used m mm u. nvVWuH|Y mm; mm. VII mum pm Flhakvmhuk. mm Farm: 5. Comnarly ham nmak Pevayu Fefiuamcara flan Pefiuambela Bag: pmax vzymn Banbuan Gunman Keoangmn Kulla Lumpuv C064 Pusal Pervauanaau mm Digsng, Julan Dagann Besar ssooo Ampang s.u..gm Tel on 15041715 Ru] lwlnnctl-ybgk/Vnflall-C.) amen cmummseggmau mm fimbalan Pendakwa Ray-I nag‘ mm Rtwnndln Jibilan mum Neglli Blhagwan Pcmuanin an Raryunn Jarmyah Am 5, No as, Lal 461 Pvasim A. Pemamn Perdana azmu mmmya u .1 590(2) APJ 1987 alas kesalahan kerela yang dugunakan max mempunyaw unsurnns. hukuman denda RM5001gaga|bayar 2 mmggu perusra) [5] Pmak pendakwaan semasa menghulahkan lakcov pemberalan hukuman telah memahon Tuan HMS memmbang vakxa bahawa Reapunuan semasa melakukan kesnmhan di bawah 55(1) Akla 357 luml mevakukan kesalahan lam [51 Plhak Perayu bermqah bahawa Responden dihadapkan dengan 3 number he: Aaflu keselumhannya hma penuduhan. Unluk kesalahan mama mem-mu seruala bevdasavkan fakta-lakla Res :1. mana semata duumpax ax dalam sabuah kenderaan aan mg: mak maanarkan m Ada\ah meragm aan mg: (idak dikelahul apakah nnuan sebenar penggunaan kendevaan dan penggunaan senjata dan .uga mengambfl kira Ilada sebamng rekod lampsu dan ma mengamhvl kua bagw perluduhan umuk memlhkl semata adalah waub penjara Iwdak kuvang 5 Lahun flan .uga dengan sebalan nu menumukkan belapa senusnya nukuman ml an s Iundang-undang [31 Rapanden semasa kanaman berumur as lahun dan mempakin sanrsng devwasa dan Ketxka sedang melakukan kesalahan dw bawah s5(1) Akfa 357 mm! me\akukan 4 kesalahan Vain d1 hawah Akla Pengangman Jalan 1937 yang melmalkan Kereta “kIon' IN Ncazru-Lzuzzvubqntflq -ma Sum IHIVVDIY wm be used m mm u. mnnn-y mm; dun-mm VII mum pm [91 Tuan HMS terialu memben penekanan lakuav kemanuswaan dengan memben pemalnan kepada lakta bahawi Responden sudah berkahwm flan mempunyal 3 orang flan marupakan penanggung keluarga canpa mengambil ma kesalahan Vain mm: uuaxuxan semasa kziaduan Hu n Raapondan [101 Paguambela 1.e1pe\a]ar Responder: bemujah bahawa pennean bun benkelakuan balk selama 2 Iahun dengan secmng pemamln bersena bayavan RMs,ooo cu yang dlkanakan ke alas Responder: adalah wayar flan advl dengan memI7ua| rujukan kepada kes PP v. Abu Kahnr (2001) 4 cu can kas PP v. Hanan bdul bunk (zoom) 9 cu su [11] Pnhak Respcmden menegaskan bahawa penmah bun berkelakuan balk selama 2 tahun dengan searang pemamm berserla bayavan RMSDOO no yang dlkenakan ke acas Responder: hams mkekalkan betdasavkan kepada «am dv mans Respcnden belumur as can-m, udak aaa rekod lampau dzn ]uga parang yang ayumpan dalam kerela lmak aumxan dengan sebarang kes Ienayah [12] Selemsnya, anegaskan bahavm A paluduhan yang dwkankan dengan Responuen admah a. bawah ma Pengangkutan Jalan flan dlbenarkan oleh Tuan HMS un|uk membayar denda din bukannya kes yenayah max ads sebavang buklv yang mengauxan xesalanam kesalahan dv bawah ma Pengangkulan .la\an dengan parang yang azyumpai an da\aru keveta yang mgunakan unluk sebnrang kes jenayah IN Ncazm-uuzzvuzxymbg -ms Sum IHIWDIY WW be .15.. m van; M myy.u., mm; dun-mm VII mum puns! man A! e uluun [131 Adalah menjadl undang-undanu yang mantap bahawa mahkamah yang mendengar rayuan Ivdak akan mengubah atau msngganggu benluk aan Ismpoh hukuman yang amuaz aleh mahkamah yang memmcarakan sesualu kes flu selagl wa memahml pnnsxp unaang— undang berkanan dengan hukuman kecuall hukuman levsebul Ieflam ringan (mamleslly inadequate) alau Ierlalu beta! (manneauy exusswe) (rmuk kes PP v. summan Ahmad (19921 4 cu 213:‘ flan Adnm man V. pp [ms] 1 cm :3) Da\am kes snamunananda Jiyltlllku a PP [1931] 1 LNS 139 , Raja Azlan shah, Haxnn Mahkamah persekuluan lelah berkata seven? benknt "ls me sentence harsh and manrfsst/y excessive’ we wowd paraphrase iv m ma way As (hrs rs an appeal agamst me exemrse by me learned judge 0/ a mscnanan vested m mm, ls me sentence so far oulsme me nanna/ drscrenonary mm as (0 enable (ms com in say mar /ts nnpeemon mus: have involved an arm or law or some descnpfrolfl I nave Had nccasmn Iv say e/sewhsm, (hat me very concept onudrctal drsclelron mvolvss a ngm to choose between more man one pessme caurss al acnon upon which there is mom for reasonable people to now differing oprmons as m whmh :5 to be preferred rnaz rs quire /nsvrtsble Human name being what :1 IS, different judges apprymg me same pnncrp/as at me same me In the same counlly to sr/rular facts may some!/mes mach different conclusrons {see Jamson v Ja/mssan [1952] ac IN Ncaznz-Lzuzzvuzxmfla -ma sum In-nhnv M“ be used m mm a. nflmnnflly mm; flan-mm VII mum pm 525 at 549) If V: lar the reason that some very conscmnnous judges have mougm n thsrr duly to visit pammnar muss wan exemplary sentence,‘ wmlsl olhers equally oonsclsnlmus have though! :n men duly ra wew the same Clfmes [he Iamsncy. Therefore sentences do very m apparently similar umumstancss mm me new or mmd affhe psmcular judges /2 rs tonne mason also that this ooun has sam rt agsm snd agam mar n wm nu! norms//y mtsrfb/e with sentences, and the pom»/ny or even me pmnammy mar another court would nsvs Imposed a dtilerent sentence IS NO! suffcient 99! se, In warrant INS court’: mlederence " 114] Nada yang sama lelah dmcapkan oleh YA Azahar Mohamed JCA [pads kelik: Mu) da\am kes PP v. lumakviahrun Subramamam 5 Or: mm 9 cm 443 sepeni benkul “Mengrkuf pnnslp pengnukumsn yang sedrs eds , ssllsp omng yang bersalah akan msnsnma hukl/man yang ssllmpsl dengan benluk kssalshan yang dr/akukan Mahkamah hsndak/ah msruaruhkan Imkuman menurul undangmndang unluk msnenrukan supaya hukuman yang dikanakan temadap pssaran rtu ad:/, bersesuatan dsn setlmpal dengan apa—apa mslanan yang drlakukannya rtu Adslah jugs menjadr pnnstp un.1ang- Lmdtmg yang manlap bahawa Mahkamah yang msndsngsl myuan ndak senamsnya oampw Iangan derlgarl nukuman yang mkenakan men hakrm psrmcaraan dan Se/a/Lmya ndak akan msnukal hukuman meramkan IN Ncaznz-uuzzvuzxmug -um sum ...m.. wm be .15.. m van; M m\g\ruHIy mums dun-mm VIZ mum puns! Ianya Derpuss hall bshawa hukuman yang dyatuhkan o/eh hsklm bsrkenaan itu Iemyala ems! nae»: memadai am mencukup: atau kale/(all/an arsu lrdak san emu pun Iidsk mempakan hukuman yang wajar memandangksn semua iakla yangamaankan, atau bansws Mshkamah lersebur )9/ss lelsalalv drda/am memakar pnnsip yang berm dalsm pemlaian hukuman. Pnnsrp urrdany-undsng yang menerm/ken Kawalan flan semakan Ksputusan berkailan dengan hukuman Isiah drganskan dengan jelas dalam kss Bhandu/anlndn Jaynllnke v P P119311 1 ms 1:: dan kes om’ Sod Anwar umnrm v PP [2902] 2 cu 49" [15] Sstemsnya, dalam menanlukan swmasv yang membmehkan mahkamah yang mendengar rayuan wzuar campur Iangan darn mengganggu hukuman yang «euan dualuhkan oleh mahkamah renuan, Mahkamah perlu berganmng kepada gans panduan yang telah dllempkan oleh Mahkamah Riyuan dalam kes PP v. Ling Len Hoe (201514 cu ass seperli benkul \ me sentencing judge had made a wrung decision as to the proper yacmal bas4s for the sentencing. u there had been an errnr an the pan ohhs man page m appracxaung me mafenal has Maeed before him. m the senlenne was wrung m pnnc\p\e, or IN Ncazm-Lzuzzvuzxmlflq -ma Sum IHIVVDIY Mu be used m mm u. nvwhuflly mm; dun-mm VII nF\uNG wrm N the sentence Imposed was mamieslly excesswe ar Inadequate [16] [Islam masa yang sama, adalah pelmng untuk memasuken bahawa mahkamah rendah membevi pemmbangan kapada swat kesalahan, keadaan bagawmana kesa\ahan mu dvlakukan‘ adakah wa mellbalkan keganasan den wga Valar be\aKang pesalah sebagawmina yang mpumskan dalam kes Mohamed Jnloh Abdullnh A Anor v. PP [1947] 1 ms 1: sepem benkm m our view no sentence can be assessed by a simp/e mamsmancal /Umlu/i MEILV factors mus! be taken /nlo account accaldmg to Ms circumstances of each Indmdual case. //1 Mat Isspecl we wnul-1 draw attelmon to the mailers which should be taken mra accawvl m fixing pumshments as set our m Ha/:bury‘s Laws ol England (Her/sham Ed/(ion) volume 9, para 355 ms cam, m Itxmg me punishment for any panrourar mms, mu take me consrdelanan me name nf II-vs am-ance, me mumsrances m which n was commmed, me degree 0/ deliberation shown by (he ollender. me pmyocanon which ne has received, /1 Ms cnme rs one of vmlsnce, [he antecedents orme pnsorrer up to me me or sentence‘ ms age and chsrsclsr [171 Cadangan yang sama telah diperkalakan dalam kes PP v. Loo Chaon Fm[197s] 1 LNS 102 sepem berlkut IN Ncazm-uuzzvubqnlfla -we Sum In-nhnv WW he used m yaw we nvwhuflly mm; dun-mm vn .mm mm In respect at sentencing mere can be anly general gu/dslmss. No two cases can have exactly Me same lacls Io ma mmulest delay! Fans :10 amsr from case to case and ummalely each case has to be deemed on us own merits In pmztrce sentences do dflfer no! only rrom case to case am also from com to court All Ihirrgs bemg equal mess vananons are memame rf onry becsuss or the Human e)emenr mva/vsd am, of course, [here must be umua to permissible varialrons [ca] Sehubungan dengan nas—nas yang dnhenlangkan an atas‘ Mahkamah berpendapal adalih wmar untuk Mahkamah wu menehlv bahagxambahagwan panung yang lsrdapal da\am alasan pengnannman Tuan HMS unluk mennax sama aaa pnnslp undang-undsng berkailan dsngan hukuman oalan dlbenkan pemmbangan sewalarnya meh Tuan HMS [19] Hasn danpada pememallsn Mankarnah (erhadap alasan pengnakunan yang dlkemukakan nleh Tuan rms aacara nngkasnya Mankamah menaapan Tuan HMS telah member: pemmbangan Ke atas Iaklcr-lakmr kepemlngan swam‘ keberalan kesa\ahan yang dflakukan, pengakuan salah‘ watax dan mar nenakang, (iada xesawanan lampau dan kesesuain umuk dlkenakan hon berkelakuan balk [20] Wa\au uagaunanapun‘ Tuan HMS Ierkllaf damn mengwkulw pllnslp-pnnslp hukuman yang dmyaiakan dalam penghaklmannya flu apabua mernban keularuaan kepenlmgan penhadn Responden yang mengziay iaklar kepenllngan awam wawaupun Izvdapal hukuman m IN Ncaznz-Lzuzzvubqmuq -ma sum In-nhnv wm he used .a van; me m\g\ruHIy mm; dun-mm VII mum puns!

Tika 2.6.0 & Pytesseract-0.3.10

BA-25-39-05/2021

PEMOHON SCP ASSETS SDN. BHD. RESPONDEN 1. ) PENGARAH TANAH DAN GALIAN SELANGOR 2. ) Pentadbir Tanah Daerah Petaling 3. ) Pentadbir Tanah Daerah Hulu Langat

In this application for judicial review pursuant to Order 53 of the Rules of Court 2012, the applicant, being the proprietor of various strata parcels held in 5 different strata developments is essentially seeking to quash the decision of the authorities in respect of the issuance of Parcel Rents (‘Cukai Petak’) concerning the applicant’s parcels

22/11/2023

YA Dr Shahnaz Binti Sulaiman

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=3c1543f4-a40d-4aad-bc77-9109259f4d07&Inline=true

1 BA-25-39-05/2021 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA PERMOHONAN SEMAKAN KEHAKIMAN NO.: BA-25-39-05/2021 Dalam perkara Hakmilik Strata di Pusat Dagangan Phileo Damansara 1, Pusat Dagangan Phileo Damansara 2, Damansara Intan Business Park, Leisure Commerce Square dan Dataran Palma kesemuanya terletak di Negeri Selangor Darul Ehsan; Dan Dalam perkara Pengiraan dan Kutipan Cukai Petak terhadap Parcel Hakmilik Strata di Pusat Dagangan Phileo Damansara 1, Pusat Phileo Damansara 2, Damansara Intan Business Park, Leisure Commerce Square dan Dataran Palma, Ampang; Dan Dalam perkara seksyen 23C, 23I dan 81, Akta Hakmilik Strata 1985 dan Kaedah- Kaedah Hakmilik Strata 2017 Dan Dalam perkara Peruntukan Pengurusan Strata 2013; Dan Dalam Perkara Aturan 53 Kaedah-Kaedah Mahkamah 2012; 22/11/2023 12:39:31 BA-25-39-05/2021 Kand. 37 S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 BA-25-39-05/2021 Dan Dalam Perkara seksyen 25 Akta Mahkamah Kehakiman 1964 dan perenggan 1, Jadual kepada Akta Mahkamah Kehakiman 1964. ANTARA SCP ASSETS SDN BHD (No. Syarikat: 1058403-K) …PEMOHON DAN 1. PENGARAH TANAH DAN GALIAN SELANGOR 2. PENTADBIR TANAH PETALING 3. PENTADBIR TANAH HULU LANGAT …RESPONDEN-RESPONDEN JUDGMENT Introduction [1] In this application for judicial review pursuant to Order 53 of the Rules of Court 2012, SCP Assets Sdn Bhd the applicant, being the proprietor of various strata parcels held in 5 different strata developments is essentially seeking to quash the decision of the authorities in respect of the issuance of Parcel Rents (‘Cukai Petak’) concerning the applicant’s parcels. S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 BA-25-39-05/2021 Reliefs Sought [2] The applicant sought the following reliefs in this judicial review: (i) Declaration that the formula used to compute and calculate the Parcel Rent under Rules of Strata Titles (Amendment) 2017 (“Amendment Rules 2017”) is unreasonable, irrational, illegal and/or ultra vires of the provisions under the Strata Titles Act 1985 (“STA 1985”) and/or Strata Management Act 2013 (“SMA 2013”); (ii) Declaration that the formula used to compute and calculate the Parcel Rent payable by the applicant in respect of its parcels for the years 2018, 2019, 2020 and 2021 is unlawful, illegal and unenforceable; (iii) Alternatively, a Declaration that the respondents have failed and/or neglected to compute and/or calculate the correct Parcel Rent amount payable by the applicant in respect of its parcels for the years 2018, 2019, 2020 and 2021 in accordance with the provisions of STA 1985 and Rules of Strata Titles (Amendment) 2017; (iv) Order of Certiorari to quash all bills of Parcel Rent issued in respect of the applicant’s parcels for the year 2018, 2019, 2020 and 2021; and (v) Order of Mandamus to direct the respondents to re-calculate and re-compute the amount of Parcel Rent payable in respect of the applicant’s parcels for the year 2018, 2019, 2020 and 2021 reasonably and fairly and/or in accordance with the provisions of STA 1985 and SMA 2013. S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 BA-25-39-05/2021 Grounds for Judicial Review [3] In this application for judicial review, the applicant put for the following grounds: (i) the method of computation and calculation of the parcel rent rates by the respondents is based on the Amendment Rules 2017 and Schedule VI thereto; (ii) the computation and calculation is unfair, inequitable and/or inconsistent with the concept of share units under the STA 1985 and SMA 2013; (iii) the calculations by the respondents are against the very scheme and spirit of introducing the parcel rents, which was meant to replace quit rent and not meant to implement new tax; (iv) the respondents’ computation itself is also not in accordance with the Amendment Rules 2017; (v) the respondent’s decision to implement the computation, imposition and collection in the manner set out by them are unreasonable and irrational, which resulted in drastic and illogical increase in the rates; and (vi) the respondents have failed to take into account relevant consideration and laws/regulations in imposing the new rates under parcel rent. S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 BA-25-39-05/2021 Factual Background [4] The facts of this application as garnered from the documents filed by parties are as follows. The applicant is the registered proprietor of 15 parcels in 5 different strata developments/complexes. The particulars this 5 strata developments may be encapsulated as: (a) 7 strata parcels in Pusat Dagangan Phileo Damansara 1 (“Parcels in PD 1”); (b) 5 strata parcels in Pusat Dagangan Phileo Damansara 2 (“Parcels in PD 2”); (c) 1 strata parcel in Damansara Intan Business Park (“Parcel in Damansara Intan”); (d) 1 strata parcel in Leisure Commerce Square (“Parcel in LCS”); and (e) 1 strata parcel in Dataran Palma (“Parcel in Dataran Palma”). (These parcels will be referred to collectively as “the applicant’s Parcels”) [5] There are different Management Corporations established in each of the abovementioned schemes/developments as the applicant’s Parcels are within different stratified developments. [6] As the applicant’s Parcels are within different stratified developments, there are different Management Corporations established in each of the abovementioned schemes/developments. S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 BA-25-39-05/2021 [7] The method of implementations and payments of Quit Rent by the applicant differed according to the practices in each complex and its Management Corporations. [8] For instance, in respect of the parcel in Damansara Intan, the Management Corporation would bill and collect directly from the applicant the apportioned Quit Rent payable by the applicant. [9] In respect of the other 4 complexes notably the parcels in PD 1, PD 2, LCS and Dataran Palma, there was no direct billing to the applicant. Instead, the Management Corporations therein would use ‘service charges’ collected from the applicant and other parcel owners to pay the Quit Rent. [10] In May 2019, the applicant received Parcel Rent bills in respect of Parcels in Damansara Intan, LCS and Dataran Palma. [11] In July 2019, the applicant received Parcel Rent bills in respect of parcel in PD 1. [12] The Parcel Rent bills received were for 2019 as well as for amounts outstanding for the year 2018. [13] While the applicant did not receive any Parcel Rent bills for the year 2018, it had in fact paid for the Quit Rent bills for the year 2018. [14] According to applicant the Parcel Rents charged from 2018 are high and unreasonable compared to Quit Rent. The changes in rates are summarized and reproduced as follows: “(a) Parcels in PD 1, the total rates for: (i) Quit Rent for 2018: RM5,053.44; S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 BA-25-39-05/2021 (ii) Parcel Rent commencing 2018: RM301,480.00; The Parcel Rent is 60 times more than Quit Rent. (b) Parcels in PD 2, the total rates for: (i) Quit Rent for 2018: RM1,925.91; (ii) Parcel Rent commencing 2018: RM134,968.00; The Parcel Rent is 70 times more than Quit Rent. (c) Parcel in Damansara Intan, the total rates for: (i) Quit Rent for 2018: RM2,613.16; (ii) Parcel Rent commencing 2018: RM40,202.00; The Parcel Rent is 15 times more than Quit Rent. (d) Parcel in LCS, the total rates for: (i) Quit Rent for 2018: RM11,063.80; (ii) Parcel Rent commencing 2018: RM54,450.00; The Parcel Rent is 5 times more than Quit Rent. S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 BA-25-39-05/2021 (e) Parcel in Dataran Palma, the total rates for: (i) Quit Rent for 2018: RM413.81; (ii) Parcel Rent commencing 2018: RM9,685.00; The Parcel Rent is 23 times more than Quit Rent.” [15] By way of a letter dated 30.05.2019, the applicant, inter alia, sought confirmation on the formula for the computation from the first respondent and also requested that the rates be recalculated and reduced in respect of parcels in Damansara Intan, LCS and Dataran Palma. As there was no response, the applicant issued 2 reminder letters dated 24.06.2019 and 23.07.2019 to the first respondent. [16] Also, by way of letter dated 24.07.2019, the applicant issued a similar letter as the above to the first respondent followed by a reminder letter dated 23.09.2019 in respect of the parcels in PD 1. [17] As there was no response from the first respondent, acting in an abundance of caution, the applicant appointed a firm of professional Surveyor Consultant (“the Consultant”) to verify the method of calculation and computation by the respondents. The applicant informed the first respondent of the appointment and sought for a quick resolution by way of its letter dated 12.06.2020. [18] The consultant completed the verification. The consultant concluded that there is a difference in the method of calculation used by the respondents and the consultant. The consultant, under the instruction of the applicant, issued letters dated 15.06.2020 to the first respondent regarding the same. S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 BA-25-39-05/2021 [19] By way of letters dated 15.07.2020, the first respondent alleged that the Parcel Rent in the State of Selangor was carried out pursuant to the new amendments to Strata Titles Act 1985 and furnished examples of the calculations. [20] As the applicant’s parcels are within different stratified developments, each governed by its own Management Corporation, the applicant's method of implementing and paying Quit Rent varied based on the practices observed in each complex and its Management Corporations. As an example, for the Parcel in Damansara Intan, the Management Corporation would invoice and directly collect the apportioned Quit Rent from the applicant. [21] In respect of the other 4 complexes notably the parcels in PD 1, PD 2, LCS and Dataran Palma, there was no direct billing to the applicant. Instead, the Management Corporations therein would use ‘service charges’ collected from the applicant and other parcel owners to pay the Quit Rent. [22] Regarding the other four complexes, specifically the parcels in PD 1, PD 2, LCS, and Dataran Palma, the applicant was not directly billed. Instead, the Management Corporations in those complexes utilized 'service charges' collected from the applicant and other parcel owners to cover the Quit Rent. [23] In May 2019, bills for Parcel Rent were issued to the applicant for the parcels in Damansara Intan, LCS, and Dataran Palma. In July 2019, the applicant received Parcel Rent bills for the Parcel in PD 1. S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 BA-25-39-05/2021 [24] The bills for Parcel Rent that were received covered the year 2019 and claimed outstanding amounts for the year 2018. Although the applicant did not receive any Parcel Rent bills for the year 2018, the applicant had made payments for the Quit Rent bills for that year. [25] The applicant contends the charges for Parcel Rents from 2018 are excessively high and unreasonable when compared to Quit Rent. The rate variations are outlined as follows: (a) Parcels in PD 1, the total rates for: (i) Quit Rent for 2018: RM5,053.44; (ii) Parcel Rent commencing 2018: RM301,480.00; The Parcel Rent is 60 times more than Quit Rent. (b) Parcels in PD 2, the total rates for: (i) Quit Rent for 2018: RM1,925.91; (ii) Parcel Rent commencing 2018: RM134,968.00; The Parcel Rent is 70 times more than Quit Rent. (c) Parcel in Damansara Intan, the total rates for: (i) Quit Rent for 2018: RM2,613.16; (ii) Parcel Rent commencing 2018: RM40,202.00; The Parcel Rent is 15 times more than Quit Rent. S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 BA-25-39-05/2021 (d) Parcel in LCS, the total rates for: (i) Quit Rent for 2018: RM11,063.80; (ii) Parcel Rent commencing 2018: RM54,450.00; The Parcel Rent is 5 times more than Quit Rent. (e) Parcel in Dataran Palma, the total rates for: (i) Quit Rent for 2018: RM413.81; (ii) Parcel Rent commencing 2018: RM9,685.00; The Parcel Rent is 23 times more than Quit Rent. [26] Through three distinct letters dated 30.05.2019, the applicant, among other things, sought clarification on the computation formula from the first respondent. Additionally, they requested a recalculation and reduction of rates for parcels in Damansara Intan, LCS, and Dataran Palma. The applicant sent two reminder letters on 24.06.2019 and 23.07.2019 to the first respondent. [27] On 24.07.2019, the applicant sent a letter to the first respondent concerning Parcels in PD 1. A reminder letter dated 23.09.2019, followed. Due to the absence of a response from the first respondent, the applicant, exercising caution, engaged a professional Surveyor Consultant to verify the calculation method S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 BA-25-39-05/2021 used by the respondents. The applicant notified the first respondent of this appointment and urged a prompt resolution in a letter dated 12.06.2020. [28] The verification process by the Consultant was successfully completed, revealing a disparity in the calculation method employed by the respondents compared to that of the Consultant. Under the applicant's direction, the Consultant issued letters on 15.06.2020, notifying the first respondent of these findings. [29] In letters dated 15.07.2020, the first respondent asserted that the Parcel Rent in the State of Selangor was conducted in accordance with the new amendments to the Strata Titles Act 1985, providing examples of the calculations. Principles relating to Judicial Review [30] The grounds for an application for judicial review are illegality, irrationality, procedural impropriety and proportionality. [31] In the Federal Court case, Akira Sales & Services (M) Sdn Bhd v. Nadiah Zee Abdullah & Another Appeal [2018] 2 CLJ 513; [2018] 2 MLJ 537, the liberal approach on judicial review in R Rama Chandran v. The Industrial Court of Malaysia & Anor [1997] 1 CLJ 147; [1997] 1 MLJ 145 has been re-emphasised at pp. 547 to 548 (CLJ); pp. 571 to 572 (MLJ) as follows: [45] In the same appeal, Edgar Joseph Jr FCJ (Eusoff Chin in agreement) said that an award could be reviewed for substance as well as for process: S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 BA-25-39-05/2021 It is often said that judicial review is concerned not with the decision but the decision making process. (See eg Chief Constable of North Wales Police v. Evans [1982] 1 WLR 1155). This proposition, at full face value, may well convey the impression that the jurisdiction of the courts in Judicial Review proceedings is confined to cases where the aggrieved party has not received fair treatment by the authority to which he has been subjected. Put differently, in the words of Lord Diplock in Council of Civil Service Unions & Ors v. Minister for the Civil Service [1985] AC 374, where the impugned decision is flawed on the ground of procedural impropriety. But Lord Diplock’s other grounds for impugning a decision susceptible to Judicial Review make it abundantly clear that such a decision is also open a challenge on grounds of ‘illegality’ and ‘irrationality’ and, in practice, this permits the courts to scrutinise such decisions not only for process, but also for substance. In this context, it is useful to note how Lord Diplock (at pp. 410- 411) defined the three grounds of review, to wit, (i) illegality, (ii) irrationality, and (iii) procedural impropriety. This is how he put it: By ‘illegality’ as a ground for Judicial Review, I mean that the decision maker must understand correctly the law that regulates his decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 BA-25-39-05/2021 judges, by whom the judicial power of the state is exercisable. By ‘irrationality’, I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’ (see Associated Provincial Picture Houses Ltd v. Wednesbury Corp. [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the courts’ exercise of this role, resort I think is today no longer needed to Viscount Radcliffe’s ingenious explanation in Edwards v. Bairstow [1956] AC 14, or irrationality as a ground for a court’s reversal of a decision by ascribing it to an inferred though undefinable mistake of law by the decision maker. ‘Irrationality’ by now can stand on its own feet as an accepted ground on which a decision may be attacked by Judicial Re view. I have described the third head as ‘procedural impropriety’ rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 BA-25-39-05/2021 down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. Lord Diplock also mentioned ‘proportionality’ as a possible fourth ground of review which called for development” [32] Further, the meaning of error of law has also been explained in the case of Syarikat Kenderaan Melayu Kelantan Bhd v. Transport Workers Union [1995] 2 CLJ 748; [1995] 2 MLJ 317 in the following words: “Is neither feasible nor desirable to attempt an exhaustive definition of what amounts to an error of law, for the categories of such an error are not closed. But it may be said that an error of law would be disclosed if the decision-maker asks himself the wrong question or takes into account irrelevant considerations or omits to take into account relevant considerations (what may be conveniently termed Anisminic error) or if he misconstrues the terms of any relevant statute, or misapplies or misstates a principle of the general law.” [33] The test applicable is the objective test as was held by the Federal Court in the case of Titular Roman Catholic Archbishop Of Kuala Lumpur v. Menteri Dalam Negeri & Ors [2014] 6 CLJ 541; [2014] 4 MLJ 765, as follows: “(1) (per Arifin Zakaria Chief Justice) It is trite that the test applicable in judicial review now is the objective test. In considering whether the Court of Appeal had applied the correct test, it is pertinent to consider the whole body of the judgments of S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 BA-25-39-05/2021 the judges of the Court of Appeal and not by merely looking at the terms used in the judgments. The courts will give great weight to the views of the Executive on matters of national security. The Court of Appeal had applied the objective test in arriving at its decision. Had it applied the subjective test, it would not be necessary for it to consider the substance of the first respondent’s decision.” Applicant’s submissions [34] According to the applicant, the method of computation and calculation of the Parcel Rent rates by the respondents is based on the Amendment Rules 2017 and Schedule VI thereto. The computation and calculation is unfair, inequitable and/or inconsistent with the concept of share units under the STA 1985 and SMA 2013. [35] It was further submitted by the applicant that the calculations by the respondents are against the very scheme and spirit of introducing the Parcel Rents, which was meant to replace Quit Rent and not meant to implement new tax. It was argued that the respondents’ computation itself is not in accordance with the Amendment Rules 2017. [36] The applicant argued that the respondents’ decision to implement the computation, imposition and collection in the manner set out by them are unreasonable and irrational, which resulted in drastic and illogical increase in the rates. And that the respondents have failed to take into account relevant consideration and laws/regulations in imposing the new rates under Parcel Rent. S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 BA-25-39-05/2021 [37] The implementation of Parcel Rent ensures that the parcel owners receive bills directly from the Land Office (Pejabat Tanah) and are responsible to pay directly, unlike previously under Quit Rent, where parcel owners are to pay Management Corporations or the Joint Management Bodies, as the bills are issued to those bodies. [38] The new subsections 23C(1), 23C(8) and 23C(9) STA 1985 states as follows: (a) the Land Administrator is to determine the amount of rent; (b) it is to be computed on the basis of a rate per square metre for each parcel; and (c) where the rent in relation to any parcel is or includes a fraction of a ringgit, it is to be rounded up to one ringgit or to the nearest ringgit above the amount so computed. [39] By way of the subsidiary legislations and regulations namely the new Rules 13(1) and 13(2) Amendment Rules 2017 and the new Schedule VI under the Amendment Rules 2017 as well as the Direction and the Guidelines, the respondents have used ‘sen unit’ in the method of computation and calculations. [40] The respondents whilst using sen unit as the base for the calculation, and without converting into ringgit, had maintained the result of the calculation (which is supposed to result in sen unit) as if it has been calculated in ringgit. This has resulted in an enormous and unjustified increase, which is not within the purpose or object of the Act. S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 BA-25-39-05/2021 [41] Under the new Rule 14, the State Authority has a discretion to vary the rates of the Parcel Rent specified in Schedule VI as it deems fits, but the respondents have till to date insist on maintaining the unjust method of calculation. [42] According to the applicant, in making policy decision, the authorities ought to take into consideration the impact of the decision against the socio-economic settings of the material time. [43] The applicant’s case is that the respondents’ calculations are incorrect, erroneous and not in accordance with the provisions of the law. Relevant considerations were not taken into account, which resulted in illogical, unreasonable, inconsistent and absurd outcome. The Parcel Rent rates varies between 5 to 70 times more than the rates that were payable under the Quit Rent regime. Respondent’s submissions [44] According to the respondents, section 4C of the Strata Title Act 1985 [STA] that was inserted through Strata Titles (Amendment) Act 2016.The effective date on the imposition of the Parcel Rent shall be based on the notification in the Gazette and as far as Selangor is concerned, it shall start on 1.01.2018 (P.U(B) 174/2017) is not disputed. [45] Section 23C (1) of the STA confers powers on the State Authority among other on determination of the Parcel Rent despite to endorse the effective date for the Parcel Rent to be imposed in Issue Document of Tittle (IDT). [46] Kaedah-Kaedah Hakmilik Strata 2015 was amended and few provisions was inserted therein namely regulations 13-17 through S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 BA-25-39-05/2021 Kaedah-Kaedah Hakmilik Strata (Pindaan) 2017. The regulation 13 is the formula that was gazetted to be implemented in Selangor as far as the calculation of parcel rent is concerned. [47] The imposition of the Parcel Rent is authorized by the law and within the ambit of the written law namely the Act and regulations. [48] Kaedah-Kaedah Hakmilik Strata 2015 & Kaedah-Kaedah Hakmilik Strata (Pindaan) 2017 is legally promulgated within the power granted by the law. In other words, section 81 of the STA is the enabling provisions for both regulations to be passed. [49] Since the law authorizes for the imposition of the Parcel Rent and the subsidiary legislation had explained on method and calculation and this is empowered, thus, the law shall be obeyed and the plaintiff at this juncture cannot raise an issue of authority the respondents has in imposing the charges. [50] The applicant did not deny that the method of calculation is correct, however, the applicant’s view is that the outcome shall be further divided into another 100 to get the outcome in RM. [51] Since the admission is clear and unequivocal despite the provision of Order 27 rule 3, entitle the judgment or orders to be made, the respondents submit that this court must take cognisance of this admission and therefore making the adverse order to the applicant by dismissing the application. [52] The calculation method used by the respondents are based on the formula that is prescribed by the regulations and thus, it is the law. Based on the formula, it has already been shown that the formula had taken into account in dividing into 100. S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 BA-25-39-05/2021 [53] Mathematically, if not dividing into 100 as per the formula as per prescribed by the law, the figure is 100 times higher. [54] This is not the case that the imposition of the Parcel Rents are arbitrarily imposed against the applicant but the imposition is based on the power empowered by the act and the formula is in accordance to the regulations enacted originating its power from the said Act. [55] This method used by the applicant is obviously against the formula prescribed by the regulations. The applicant’s contention is that, to get the amount of Parcel Rent in RM, the multiplier on Kadar Cukai Mengikut Daerah dan aktiviti had been converted into RM by moving 2 decimal points to the left automatically and multiply with keluasan petak atau block sementara and the outcome to multiply Faktor Cukai Hakmilik Strata. [56] The purpose of dividing into 100 is to get the result or the outcome in RM form and not in cent form. Following either of the above formula above, the result is identical. The applicant on the other hand, had moved the formula of Kadar Cukai Mengikut Daerah dan Aktiviti one from cent form to RM form initially was correct. However, the effect of moving that into RM, had faded away the functionality to divide into 100 as per the formula. [57] The duty of this court is to give effect of the law and not to create another law and formula as per the direction of the applicant. [58] The respondent submitted that the law is clear on its point and its promulgation is authorized by the law, it is not for the applicant to S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 BA-25-39-05/2021 come to the court to challenge the implementation as against the law. The calculation as correct and precise. Decision of this court [59] At the crux of this application for judicial review is the calculation of the for the rates imposed for the Parcel Rent which was previously known as Quit Rent. It is the applicant’s contention that the calculation was done erroneously. [60] There is no dispute as to the validity of the provisions of the law passed by the Selangor State Assembly. What is in dispute is the calculation of the said Parcel Rent. [61] According to the applicant, the calculation is erroneous and mathematically incorrect. [62] The first respondent, in response to the issues raised by the applicants, have alleged that calculation ought to be as follows: 31,053 𝑚𝑒𝑡𝑒𝑟 𝑝𝑒𝑟𝑠𝑒𝑔𝑖 𝑥 330.70 𝑠𝑒𝑛 100 𝑥 1 = 𝑅𝑀102,692.271 @ 𝑅𝑀102,693.00 [63] The Kadar Cukai Mengikut Daerah dan Aktiviti is in sen unit and therefore the result should be in sen unit. It was argued that the logical and appropriate result of any calculation ought to be in sen unit which is then converted into ringgit. This is done by dividing the 100. The rate is then rounded up in accordance with subsection 23C(9) of the STA 1985. S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 BA-25-39-05/2021 [64] The respondents had, in calculating the Parcel Rent, used the sen unit in its calculation. The applicant argued that the calculation of the Parcel Rent using the sen unit as base for the calculation had calculated it as if it is in ringgit, which had resulted in an erroneous calculation. [65] The applicant submitted that when a decision of a public authority is contrary to exiting laws and regulations, the decision is liable to be quashed. To support this contention, the applicant cited the case of Abdul Hakim @ Ramizu bin Othman & Ors v Menteri Dalam Negeri, Malaysia [2018] 12 MLJ. [66] Pertaining to the issue of error in calculation, the applicant cited the case of BX Steel Posco Cold Rolled Sheet Co Ltd v Minister of Finance & ORs (FIW Steel Sdn Bhd, intervener) [2021] 7 MLJ 604. [67] The respondents referred to the section 4C of the STA that was inserted through Strata Titles (Amendment) Act 2016. The effective date on the imposition of the Parcel Rent shall be based on the notification in the Gazette and as far as Selangor is concerned, it shall start on 1.01.2018 (P.U(B) 174/2017) and this is not disputed. [68] Subsection 23C (1) of the STA confers powers on the State Authority among other on determination of the Parcel Rent despite to endorse the effective date for the Parcel Rent to be imposed in Issue Document of Tittle (IDT). [69] The respondents cited section 4C of the STA, which was introduced through the Strata Titles (Amendment) Act 2016. The commencement date for the imposition of Parcel Rent is contingent upon the notification in the Gazette. In the case of Selangor, it is S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 BA-25-39-05/2021 acknowledged to commence on 1.01.2018 (P.U(B) 174/2017), and this fact is not contested. Subsection 23C (1) of the STA grants authority to the State Authority, among other things, to determine Parcel Rent, irrespective of endorsing the effective date in the Issue Document of Title (IDT). [70] To implement the aforementioned amendment, the Strata Titles Rules 2015 were amended, incorporating several provisions through the Strata Titles Rules (Amendment) 2017, specifically regulations 13 to 17. Regulation 13, encompassing the formula officially gazetted for application in Selangor regarding parcel rent calculation, is outlined as follows: Keluasan Petak atau Blok sementara (mp2) x Kadar Cukai mengikut daerah dan aktiviti x faktor cukai hakmilik strata @ Kadar minima setiap petak 100 [71] From the information provided, the multiplier involves the Keluasan Petak or Block Sementara per square meter, Kadar Cukai Mengikut Daerah dan Aktiviti, and Faktor Cukai Hakmilik Strata or Kadar Minima Setiap Petak. The Kadar Cukai Mengikut daerah dan Aktiviti is specified in Jadual IV to the Strata Titles Rules (Amendment) 2017. The rate for calculation within the aforementioned formula is contingent upon the location of the parcel and its corresponding activity. S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 BA-25-39-05/2021 [72] For Faktor Cukai Hakmilik Strata, according to the Afidavit Jawapan Responden Pertama in Enclosure 19, it had been determined through Arahan Pengarah Tanah dan Galian Selangor Bilangan 2/2019 that was approved by the Majlis Mesyuarat Kerajaan Negeri ke 17/2017 (MMKN) that is exhibited as AH-2 and its formula is as below: [73] Based on the provisions cited above, it is clear that the imposition of the Parcel Rent is in accordance with the provisions of the law. This court is satisfied the imposition of the Parcel Rent is in accordance with the provisions of the law. Section 23C of the STA empowers the imposition of the Parcel Rent. [74] Relating to the calculation of the Parcel Rent, paragraph 18 of Enclosure 19 the affidavit of reply of the first respondent Aziz bin Hairon had set out the formula for calculation. This was not denied by the applicant. However, the applicant insists the calculation must be further divided by 100 to obtain an outcome in ringgit. See: Vithal Kumar a/l Jayaraman v Azman bin Md Nor [2010] 2 MLJ 67 and Perwira Habib Bank (M) Bhd v Hj Abdullah Hj Sulaiman & Anor [1985] 2 CLJ 489. [75] The respondent argues that this is not a case where the Parcel Rent was imposed arbitrarily. There is a formula which must be used to calculate the Parcel Rent. This formula is in accordance with the regulations which have been enacted. Keluasan tanah lot (M2) Jumlah keluasan Petak dan Blok Sementara (M2) S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 BA-25-39-05/2021 [76] The applicant contents that to get the amount of Parcel Rent in RM, the multiplier on Kadar Cukai Mengikut Daerah dan aktiviti had been converted into RM by moving 2 decimal points to the left automatically and multiply with keluasan petak atau block sementara and the outcome to multiply Faktor Cukai Hakmilik Strata. [77] The respondents contend, this method used by the applicant is obviously against the formula prescribed by the regulations. [78] Based on the Statutory Formula as below the respondent showed this court that will result in the same answer: Keluasan Petak atau Blok sementara (mp2) x Kadar Cukai mengikut daerah dan aktiviti x faktor cukai hakmilik strata @ Kadar minima setiap petak 100 First Method: Kadar Cukai mengikut daerah dan aktiviti 100 = 330.70 100 = Keluasan Petak atau Blok sementara (mp2) X = RM102,692.27 S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 BA-25-39-05/2021 Second Method: Keluasan Petak atau Blok sementara (mp2) x Kadar Cukai mengikut daerah dan aktiviti 31,053 x 330.70 = 10,269,227.10 (A) = A ÷ 100 = RM102,692.27 [79] The reason for dividing by 100 is to express the result or outcome in Malaysian Ringgit (RM) rather than in cents. Using either of the formulas mentioned above yields identical results. [80] This court is of the view, the applicant initially made the correct adjustment by converting the Kadar Cukai Mengikut Daerah dan Aktiviti formula from cent form to RM form. However, this transformation into RM diminished the functionality of dividing by 100 as specified in the formula. [81] With respect, having considered the submission by both parties, this court agrees with the contention by the respondents. [82] After converting from cent form to RM form, the applicant is required to immediately multiply it by the size of the parcel. The resulting value is then multiplied by 1 (Faktor Cukai Mengikut Strata), representing the Parcel Rent to be imposed. The applicant continued the process, despite having already converted Kadar Cukai Mengikut Daerah dan Aktiviti from cent form to RM form. After multiplying it by the parcel size, they erroneously divided the S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 BA-25-39-05/2021 outcome by 100 again. It appears that the division by 100 was applied twice, which in the view of this court is incorrect. Conclusion [83] For the abovementioned reasons, this court finds no illegality in the laws pertaining to the calculation of Parcel Rent. This court is satisfied that the computation, imposition and collection of the Parcel Rent are not unreasonable or irrational. [84] This court therefore dismisses this application for judicial review. Costs of RM 5,000.00 subject to allocator. Date: 22 November 2023 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 BA-25-39-05/2021 Counsel: For The Applicant: Ling Chee Wei, David Soosay, Ashok Kandiah a/l K. Shanmuganathan Tetuan Ho, Loke & Koh Advocates & Solicitors A-1-1, Megan Avenue 1, 189, Jalan Tun Razak, 50400 Kuala Lumpur. general@hlk.com.my +6 03 2166 2882 For the Respondent: Khairul Nizam bin Abu Bakar Kamar Penasihat Undang-Undang, Tingkat 4, Podium Utara, Pejabat Setiausaha Kerajaan Negeri Selangor 40503 Shah Alam, Selangor. S/N 9EMVPA2krUq8d5EJJZ9NBw **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

JA-29PB-19-01/2023

PEMIUTANG PENGHAKIMANSINGER(MALAYSIA) SDN.BHDPENGHUTANG PENGHAKIMANLIM KEAN BOON

Sama ada permohonan dari JD untuk pelepasan dari kebankrapan menurut seksyen 33 Akta Insolvensi 1967 wajar dibenarkan

22/11/2023

Tuan Arun A/L Noval Dass

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=4463984d-5966-4337-90fe-3801318ee3e3&Inline=true

1 DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA DALAM PASCA KEBANKRAPAN NO.JA-29PB-19-01/2023 PERKARA : LIM KEAN BOON … PENGHUTANG PENGHAKIMAN EX-PARTE : SINGER (MALAYSIA) SDN BHD … PEMIUTANG PENGHAKIMAN ---------------------------------------------------------------------------------------------------------- ALASAN PENGHAKIMAN ----------------------------------------------------------------------------------------------------- 22/11/2023 13:24:29 JA-29PB-19-01/2023 Kand. 12 S/N TZhjRGZZN0OQ/jgBMY7j4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Pengenalan 1. Menurut perenggan 8 Laporan Ketua Pengarah Insolvensi (selepas ini dirujuk sebagai Laporan KPI) Penghutang Penghakiman (selepas ini dirujuk sebagai JD) telah bekerja sebagai agen kepada majikan untuk menjual barangan Singer dan akibat kegagalan pembeli membuat pembayaran hutang, tindakan diambil terhadap JD. 2. Pada 14.5.13, satu Penghakiman Ingkar telah diperolehi terhadap JD di Mahkamah Tinggi Alor Setar atas permohonan Pemiutang Penghakiman (selepas ini dirujuk sebagai JC). Pada 14.5.13, JC telah memfailkan tindakan Kebankrapan di Mahkamah Tinggi Alor Setar. 3. Pada 3.9.14, Perintah Penerimaan dan Perintah Penghukuman telah diperintahkan terhadap JD di Mahkamah Tinggi Alor Setar di mana JD tidak hadir semasa perbicaraan tersebut. 4. Seterusnya, JD telah memfailkan Penyata Hal Ehwal JD pada 11.1.15. Ketua Pengarah Insolvensi (selepas ini dirujuk sebagai KPI) telah memperakui dua (2) bukti hutang iaitu hutang JC berjumlah RM215,878.39 dan hutang Malayan Banking Berhad berjumlah RM15,782.10. S/N TZhjRGZZN0OQ/jgBMY7j4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 5. Seterusnya, JD memfailkan permohonan untuk pelepasan menurut seksyen 33 Akta Insolvensi 1967 (selepas ini dirujuk sebagai Akta Tersebut) pada 12.1.23. KPI mengemukakan Laporan KPI bertarikh 7.6.23. Menurut Laporan KPI tersebut, baki kredit estet terkini berjumlah RM30,567.87 yang memungkinkan pengisytiharan dividen sebanyak 10.95% secara pari passu kepada kesemua pemiutang. 6. JC membantah permohonan untuk pelepasan oleh JD tersebut dan memfailkan Afidavit Jawapan bertarikh 2.2.23 untuk membantah permohonan JD. Analisis dan keputusan Mahkamah 7. Seksyen 33(1) Akta Insolvensi 1967 (selepas ini dirujuk sebagai Akta Tersebut) memperuntukkan bahawa:- “(1) A bankrupt may at any time after being adjudged bankrupt apply to the court for an order of discharge, and the court shall appoint a day for hearing the application…” 8. Dalam hujahan bertulis JC, JC berhujah bahawa jumlah wang yang telah dibayar JD kepada JC adalah cuma RM18,899.63 setakat 14.2.19 dan terdapat jumlah baki tuntutan berjumlah RM149,146.39 yang masih belum dijelaskan oleh JD. Maka, JC berhujah bahawa JC akan diprejudis sekiranya permohonan ini dibenarkan dan akan mewujudkan precedent yang tidak baik. S/N TZhjRGZZN0OQ/jgBMY7j4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 9. Mahkamah juga merujuk kepada Laporan KPI yang merumuskan bahawa permohonan JD tidak wajar dibenarkan kerana dividen pertama yang boleh dibayar kepada pemiutang adalah hanya 10.95% dan bankrap masih boleh membuat pembayaran demi kepentingan pemiutang. 10. Mahkamah dalam hal ini bersetuju dengan hujahan JD bahawa jumlah keberhutangan yang masih belum ditunaikan JD tidak boleh menjadi faktor utama dalam menentukan permohonan JD menurut seksyen 33 Akta Tersebut dan Mahkamah tidak seharusnya memberi penekanan yang tinggi terhadap faktor tersebut. Perkara ini ada dijelaskan dalam kes Re Mohana Sundari M Subramaniam Ex P United Prime Corporation Bhd [2004] 5 MLJ 227; [2004] 1 CLJ 624; [2003] 3 MLRH 719; [2004] 2 AMR 141 di mana Mahkamah memutuskan bahawa:- “I am also of the view that the amount of the debt still owing to the creditor is not a factor which the court should place too much reliance on when considering an application to be discharged from bankruptcy… Another factor which is altogether not to be taken into account is the fact of whether or not the bankrupt is in a position to afford and continue paying the monthly installments. Nowhere is it stated in the provisions of the Act or in the case law analysis cited hereinabove that such a factor is to be taken into account and the court should be slow in accepting such an argument.” S/N TZhjRGZZN0OQ/jgBMY7j4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 11. Prinsip kes Mahkamah Tinggi tersebut telah disahkan Mahkamah Rayuan dalam kes Dato’ Lim Huah Leong v Engtex Marketing Sdn Bhd [2016] 5 MLRA 457 seperti berikut:- “[42] The creditors also took issue with the appellant's substantial amount of debt which remained unpaid. With respect, we find that this issue is irrelevant to the present discharge application. It is trite that an application for a discharge is not to be rejected on the grounds that all of the creditor's debt have yet to be settled. The very promulgation of a discharge procedure is a statutory expression that a bankrupt may be released even before satisfying all the debts (see The Law and Practice of Bankruptcy in Malaysia by Khoo Kay Ping; Re: Ang Ah Kang [1993] 4 MLRH 488; [1994] 2 CLJ 738). The wisdom of the Parliament in enacting s 33 and in not stating a fix limit upon which discharge may be accorded echoes well with the rational for bankruptcy law which is not so much that of punishing but rather of providing an orderly administration of the bankrupt's estate so that the creditors may be paid (see Re: Chong Kim Far; Ex-Parte Danaharta Urus Sdn Bhd [2013] 6 MLRH 493; [2013] 10 MLJ 500). Applying this to the present case, as far as the amount of debt is concerned, it is undoubtedly a very large sum. But then again one must be mindful of the fact that there is no limit set under the Act which discharge is barred. The huge amount of debt reflects the fact that a big business, when it fails, tends to fall in a big way. The fact that a judgment debtor is in a position to afford and continue paying the monthly instalments is also of no consequence as it is not provided for in the Act, nor has been decided judicially that it is a factor to be considered (see Ng Kok Wah v. UMW Industries (1985) Sdn Bhd [1995] 1 MLRH 616; [1995] 2 CLJ 284.” S/N TZhjRGZZN0OQ/jgBMY7j4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 12. Seterusnya, undang-undang adalah mantap bahawa bagi maksud “telah melakukan kesalahan” (has committed any offence) dalam seksyen 33(4) Akta Tersebut, kedua-dua elemen pertuduhan di Mahkamah dan sabitan terhadap JD perlu dipenuhi. Dalam hal ini, Mahkamah merujuk kepada kes Mahkamah Rayuan Dato’ Lim Huah Leong (supra) di mana Mahkamah memutuskan bahawa:- “[27] Further, one can be said to be guilty of committing an offence under the Act only if the bankrupt is charged in court by the DGI for that offence. The meaning of the words "committed any offence" in s 33(4) of the Act has been duly considered in the case of Development & Commercial Bank Bhd & Ors v. Loke Theen Fatt [2009] 4 MLRH 118; [2010] 5 CLJ 583. David Wong Dak Wah J (as he then was) had this to say: "The word committed in s 33(4) of the Act meant that the bankrupt must have been charged in court by the DGI for that offence. Since the respondent had not committed any offence under the Act as specified under s 33(4) of the Act, it followed that the application for the respondent's discharge must be dealt with pursuant to s 33(3) of the Act." In the case of In Re: Zanuldin Ahmad; Ex-Parte: Wong Siay Patt & Anor [2007] 5 MLRH 183, it was held that the twin elements of a charge and a conviction must be had before a bankrupt is said to have committed an offence under the Act or under the Penal Code. Similar stance was reiterated in the case of In Re Joshua Tan Pin Pin; Ex P William Jacks & Co (M) Sdn Bhd [2007] 1 MLRH 622; [2007] 4 MLJ 534; [2007] 3 CLJ 153 where it was held that for so long as a bankrupt has not been charged in court for any of the offences referred to in s 33(4) of the Act and that no contempt proceedings have been taken against the bankrupt, to that extent the bankrupt is not required to pay at least 50% of the dividend as required under s 33(4) of the Act. S/N TZhjRGZZN0OQ/jgBMY7j4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 Reverting to the appeal at hand, to reiterate our views aforesaid, based on the DGI's report, it is clear that there is no suggestion that the appellant had committed any of the offences referred to in s 33(4) of the Act. The breach, if any, was pertaining to non-adherence to the timeline in filing the statement of affairs pursuant to s 16 of the Act…Be that as it may, as we have alluded to earlier, the particular breach committed by the appellant was not serious enough for the DGI to cite him for contempt of court. As the appellant had not been cited for contempt of court by the DGI, he had not committed any offence, as specified in s 33(4) of the Act. Thus, our inevitable conclusion on this issue is that the appellant's discharge application falls squarely within the ambit of s 33(3) of the Act.” 13. Mahkamah juga merujuk kepada kes Mahkamah Rayuan Quek Siew Eng v Malayan Banking Berhad [2023] 1 MLJ 99; [2023] 1 CLJ 884; [2023] 2 MLRA 209; [2023] 1 AMR 413 di mana Mahkamah memutuskan bahawa:- “[27] Having perused the Act and the facts and circumstances of this case, we are of the considered opinion that the learned judge's presumption that the appellant/judgment debtor had committed an offence is also erroneous as the appellant/judgment debtor was not never charged in court for the offence of not disclosing his co-ownership of the said land and convictedof the same. [28] We are inclined to hold that the phrase "that the bankrupt has committed any offence under this Act or under any written law repealed by this Act or under ss. 421, 422, 423 or 424 of the Penal Code (Act 574) " as contained in s. 33(4) of the Act meant that the bankrupt must have been charged in court of law by the DGI for that offence and was convicted accordingly… [33] Thus, in the light of the above, we are of the considered view that the learned judge's finding that the appellant/judgment debtor had committed an offence under s. 16 of the Act is erroneous. The learned judge cannot summarily and arbitrarily convict the appellant/judgment debtor, without the right to be heard. The appellant/judgment debtor may have an "reasonable excuse" or defence and he should be allowed to advance sucha defence. S/N TZhjRGZZN0OQ/jgBMY7j4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 [35] In the present case, the appellant/judgment debtor was never tried or charged for any bankruptcy offence and this was acknowledged by the DGI in para. 39 of the DGI's statutory report which states that the appellant did not commit any offence under ss. 421, 422, 423 and 424 of the Penal Code… [39] Since the appellant/judgment debtor has not committed any bankruptcy offence, the learned judge's decision to consider the appellant/judgment debtor's application under s. 33(4) of the Act for an order of discharge, is also without basis and erroneous. Thus, the appellant/judgment debtor's application for discharge should fall under s. 33(3) of the Act.” 14. Mahkamah dalam kes ini merujuk kepada perenggan 22 Laporan KPI yang mengesahkan bahawa JD tidak melakukan sebarang kesalahan di bawah seksyen 421, 422, 423 dan 424 Kanun Keseksaan. Maka, permohonan JD perlu dipertimbangkan Mahkamah menurut seksyen 33(3) Akta Tersebut dan sebarang kriteria pelepasan menurut seksyen 33(4) Akta Tersebut termasuk keperluan untuk JD memenuhi pembayaran sekurang-kurangnya 50% dari jumlah keberhutangan adalah tidak terpakai dalam kes ini. 15. Maka, Mahkamah perlu menilai fakta kes secara menyeluruh dan membuat kesimpulan sama ada wajar untuk melepaskan JD dari kebankrapan menurut seksyen 33(3) Akta Tersebut. Dalam menjelaskan perkara ini, Mahkamah dalam kes Development & Commercial Bank Bhd & Ors v Loke Theen Fatt [2010] 5 CLJ 583; [2009] 4 MLRH 118; [2011] 1 BLR 696 memutuskan bahawa:- S/N TZhjRGZZN0OQ/jgBMY7j4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 “[6] This section provides the court some guidelines as to how to exercise its discretion whether or not to grant an order of discharge. These guidelines require the court to look at the totality of the evidence or circumstance of the bankrupt and then ask itself the question whether it is fair or just to grant a discharge…” 16. Manakala, dalam kes Dato’ Lim Huah Leong (supra) pula, Mahkamah Rayuan memutuskan bahawa:- “Since the application for discharge by the appellant falls squarely within s 33(3) of the Act under which when a bankrupt applies to court for a discharge form bankruptcy, the court should take into account and consider the following facts: The report of the DGI as to the bankrupt's conduct and affairs including the bankrupts conduct at the time of the bankruptcy proceedings; and The case of the bankrupt's insolvency, the bankrupt's conduct relevant to his bankruptcy, the conduct of the bankrupt subsequent to his insolvency, interest of the public at large and commercial morality. The above should have been the only guiding considerations to the High Court Judge when hearing an application under s 33(3) of the Act which with respect, we find that the learned High Court Judge failed to do but instead erroneously imported the additional requirements under s 33(4) of the Act…” 17. Dalam hujahan JC, JC berhujah bahawa Laporan KPI wajib dipertimbangkan oleh Mahkamah sebelum membuat sebarang keputusan dalam mempertimbangkan permohonan JD untuk pelepasan. JC berhujah bahawa Laporan KPI adalah keterangan prima facie untuk menunjukkan kelakuan seorang JD dan keperluan untuk mengambil kira laporan tersebut adalah mandatori kecuali terdapat apa-apa kesilapan atau ketinggalan dalam laporan tersebut. S/N TZhjRGZZN0OQ/jgBMY7j4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 18. Mahkamah bersetuju dengan hujahan JC bahawa Laporan KPI memainkan peranan yang penting dalam memutuskan sesuatu permohonan di bawah seksyen 33 Akta Tersebut. Dalam hal ini, Mahkamah merujuk kepada kes Mahkamah Rayuan Lim Hun Swee v Malaysia British Assurance Bhd & Ors and Other Appeals [2011] 2 MLJ 218; [2010] 8 CLJ 680; [2010] 2 MLRA 392; [2011] 1 AMCR 157 di mana Mahkamah memutuskan bahawa:- “[12] In dealing with the application for discharge the court shall take into consideration a report of the DGI as to the bankrupt's conduct and affair, including a report as to the bankrupt's conduct during the proceedings under his bankruptcy. This is a mandatory requirement. Thus, in an application of this nature, a report of the DGI is very vital, in fact the most important consideration… [42] In an application for a discharge, each case has to depend upon its own individual circumstances (see: Re Matheson [1862] 31 LJ Bcy 23). The DGI's report is very essential to assist the court in its consideration and determination. Without a proper and complete report on all the relevant issues the court will not be able to exercise its judicial discretion. Thus, in preparing the report, the DGI must appreciate the importance of his investigations and report, failing which the report would be unreliable and the application by the bankrupt for a discharge would ultimately be refused…” 19. Walaupun kandungan dalam Laporan KPI adalah keterangan prima facie menurut peruntukan seksyen 33(8) Akta Tersebut, namun sekiranya Mahkamah mendapati laporan yang disediakan adalah tidak lengkap dan mengelirukan, maka Mahkamah tidak berkewajipan menerima laporan tersebut. Dalam menjelaskan perkara ini, Mahkamah Rayuan dalam kes Lim Hun Swee (supra) memutuskan bahawa:- S/N TZhjRGZZN0OQ/jgBMY7j4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 “[30] The court is aware that on the hearing of an application for an order of discharge, the court shall take into consideration a report by the DGI. This is a mandatory requirement. However, it does not mean that the court is bound to accept the statements therein contained. No doubt sub-s. (8) of s. 33 provides that for the purpose of an application for a discharge the DGI's report shall be prima facie evidence of the statements contained therein; but the court is duty bound to scrutinise the truth and reliability of the statements and in appropriate case, when the court is satisfied that the report is incomplete and misleading, the court is not bound to accept the statements contained in the report…” 20. Menjelaskan perkara yang sama, Mahkamah Rayuan dalam kes Public Bank Bhd v Choong Yew Wah [2014] 4 MLJ 559; [2014] 5 CLJ 695; [2014] 6 MLRA 706; [2014] AMEJ 0602 memutuskan bahawa:- “[14] In an application of this nature, the DGI's report plays an important part in that the court relies heavily on it to exercise its discretion. That said the court is also duty-bound to examine the DGI's report and determine whether the recommendation made is one made based on a thorough investigation of the affairs of the bankrupt and the interests of the creditors. In short, the Court's role cannot be a rubber stamp of the DGI's recommendation. If the court finds that DGI's report to be lacking in details or reasonable justifications, the court is duty-bound to ignore it and cannot allow the bankrupt to take advantage of such deficiencies… 21. Berdasarkan garis panduan dalam kes-kes yang dinyatakan di atas, Mahkamah akan menilai Laporan KPI dan afidavit JD dalam mempertimbangkan permohonan JD. Dalam hal ini, Mahkamah dapati Laporan KPI langsung tidak menyentuh sama ada JD masih bekerja pada masa kini dan memperolehi sebarang pendapatan hasil pekerjaan tersebut. Laporan tersebut juga tidak menjelaskan sama ada JD mempunyai apa-apa tanggungan. Kesemua faktor-faktor pendapatan JD, tanggungan JD dan aset yang dimiliki JD adalah faktor-faktor penting bagi Mahkamah menilai kemampuan sebenar JD untuk membayar hutang-hutang yang perlu diselesaikan JD. Dalam hal ini, Mahkamah merujuk kepada kes Re Kelvin Lee See Fooi, Ex P BSN Commercial Bank Malaysia Bhd [2006] 3 MLJ 683; [2006] 6 CLJ 65; [2005] 4 MLRH 201 di mana Mahkamah memutuskan bahawa:- S/N TZhjRGZZN0OQ/jgBMY7j4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 “[7] If the court minded to grant the application for discharge the court must surely know the financial situation of the JD in order to determine how the balance of the debt could be settled. Furthermore, the OA in his report failed to disclose the monthly salary of the JD and whether he has any other means of income besides what he had disclosed. The monthly expenses of the JD was also not indicated in the report. Furthermore, what other assets owned by and in possession of the JD, either in his name or in his nominee/s, failed to find its place in the report. I would thus hold that the OA has failed to produce a competent report receivable by this court under s 31(1) of the Act. I would thus hold that the OA's report is not sufficient to support the JD's application for discharge, as it fell far short of disclosing the actual financial situation of the JD and the report must be disregarded.” 22. Mahkamah juga merujuk kepada kes Re Tan Sie Kiong v Ex-P Delta Finance Company Bhd [2014] 8 CLJ 678; [2013] MLRHU 172 di mana Mahkamah memutuskan bahawa:- “[14] In addition, the judgment creditor submits that the judgment debtor should not have been discharged because the DGI had not carried out a proper and complete report. The DGI's report failed to disclose whether the judgment debtor has other means of income besides the monthly salary. The monthly expenses of the judgment debtor were also not indicated in the report. Furthermore, a statement of whatever assets owned by and in the possession of the judgment debtor either in his name or nominee's name, failed to find its place in the report. The judgment creditor thus submits that the DGI's report is insufficient to support the judgment debtor's application for discharge as it fell short of disclosing the actual financial situation of the judgment debtor. [15] With respect, I also agree with the contention of the judgment creditor on this issue…” S/N TZhjRGZZN0OQ/jgBMY7j4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 23. Mahkamah dapati keperluan untuk maklumat-maklumat tersebut didedahkan dalam Laporan KPI menjadi lebih mustahak kerana JD dalam afidavit sokongannya mendeposkan bahawa JD tidak bekerja dan tidak mempunyai pendapatan. JD juga mendeposkan bahawa perbelanjaan untuk menyara JD ditanggung sepenuhnya oleh anak-anak JD. Namun, perenggan 18 Laporan KPI menunjukkan bahawa JD telah diberi kemudahan ke Singapura di bawah seksyen 38(1)(c) Akta Tersebut sebanyak 4 kali dari tempoh 2017 hingga 2023 dan tujuan lawatan-lawatan tersebut adalah untuk bekerja. Kelulusan yang terbaru adalah pada 15.3.2022 bagi tempoh di antara 28.3.2022 hingga 27.3.2023. Malah, Laporan KPI membuat saranan untuk permohonan JD ditolak kerana “bankrap masih boleh membuat bayaran demi kepentingan pemiutang”. Pernyataan KPI menimbulkan keraguan sama ada JD masih bekerja dan memperolehi pendapatan, yang jelas bercanggah dengan deposisi JD. 24. Selain itu, Mahkamah juga dapati JD mendeposkan bahawa JD mempunyai penyakit darah tinggi dan masih menerima rawatan daripada Hospital Kerajaan. Pernyataan JD ini telah dicabar JC dalam perenggan 7 Afidavit Jawapan JC. Namun, JD telah gagal membalas afidavit tersebut dan gagal mengemukakan sebarang keterangan dokumentari bagi membuktikan pernyataan JD tersebut bagi pertimbangan Mahkamah. Berdasarkan undang-undang mantap, memandangkan pernyataan keadaan kesihatan JD telah dicabar JC, maka JD yang mempunyai beban membuktikan fakta tersebut di atas imbangan kebarangkalian. Dalam hal ini, Mahkamah merujuk kepada seksyen 103 Akta Keterangan 1950 yang memperuntukkan bahawa:- S/N TZhjRGZZN0OQ/jgBMY7j4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 “The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 25. Dalam mentaksirkan peruntukan tersebut, Mahkamah dalam kes Kumar Subramaniam @ Balasubramaniam v Punitha Thiagarajan [2023] MLJU 697; [2023] 1 LNS 628; [2023] MLRHU 538; [2023] AMEJ 0648 memutuskan bahawa:- “[31] At this juncture, it was important to remind parties that since it was the Respondent who made the claim, it was she who had to first prove the existence of the jewellery, and that such jewellery belonged to her. This is trite law as prescribed by section 103 of the Evidence Act 1950, which reads:… Not only does the Respondent have the legal burden to prove, she had to prove it on a balance of probabilities, which is the civil standard of proof. The Respondent insisted that the jewellery was hers but, except for some ambiguous photographs and pawn receipts which she could not account for, she was unable to convince this Court of ownership of such jewellery.” 26. Maka, dalam hal ini, pernyataan JD kekal tidak terbukti di hadapan Mahkamah. Seterusnya, Mahkamah merujuk kepada perenggan 6 Laporan KPI yang menyatakan bahawa KPI telah mengambil tindakan mengeluarkan surat awalan bertarikh 16.11.2014 kepada semua jabatan dan agensi kerajaan dan telah membuat pengiklanan untuk mengesan bankrap dan harta yang mempunyai kaitan dengan bankrap. Namun, tiada sebarang keterangan lanjut dalam laporan tersebut berkenaan sebarang maklum balas yang diterima oleh KPI berkenaan surat S/N TZhjRGZZN0OQ/jgBMY7j4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 tersebut, terutama berkenaan aset-aset dalam milikan JD atau ada kaitan dengan JD. Mahkamah dapati pernyataan “Aset: Tiada” dalam perenggan 12 Laporan KPI adalah pernyataan yang amat ringkas dan samar-samar (vague) dan tidak memberi gambaran penuh kepada Mahkamah. Dalam hal ini, Mahkamah merujuk kepada kes Lim Tee Keong v HLG Securities Sdn Bhd [2016] 3 MLJ 201; [2016] 4 CLJ 840; [2017] 3 MLRA 127; [2016] AMEJ 0894 di mana Mahkamah Rayuan memutuskan bahawa:- “[16] We agree with learned counsel for the supporting creditor AmBank (M) Bhd that the DGI could have and in fact should have undertaken a more thorough investigation into the assets of the bankrupt; especially assets which the bankrupt owned in his name say within five years before the date of RO was pronounced. This would enable the DGI to make more realistic assessment of the bankrupt's financial situation… In this respect we agree with learned counsel when he submitted that the DGI report 'should have gone further by highlighting all properties which had been previously owned by the bankrupt and the current owners of the property now (if any). The report should also highlight whether the current owners are in a close relationship with the bankrupt and whether there are evidences showing that the current owners are holding the properties as nominees for the bankrupt?' The DGI had failed to address all these issues in the report.” 27. Seterusnya, Mahkamah merujuk kepada perenggan 13 Laporan KPI yang menyatakan bahawa “Mesyuarat Pertama Pemiutang tidak direkodkan dan dengan demikian, Mesyuarat Pertama Pemiutang dalam tindakan”. Dalam hal ini, Mahkamah merujuk kepada seksyen 15(2) Akta Tersebut yang perlu dibaca bersama Jadual A kepada Akta Tersebut yang memperuntukkan prosedur perjalanan Mesyuarat Pemiutang. Menurut perenggan 1 kepada Jadual A, Mesyuarat Pemiutang Pertama S/N TZhjRGZZN0OQ/jgBMY7j4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 perlu dijalankan dalam tempoh tidak melebihi tiga bulan dari tarikh perintah kebankrapan dalam keadaan perintah kebankrapan yang diperolehi akibat Petisyen dari Pemiutang. Malah, menurut Kaedah 208(4) Kaedah-kaedah Insolvensi 2017 (selepas ini dirujuk sebagai Kaedah Tersebut), sekiranya Mesyuarat Pemiutang tidak dapat diadakan dalam tempoh masa yang diperuntukkan dalam Jadual A, KPI perlu memfailkan permohonan di Mahkamah untuk mendapatkan perintah perlanjutan masa. 28. Dalam hal ini, Laporan KPI adalah senyap berkenaan alasan kelewatan memanggil Mesyuarat Pemiutang Pertama dan sama ada sebarang tindakan susulan diambil untuk mendapatkan perintah lanjutan masa dari Mahkamah. Penjelasan KPI adalah penting untuk Mahkamah menilai sama ada kes kebankrapan JD telah ditadbir dengan sewajarnya memandangkan 9 tahun telah berlalu dari tarikh perintah Penerimaan dan Perintah Penghukuman diperintahkan terhadap JD namun isu Mesyuarat Pemiutang Pertama yang perlu dilaksanakan dalam tempoh tiga bulan dari Perintah Penerimaan dan Perintah Penghukuman masih belum dilaksanakan. 29. Seterusnya, Mahkamah juga dapati Laporan KPI juga adalah senyap berkenaan kelewatan JD dalam memfailkan penyata hal ehwalnya. Walaupun KPI membutirkan bahawa JD telah memfailkan penyata hal ehwalnya pada 11.1.2015, KPI gagal mendedahkan kelewatan JD dalam memfailkan penyata tersebut yang perlu difailkan dalam tempoh 21 hari dari tarikh perintah (sek.16(2)(b) Akta Tersebut). Laporan KPI juga senyap sama ada sebarang permohonan untuk lanjutan masa ada S/N TZhjRGZZN0OQ/jgBMY7j4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 difailkan JD untuk kelulusan KPI. Mahkamah berpendapat bahawa fakta- fakta ini adalah penting untuk penilaian Mahkamah berkenaan kelakuan JD setelah perintah kebankrapan direkodkan terhadap JD, yang merupakan faktor penting sebagaimana dinyatakan dalam kes Dato’ Lim Huah Leong (supra). 30. Berdasarkan perbincangan-perbincangan di atas, Mahkamah mendapati Laporan KPI langsung tidak memuaskan dan tidak dapat membantu Mahkamah dalam membuat keputusan berkenaan permohonan JD. Sebagaimana undang-undang mantap, JD tidak seharusnya dibenarkan untuk mengambil kesempatan atas kekurangan laporan tersebut. Dalam hal ini, Mahkamah Rayuan dalam kes Lim Hun Swee (supra) memutuskan bahawa:- “[16] The bankrupt in an application for a discharge cannot be allowed to obtain undue advantage of the weaknesses in the DG1's incomplete report. To borrow the words of Ian Chin J in the case of Re Lau Kah Lay & Tang Kuong Tiew; ex p Cold Storage (Malaysia) Bhd [2001] 3 CLJ 960, "the OA carries the onerous task of ensuring that a bankrupt has no hidden assets stashed away, whether in his name or in the name of his wife or children, as otherwise people will be imbued with the message that money borrowed could be stashed away and need not be repaid and such horde can be enjoyed even when one is a bankrupt. If the office of the OA does not show itself equal to the task of preventing such rip-off of the creditor then cases of borrowers not repaying and not minding to be made bankrupt would be the rule rather than the exception. Then, business morality would decline" . 31. Malah, Mahkamah dalam kes tersebut memutuskan bahawa apabila Laporan KPI adalah tidak lengkap, Mahkamah seharusnya menolak permohonan JD untuk pelepasan. Dalam menjelaskan perkara tersebut, Mahkamah memutuskan bahawa:- S/N TZhjRGZZN0OQ/jgBMY7j4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 “[46] Based on the above considerations, this court finds that it is unsafe to adopt and rely on the reports prepared by the DGI especially when there seems to be no proper and complete investigation as to the assets, income and expenses of the bankrupt. The reports contain contradictions, brief in nature and thus unreliable. To allow an order for a discharge of the bankrupt in the present circumstances would make a mockery of the provisions of the bankruptcy law available to safeguard the interest of creditors. It will not only lead to a decline in business morality but will also result in great injustice to legitimate creditors.” 32. Mahkamah dalam hal ini tidak terlepas pandang dengan hujahan JD yang memohon Mahkamah mempertimbangkan usia JD yang mencecah 64 tahun dan tempoh JD berada dalam kebankrapan selama lebih kurang 9 tahun. Mahkamah tidak menafikan bahawa faktor-faktor tersebut adalah faktor relevan dalam pertimbangan permohonan pelepasan oleh JD. Dalam hal ini, Mahkamah merujuk kepada kes Re Rajangam Marimuthu Mudalliar; Ex P Parkash Singh Wasawa Singh [2010] 3 CLJ 858; [2009] 2 MLRH 200 di mana Mahkamah memutuskan bahawa:- “By now the bankrupt would have been about 65 years old. Admittedly, at that age he is more a liability than an asset now…Equally, by now his bankruptcy would have lasted for more than 22 years. In my view on the uncontroverted facts, it would serve no purpose whatsoever to prolong his bankruptcy any further. He could no longer contribute effectively to the estate even if the KP could now catch up with him based on the information given by the applicant. The Act was enacted not with the object of punishing him for his failure to comply with the terms of the judgment sum nor was Jabatan Insolvensi created to act as the applicant's debt collector. In all the circumstances of the case I am in full agreement with the views expressed by his Lordship in Re Ang Ah Kang [1994] 2 CLJ 738 at p. 740: S/N TZhjRGZZN0OQ/jgBMY7j4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 Pada pendapat saya adalah bertentangan dengan kepentingan awam sekiranya seseorang itu terus kekal sebagai seorang bankrap sedangkan keadaan itu tidak memberi guna kepada sesiapa.” 33. Mahkamah juga merujuk kepada kes Re Mohana Sundari (supra) di mana Mahkamah memutuskan bahawa:- “The judgment debtor has been a bankrupt for almost 14 years and that 14 years is a long period of penance by any measure. The judgment debtor is now currently 45 years of age and humbly desires to spend the remainder of her mortal life free from the shackles and stigma of bankruptcy that has plagued her for so many years…” 34. Namun, Mahkamah berpendapat bahawa faktor-faktor tersebut tidak seharusnya dilihat secara isolasi dan perlu diimbangi dengan faktor-faktor lain sebagaimana dibincangkan di atas. Dalam hal ini, Mahkamah merujuk kepada kes Dato’ Lim Huah Leong v Engtex Marketing Sdn Bhd [2015] 9 MLJ 639; [2014] 1 LNS 1401; [2014] MLRHU 948 di mana Mahkamah memutuskan bahawa:- “It is only in deserving cases that a Bankrupt may be discharged from his bankruptcy, but not at the expense of commercial morality and public perception on bankruptcy law in the country. In allowing a discharge, the Court must be very cautious in balancing between the interest of the Bankrupt as an individual and the interest of the public and commercial reality at large…” S/N TZhjRGZZN0OQ/jgBMY7j4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 35. Di dalam kes ini, disamping kekurangan Laporan KPI, Mahkamah juga mempunyai keraguan sama ada KPI telah mentadbir estet JD dengan sewajarnya dengan mengambil tindakan administratif yang dikehendaki di bawah Akta Tersebut memandangkan KPI masih belum menjalankan Mesyuarat Pemiutang yang merupakan tindakan terawal dalam pentadbiran estet JD. Dalam hal ini, Mahkamah merujuk kepada kes Re Benny Ong Swee Siang; Ex-P United Overseas Bank (Malaysia) Bhd [2016] 8 MLJ 805; [2016] 3 CLJ 1001; [2015] MLRHU 1107 di mana Mahkamah memutuskan bahawa:- “[20] I am aware that the JD who is now 61 years of age has been a bankrupt for the past 17 years… In the circumstances, this is the situation of an unadministered estate in bankruptcy by reason that the procedures such as meeting of creditors, public examination of debtor and other administrative tasks as laid down in ss. 15 to 17 and 40 to 69 of the Bankruptcy Act 1967 have not yet been undertaken to date. This can easily be contrasted with the s. 33A case of Re Endon Tamseran; Ex p Parkash Singh Wasawa Singh (supra ) relied by the DGI where all the assets of the bankrupt who was then 65 years old had been realised and there was no longer any more contribution pursuant to the administration of the estate.” Kesimpulan: 36. Berdasarkan alasan-alasan yang dinyatakan di atas, Mahkamah berpendapat bahawa memandangkan Laporan KPI langsung tidak memuaskan dan tidak dapat membantu Mahkamah dalam membuat keputusan berkenaan permohonan JD, dan Mahkamah mempunyai keraguan sama ada KPI telah mengambil tindakan-tindakan administratif sebagaimana dikehendaki dalam Akta Tersebut, maka Mahkamah menolak permohonan pelepasan oleh JD dalam lampiran 1. Mahkamah menggunakan budi bicara Mahkamah dalam memerintahkan tiada perintah terhadap kos. S/N TZhjRGZZN0OQ/jgBMY7j4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 Bertarikh: 2 Ogos 2023 Disediakan oleh, …………………………………. ARUN A/L NOVAL DASS Timbalan Pendaftar Mahkamah Tinggi Malaya Johor Bahru Pihak-pihak: 1. Ketua Pengarah Insolvensi Jabatan Insolvensi Malaysia Cawangan Johor Bahru Tingkat 12, Menara Tabung Haji, Jalan Ayer Molek, 80720 Johor Bahru, Johor … Puan Juanita Binti Mohd Said/ Puan Dayangku Nurwafa Sakina Pg Petra/ Encik Abdul Muqsit Bin Sani 2. Tetuan Haikal & Co Peguambela & Peguamcara Penghutang Penghakiman No.60, Jalan Laksamana 2, Taman Ungku Aminah, 81300 Skudai, Johor … Encik Ibrahim Haikal Bin Razak 3. Tetuan Sarmila Theviga & Co Peguambela & Peguamcara Peguamcara bagi Pemiutang Penghakiman B-5-8, Sunway Business Park, Pusat Bandar Seberang Jaya, 13700 Prai, Penang (Ruj:SV/LIT/SMSB/LKB/7/2012(A)) …Ms Sarmila Vani A/P Arumugam S/N TZhjRGZZN0OQ/jgBMY7j4w **Note : Serial number will be used to verify the originality of this document via eFILING portal Kes-kes yang dirujuk: 1. Re Mohana Sundari M Subramaniam Ex P United Prime Corporation Bhd [2004] 5 MLJ 227; [2004] 1 CLJ 624; [2003] 3 MLRH 719; [2004] 2 AMR 141 2. Dato’ Lim Huah Leong v Engtex Marketing Sdn Bhd [2016] 5 MLRA 457 3. Quek Siew Eng v Malayan Banking Berhad [2023] 1 MLJ 99; [2023] 1 CLJ 884; [2023] 2 MLRA 209; [2023] 1 AMR 413 4. Development & Commercial Bank Bhd & Ors v Loke Theen Fatt [2010] 5 CLJ 583; [2009] 4 MLRH 118; [2011] 1 BLR 696 5. Lim Hun Swee v Malaysia British Assurance Bhd & Ors and Other Appeals [2011] 2 MLJ 218; [2010] 8 CLJ 680; [2010] 2 MLRA 392; [2011] 1 AMCR 157 6. Public Bank Bhd v Choong Yew Wah [2014] 4 MLJ 559; [2014] 5 CLJ 695; [2014] 6 MLRA 706; [2014] AMEJ 0602 7. Re Kelvin Lee See Fooi, Ex P BSN Commercial Bank Malaysia Bhd [2006] 3 MLJ 683; [2006] 6 CLJ 65; [2005] 4 MLRH 201 8. Re Tan Sie Kiong v Ex-P Delta Finance Company Bhd [2014] 8 CLJ 678; [2013] MLRHU 172 9. Kumar Subramaniam @ Balasubramaniam v Punitha Thiagarajan [2023] MLJU 697; [2023] 1 LNS 628; [2023] MLRHU 538; [2023] AMEJ 0648 10. Lim Tee Keong v HLG Securities Sdn Bhd [2016] 3 MLJ 201; [2016] 4 CLJ 840; [2017] 3 MLRA 127; [2016] AMEJ 0894 11. Re Rajangam Marimuthu Mudalliar; Ex P Parkash Singh Wasawa Singh [2010] 3 CLJ 858; [2009] 2 MLRH 200 12. Dato’ Lim Huah Leong v Engtex Marketing Sdn Bhd [2015] 9 MLJ 639; [2014] 1 LNS 1401; [2014] MLRHU 948 13. Re Benny Ong Swee Siang; Ex-P United Overseas Bank (Malaysia) Bhd [2016] 8 MLJ 805; [2016] 3 CLJ 1001; [2015] MLRHU 1107 22 S/N TZhjRGZZN0OQ/jgBMY7j4w **Note : Serial number will be used to verify the originality of this document via eFILING portal DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DALAM PASCA KEBANKRAPAN NO.JA-29PB-19-01/2023 EX-PARTE : SINGER (MALAYSIA) SDN BHD ---------------------------------------------------------------------------------------------------------- ALASAN PENGHAKIMAN Pengenalan Analisis dan keputusan Mahkamah Kesimpulan: Bertarikh: 2 Ogos 2023

Tika 2.6.0

JA-29NCC-39-01/2023

PEMIUTANG PENGHAKIMANMajlis Amanah Rakyat (MARA)PENGHUTANG PENGHAKIMANZURAIDAH BINTI ABDULLAH

Sama ada permohonan Penghutang Penghakiman untuk membatalkan Notis Kebankrapan wajar dibenarkan- sama ada tindakan Pemiutang Penghakiman dalam memulakan tindakan kebankrapan terhadap Penghutang Penghakiman tanpa mendapat kebenaran Mahkamah terlebih dahulu adalah bertentangan dengan Seksyen 5(3)(b) Akta Insolvensi 1967

22/11/2023

Tuan Arun A/L Noval Dass

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=e6b3345e-24e6-40fc-9af6-a5667c4437a3&Inline=true

1 DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA DALAM PERKARA KEBANKRAPAN NO JA-29NCC-39-01/2023 PERKARA : ZURAIDAH BINTI ABDULLAH … PENGHUTANG PENGHAKIMAN EX-PARTE : MAJLIS AMANAH RAKYAT … PEMIUTANG PENGHAKIMAN ---------------------------------------------------------------------------------------------------- ALASAN PENGHAKIMAN ---------------------------------------------------------------------------------------------------- 22/11/2023 13:44:47 JA-29NCC-39-01/2023 Kand. 37 S/N XjSz5uYk/ECa9qVmfEQ3ow **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Pengenalan 1. Pada 9.10.2019, Pemiutang Penghakiman (selepas ini dirujuk sebagai “JC”) telah memasukkan Penghakiman Ingkar Kehadiran terhadap C.M.O.S Equipment Sdn Bhd (selepas ini dirujuk sebagai “Peminjam Prinsipal”) dan terhadap penjamin-penjamin kepada Peminjam Prinsipal tersebut. Penghakiman Ingkar tersebut dipinda pada 10.11.2021. 2. JC kemudiannya telah memulakan prosiding penggulungan syarikat terhadap Peminjam Prinsipal dan Perintah Penggulungan Syarikat telah diperolehi pada 11.4.2022. Berikutan itu, JC telah memfailkan Bukti Hutang di Jabatan Insolvensi Johor Bahru pada 22.8.2022. 3. JC seterusnya memfailkan Notis Kebankrapan terhadap Penghutang Penghakiman (selepas ini dirujuk sebagai “JD”) pada 18.1.2023. Pada 2.3.2023, JC telah memfailkan Saman Dalam Kamar (Lampiran 4) bagi mendapatkan kebenaran Mahkamah menurut seksyen 5(3)(b) Akta Insolvensi 1967 (selepas ini dirujuk sebagai “Akta Tersebut”) untuk meneruskan tindakan kebankrapan terhadap JD yang merupakan seorang penjamin bukan sosial (selepas ini dirujuk sebagai “Perintah Kebenaran tersebut”). Mahkamah telah memberikan perintah kebenaran tersebut pada 29.3.2023. 4. JC seterusnya menyerahkan Notis Kebankrapan yang dilanjutkan tempoh keesahannya sehingga 17.6.2023 kepada JD secara kediri pada 27.4.2023. S/N XjSz5uYk/ECa9qVmfEQ3ow **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 5. JD seterusnya memfailkan Saman Dalam Kamar dalam Lampiran 15 pada 22.5.2023 bagi mengetepikan Perintah Kebenaran tersebut yang menjadi subjek pertikaian di hadapan Mahkamah. Analisis dan keputusan Mahkamah (Lampiran 15) Isu Pertama: JC gagal memperolehi kebenaran Mahkamah sebelum memulakan tindakan kebankrapan terhadap JD 6. JD berhujah bahawa JC telah gagal memenuhi keperluan seksyen 5(3)(b) Akta Tersebut yang merupakan pra-syarat yang hendaklah dipatuhi terlebih dahulu sebelum pengeluaran Notis Kebankrapan terhadap JD yang merupakan penjamin bukan sosial. 7. Dalam hal ini, Mahkamah merujuk kepada seksyen 5(3) Akta Tersebut yang memperuntukkan bahawa:- “(3) A petitioning creditor shall not be entitled to commence any bankruptcy action- (a) against a social guarantor; and (b) against a guarantor other than a social guarantor unless the petitioning creditor has obtained leave from the court.” 8. JD berhujah bahawa kegagalan JC memenuhi pra-syarat yang ditetapkan menurut undang-undang adalah suatu perkara yang fatal dan dengan demikian, Notis Kebankrapan hendaklah dibatalkan oleh Mahkamah ini dengan serta merta. S/N XjSz5uYk/ECa9qVmfEQ3ow **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 9. JC dalam hujahannya merujuk kepada kes Hong Leong Bank Berhad v Ong Moon Huat & Another Appeal [2018] MLJU 1576; [2018] 1 LNS 1612; [2018] MLRAU 504 yang antara lain memutuskan bahawa JC berhak untuk memfailkan permohonan kebenaran memulakan tindakan kebankrapan tersebut sehingga sebelum Petisyen Pemiutang difailkan. Dalam menjelaskan prinsip tersebut, Mahkamah Rayuan memutuskan bahawa:- “[15] For these reasons we are of the view that on a proper reading of Khairulnizam which is wholly relevant coupled with section 5(3)(b) as well as Rule 97 it is open to a judgment creditor to file an application for leave to proceed against a guarantor either upon the issuance of the bankruptcy notice, or even prior to that, up to and immediately prior to the filing of a creditor's petition. This gives leeway to the judgment creditor to obtain such leave as it deems fit in the circumstances of a particular case. This will in no way prejudice the judgment debtor/guarantor who is protected by the legislation which requires such leave to be obtained as a prerequisite to the grant of receiving and adjudication orders.” 10. Dalam hal ini, Mahkamah bersetuju dengan hujahan JD bahawa tujuan dan niat Parlimen dalam menggubal seksyen 5(3)(b) Akta Tersebut perlu diberi penekanan oleh Mahkamah ini dalam memberi tafsiran yang sewajarnya kepada peruntukan tersebut. Dalam mengkaji tujuan atau objektif peruntukan tersebut, seksyen 17A Akta Interpretasi 1948 & 1967 adalah relevan di mana peruntukan tersebut memperuntukkan bahawa:- “In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.” S/N XjSz5uYk/ECa9qVmfEQ3ow **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 11. Rujukan juga dibuat kepada kes Mahkamah Persekutuan, Ismail Nasaruddin Abdul Wahab v Malaysian Airline System Bhd [2022] 6 MLJ 414; [2022] 9 CLJ 801; [2022] 6 MLRA 696; [2022] 7 AMR 641 di mana Mahkamah memutuskan bahawa:- “[50] It is trite that the interpretation of an Act should be undertaken with the purpose and object of the Act in mind. In Bursa Malaysia Securities Bhd v. Mohd Afrizan Husain [2022] 4 CLJ 657, this court referred to s. 17A of the Interpretation Acts 1948 and 1967 and expressed the view that in the construction of statutes, any reading which is purely textual, as opposed to contextual, is to be rejected…” 12. Dalam menentukan tujuan atau objektif peruntukan seksyen 5(3) Akta Tersebut digubal, Mahkamah boleh merujuk kepada Hansard Parlimen. Perkara ini ada diputuskan dalam kes Pengusaha, Tempat Tahanan Perlindungan Kamunting, Taiping & Ors v Badrul Zaman Ps Md Zakariah [2018] 12 MLJ 49; [2018] 8 CLJ 273; [2018] 6 MLRA 177; [2018] 5 AMR 733 di mana Mahkamah Persekutuan memutuskan bahawa:- “The Federal Court in DYTM Tengku Idris Shah Ibni Sultan Salahuddin Abdul Aziz Shah v. Dikim Holdings Sdn Bhd & Anor [2002] 3 CLJ 69; [2002] 2 MLJ 11; and Chor Phaik Har v. Farlim Properties Sdn Bhd [1994] 4 CLJ 285; [1994] 3 MLJ 345 had adopted the purposive approach by making reference to the Parliamentary reports or Hansard as an aid to statutory interpretation in interpreting the provisions of Acts of Parliament. In that case, Haidar FCJ, in delivering the judgment of the court remarked: "It will give statutory force to the courts to look the policy speech of the Minister or the promoter of the Bill in Hansard for the purpose of an aid to the interpretation of statutes." S/N XjSz5uYk/ECa9qVmfEQ3ow **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 13. Berpandukan nas-nas di atas, Mahkamah merujuk kepada hansard Parlimen berkenaan pindaan kepada Akta Insolvensi 1967 pada 29.3.2017 di mana Menteri dalam membentangkan pindaan kepada Akta Insolvensi 1967 telah menyatakan seperti berikut:- “Kerajaan amat prihatin isu-isu kebankrapan terutama di mana mereka diisytiharkan bankrap disebabkan mereka menjadi penjamin kepada peminjam yang gagal menjelaskan pinjaman. Golongan ini tidak sepatutnya dipertanggungjawabkan sepenuhnya tanpa tindakan terhadap peminjam prinsipal terlebih dahulu untuk menjelaskan pinjaman yang diambil… …Kerajaan telah mempertimbangkan lapan perubahan dasar untuk meminda Akta Kebankrapan 1967 seperti berikut: (i) tindakan kebankrapan tidak boleh diambil terhadap penjamin sosial. Walau bagaimanapun penjamin bukan sosial boleh dibankrapkan setelah mahkamah berpuas hati dengan tindakan-tindakan yang dibuat oleh pihak pemiutang;…” 14. Mahkamah juga merujuk kepada huraian kepada Rang Undang-undang untuk meminda Akta Kebankrapan 1967 (D.R. 21/2016) yang memperuntukkan seperti berikut:- “11. Fasal 12 bertujuan untuk meminda seksyen 5 Akta 360 untuk menaikkan nilai minimum hutang bagi pemfailan petisyen kebankrapan daripada tiga puluh ribu ringgit kepada lima puluh ribu ringgit. Fasal ini selanjutnya memperuntukkan bahawa pemiutang tidak boleh memulakan prosiding kebankrapan terhadap penjamin sosial. Berhubung dengan penjamin selain penjamin sosial, pemiutang tidak boleh MEMULAKAN prosiding kebankrapan melainkan jika pemiutang itu telah mendapat keizinan mahkamah.” S/N XjSz5uYk/ECa9qVmfEQ3ow **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 15. Berdasarkan nas-nas di atas, seseorang JC perlu mendapatkan kebenaran Mahkamah terlebih dahulu untuk memulakan tindakan kebankrapan terhadap mana-mana JD yang merupakan penjamin (bukan sosial). Dalam hal ini, adalah penting untuk menentukan tafsiran permulaan (commencement) tindakan kebankrapan. Dalam kes Ong Moon Huat (supra), Mahkamah Rayuan telah merujuk kepada kes Mahkamah Persekutuan Hong Leong Bank Bhd v Khairulnizam Jamaludin [2016] 4 MLJ 302; [2016] 7 CLJ 335; [2016] 4 MLRA 603; [2016] 4 AMR 246 dalam memutuskan bahawa seseorang JC boleh memfailkan permohonan kebenaran sehingga sebelum Petisyen Pemiutang difailkan. Sekiranya diteliti penghakiman Mahkamah Persekutuan, Mahkamah Persekutuan memutuskan bahawa:- “[32] On a proper reading of ss. 5 and 6 of the Act we are of the view that a creditor has to satisfy the court at the hearing of the creditor's petition that the creditor has exhausted all avenues to recover debts owed to him by the debtor. This can be done by way of an affidavit pursuant to s. 6(1) of the Act. Furthermore at this stage the court is required to make a judicial decision on the creditor's petition. On the other hand, when the court issued a bankruptcy notice pursuant to r. 91 of the Rules 1969 the procedure is more administrative in nature.” 16. Maka, Mahkamah dalam kes tersebut berpandangan bahawa pemfailan Notis Kebankrapan adalah tindakan administratif semata- mata. Namun, Mahkamah Rayuan dalam kes Liew Hon Kong v Bank Pertanian Malaysia Bhd [2022] 1 MLJ 836; [2021] 9 CLJ 82; [2021] 6 MLRA 641; [2021] AMEJ 1158 telah mengkaji semula tafsiran pemfailan Notis Kebankrapan sebagai tindakan administratif semata-mata. Mahkamah Rayuan dalam kes tersebut memutuskan bahawa:- S/N XjSz5uYk/ECa9qVmfEQ3ow **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 “[60] As mentioned earlier, the JD contends that the BN is merely the product of an administrative act on the part of the court. The JD relied on the passage from the decision of the Federal Court in Hong Leong Bank Berhad v. Khairulnizam Jamaludin (supra) at [32] where it was stated that the issuance of the BN per r. 91 of the Bankruptcy Rules 1969 is more "administrative" in nature. The other point that was made is that bankruptcy proceedings involves two stages, that are, the BN stage and the CP stage. [61] Whilst we accept that bankruptcy proceedings is a two staged process, we do not accept the argument that the BN was issued "administratively" and therefore merely "kickstarts" the process… [68] Rather, as was rightly submitted by counsel for the JC, the moment an application is made for the issuance of the BN, the jurisdiction of the bankruptcy court is invoked and the jurisdiction continues until the very end, ie, beyond the AO and RO… [69] We agree with the submissions that were made by the JC's counsel, that an analogy may be made with the issuance of a writ. A writ is issued by the registry of the court and it is an administrative act. But even so, the fact that a writ has been issued is regarded as the commencement of legal proceedings. Why then should the issuance of the BN be any different? … [70] And like a writ, the BN has a lifespan. Like a writ, the BN must be served during the period of its validity. Like a writ, a BN may be extended. And upon service of a writ, the defendant must enter appearance or else judgment in default may be entered. Like a writ, upon service of the BN, if the amount stated in the BN is not paid within seven days, then an act of bankruptcy is deemed to have occurred and the JC will have a period of six months to file the CP. [71] Next, in so far as the two-staged process ie, BN followed by CP is concerned, this merely means that there are two steps to be taken. But they are nevertheless steps within a single legal proceeding, namely, as in this case, within BC4238… [83]… In our view, bankruptcy proceedings commenced upon the issuance of the BN, and such proceedings are to be treated as "pending" for purposes of s. 60 of the Bankruptcy (Amendment) Act 2017.” 17. Berdasarkan kes tersebut, tindakan kebankrapan bermula sebaik sahaja Notis Kebankrapan telah difailkan. Dalam hal ini, menurut kes Per: Lim Sue Beng v AmBank (M) Berhad & Ors [2022] MLJU 3147; [2022] 1 LNS 2822, berdasarkan tafisran Mahkamah Rayuan tersebut dalam kes Liew Hon Kong (supra), seseorang JC perlu S/N XjSz5uYk/ECa9qVmfEQ3ow **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 mendapatkan kebenaran Mahkamah terlebih dahulu sebelum memfailkan Notis Kebankrapan terhadap seseorang JD yang merupakan penjamin. Dalam menjelaskan perkara ini, Mahkamah memutuskan bahawa:- “[17] Based on Liew Hon Kong (supra) and a literal reading of section 5(3) of the Insolvency Act 1967 wherein: 17.1 the said express words "unless the petitioning creditor has obtained leave from the court" appears, I hold that the same is clear and unambiguous to mean that the JC has to apply for leave first from the Court before the said BN can be issued; and 17.2 the words "to commence any bankruptcy action" in the said section is to be treated as referring to the BN as the BN is the initiation of a bankruptcy action / proceedings as the Bankruptcy Court's jurisdiction is invoked [18] In this respect, I find that the Federal Court case of Hong Leong Bank Berhad v. Khairulnizam bin Jamaludin [2016] 7 CLJ 335; [2016] 4 MLJ 302 relied on by learned counsel for the Judgment Creditor (JC) is not applicable to the facts before me as that case was decided pre the Insolvency Act 1967. …[20] In the circumstances, the BN is in my decision pre maturely issued. I also hold that the prayer in paragraph (a) of Enclosure 12 filed by the JC ie, for leave to commence the bankruptcy proceedings against the JD, which is the subject of the appeal in Enclosure 46, is retrospective in nature as the said application was only made almost 7 months after the said BN was issued. This, in my view, is prejudicial to the JD and against the spirit of Section 5(3) of the Insolvency Act 1965 ie, the protection of guarantors and appears to be an afterthought. [21] It is trite that Bankruptcy Proceedings are not only damaging to the reputation and standing of the JD but that such Bankruptcy Proceedings are quasi criminal in nature and that as such struct adherence must be made to the provisions and requirements in the Insolvency Act 1967 and the Insolvency Rules 2017. [22] I therefore agree with learned counsel for the JD that the said defects aforementioned are, at this stage, incurable and will cause substantial injustice and prejudice to the JD.” S/N XjSz5uYk/ECa9qVmfEQ3ow **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 18. Dalam hal ini, Mahkamah merujuk kepada kes Dalip Bhagwan Singh v PP [1998] 1 MLJ 1; [1997] 4 CLJ 645; [1997] 1 MLRA 653; [1997] 4 AMR 4029 di mana Mahkamah Persekutuan antara lain memutuskan bahawa Mahkamah di bawah Mahkamah Rayuan boleh memilih di antara dua keputusan bercanggah di peringkat Mahkamah Rayuan tanpa mengambil kira tarikh keputusan yang bercanggah itu. Mahkamah dalam hal ini memilih untuk mengikuti keputusan Mahkamah Rayuan dalam kes Liew Hon Kong (supra) atas alasan- alasan yang dinyatakan dalam kes tersebut dalam memutuskan bahawa pemfailan Notis Kebankrapan adalah bukan tindakan administratif semata-mata dan merupakan permulaan sah (commencement) sesuatu tindakan kebankrapan. 19. Maka, berdasarkan kes Lim Sue Beng (supra), Mahkamah berpendapat bahawa pemfailan Notis Kebankrapan terhadap penjamin bukan sosial dalam kes ini tanpa mendapat kebenaran Mahkamah terlebih dahulu adalah fatal kepada pihak JC. Mahkamah berpendapat bahawa sebagaimana diputuskan dalam kes Lim Sue Beng (supra), sebarang kebenaran yang diberikan Mahkamah pada 29.3.2023 tidak boleh bertindak kebelakangan (retrospective) bagi mengesahkan pemfailan Notis Kebankrapan yang difailkan terdahulu pada 18.01.2023. 20. Maka, atas alasan ini sahaja, Mahkamah berpendapat bahawa permohonan JD untuk antara lain mengetepikan perintah bertarikh 29.3.2023 wajar dibenarkan. S/N XjSz5uYk/ECa9qVmfEQ3ow **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 21. Namun, bagi kesempurnaan, Mahkamah merujuk kepada isu-isu lain yang ditimbulkan JD dan Mahkamah tidak bersetuju dengan pendirian JD berkenaan isu-isu tersebut sebagaimana dibincangkan di bawah. Isu Kedua: JC gagal melengkapkan semua tindakan pelaksanaan dan penguatkuasaan sebagaimana dikehendaki di bawah seksyen 5(4) Akta Tersebut 22. JD berhujah bahawa JC telah gagal melengkapkan kesemua tindakan pelaksanaan dan penguatkuasaan lain terhadap JD selaku penjamin sebelum memulakan tindakan kebankrapan terhadap JD. JD berhujah bahawa perkataan “debtor” dalam seksyen 5(4) Akta Tersebut merangkumi dan meliputi penjamin dan berhujah lanjut bahawa Mahkamah Rayuan dalam kes Ong Moon Huat (supra) telah terkhilaf dalam memutuskan bahawa “debtor” dalam seksyen 5(4) Akta Tersebut hanya merujuk kepada peminjam prinsipal. Mahkamah dalam hal ini merujuk seksyen 5(4) Akta Tersebut yang memperuntukkan bahawa:- “(4) Before granting leave referred to in paragraph (3)(b), the court shall satisfy itself that the petitioning creditor has exhausted all modes of execution and enforcement to recover debts owed to him by the debtor.” 23. Mahkamah juga merujuk kepada keputusan Mahkamah Rayuan dalam kes Ong Moon Huat (supra) yang memutuskan bahawa perkataan “the debtor” dalam sub-seksyen (4) merujuk kepada peminjam prinsipal. Dalam menjelaskan perkara ini, Mahkamah memutuskan bahawa:- S/N XjSz5uYk/ECa9qVmfEQ3ow **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 ““[3] A purposive construction of the section as a whole discloses that the section seeks to introduce protection for the guarantor against whom bankruptcy proceedings are to be brought. The protection comes in the form of ensuring that enforcement has been exhausted in respect of the principal debtor prior to proceeding against the guarantor. It is to remedy the mischief of judgment creditors proceeding against the guarantors directly in bankruptcy rather than executing and enforcing against the principal debtor… [5] The only reasonable construction that can be accorded is that "debtor" in section 5(4) refers to the principal debtor or the borrower. The fact that the word "borrower" was not used does not preclude the construction we have adopted. On the contrary such a construction is fully in accord with the purposive approach to be adopted in construing the section as outlined above.” 24. Tafsiran sama dicapai dalam kes Rusli Ab Ghani; Ex-Parte: CIMB Bank Berhad [2018] 1 LNS 1528; [2018] MLRHU 1180 di mana Mahkamah memutuskan bahawa:- “[11] Subsections 5(3), (4), (5), (6) and (7) are new provisions which were inserted vide Act A1534 and came into force on 6.10.2017 and at the same time the Rules were introduced replacing the Bankruptcy Rules 1969. Prior to these amendments a petition creditor had to prove that he had exhausted all avenues to recover debts owed to him by the debtor before he could commence a bankruptcy petition against a social guarantor. However, with effect from 6.10.2017 a social guarantor is absolutely protected and cannot be made a bankrupt. That protection is now accorded to other guarantors who were not protected before the amendment… This simply means that a judgment creditor must ensure that all modes of execution and enforcement have been exhausted against the debtor who is the borrower before he can go against the guarantor. Once that is shown then leave will be granted by the court for the judgment creditor to commence bankruptcy petition against the guarantor.” S/N XjSz5uYk/ECa9qVmfEQ3ow **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 25. JD tidak dapat mengemukakan sebarang autoriti kepada Mahkamah dalam memohon Mahkamah untuk tidak mengikuti kes-kes di atas, terutama kes Ong Moon Huat (supra). Undang-undang adalah mantap bahawa Mahkamah bawahan tidak seharusnya menyimpang dari keputusan Mahkamah Atasan sewenang-wenangnya dan keputusan tersebut mengikat Mahkamah-mahkamah bawahan. Dalam hal ini, Mahkamah merujuk kepada kes Metramac Corp Sdn Bhd v Fawziah Holdings Sdn Bhd [2006] 4 MLJ 113; [2006] 3 CLJ 177; [2006] 1 MLRA 666; [2006] 3 AMR 725 di mana Mahkamah Persekutuan memutuskan bahawa:- “[21] Gopal Sri Ram JCA is therefore correct in saying that Lam Kong Co Ltd v. Thong Guan Co Pte Ltd [2000] 3 CLJ 769 and Capital Insurance Bhd v. Aishah bte Abdul Manap & Anor [2000] 4 CLJ 1 were wrongly decided. Unfortunately he is not the right authority permitted by law to express such an opinion. As both cases are judgments of the Federal Court he is bound to follow them whether he agrees with them or not. The stand taken by him is in blatant disregard of the doctrine of stare decisis particularly when the need to comply with this fundamental rule of the common law was brought to his attention by James Foong JCA in his separate judgment. In order to appreciate the importance of adhering to the doctrine of stare decisis useful references may be made to Cassell & Co Ltd v. Broome & Anor [1972] 1 All ER 801 where Lord Hailsham said at p 809: The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers. Where decisions manifestly conflict, the decision in Young v. Bristol Aeroplane Co Ltd [1944] 2 All ER 293 offers guidance to each tier in matters affecting its own decisions. It does not entitle it to question considered decisions in the upper tiers with the same S/N XjSz5uYk/ECa9qVmfEQ3ow **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 freedom. Even this House, since it has taken freedom to review its own decisions, will do so cautiously….” 26. Maka, keputusan-keputusan tersebut mengikat Mahkamah ini dan JC hanya perlu menunjukkan bahawa JC telah melengkapkan tindakan pelaksanaan terhadap Peminjam Prinsipal sebelum memulakan tindakan kebankrapan terhadap JD, yang merupakan seorang penjamin. Memandangkan Peminjam Prinsipal (syarikat) telah digulungkan dan JC telah memfailkan bukti hutang dengan Jabatan Insolvensi terhadap Peminjam Prinsipal, tiada lagi tindakan pelaksanaan lain yang boleh diambil JC terhadap peminjam Prinsipal dalam kes ini. Perkara ini ada diputuskan dalam kes Gan Khian Pin v Malayan Banking Berhad [2021] MLJU 3039; [2021] 1 LNS 2433; [2021] AMEJ 2100 di mana Mahkamah memutuskan bahawa:- “The principal debtor has been wound-up on 13.5.2020 and Proof of Debt has been filed by the JC against the principal debtor. There is no confirmation by the Liquidator that the assets or property of the principal debtor company, if any, is sufficient to satisfy all the claims lodged by its creditors. The effect of a winding up order was to deprive the company of the beneficial ownership of all its property. See Yamamori (Hong Kong) Ltd v. Borneo Hotel Sdn Bhd & Anor [1991] 4 CLJ Rep 235. Hence, there is no avenue left for the JC to recover the debt from the principal borrower by using other modes of execution and enforcement within the meaning of s. 5(4) & (6) of the IA 1967. From the Affidavit evidence, this Court is satisfied that the JC has exhausted all modes of execution and enforcement to recover the debt owed to them by the JD. See KKRMC Trading Sdn Bhd v. Tan Tiang Lai [2020] 1 LNS 852 (HC).” S/N XjSz5uYk/ECa9qVmfEQ3ow **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 27. Maka, berdasarkan alasan-alasan ini, hujahan JD berkenaan isu ini adalah tidak bermerit. Isu Ketiga: Pemiutang Penghakiman telah melaksanakan tindakan kebankrapan berdasarkan kepada penghakiman yang cacat, defektif dan tidak teratur Isu Kelima: Pemiutang Penghakiman telah melanggar seksyen 6 Akta Had Masa 1953 apabila menuntut di luar masa 28. JD berhujah bahawa Penghakiman Ingkar Terpinda bertarikh 9.10.23 telah diperolehi di luar batas masa yang dibenarkan di bawah seksyen 6 Akta Had Masa 1953. Maka, disebabkan penghakiman yang menjadi sandaran kepada tindakan kebankrapan adalah cacat dan defektif, maka JD berhujah bahawa Notis Kebankrapan tersebut wajar diketepikan. 29. JD juga berhujah bahawa adalah penting untuk JC membuktikan tarikh perlanggaran kontrak sebelum memulakan apa-apa tuntutan terhadap JD. Memandangkan tidak ada apa-apa tarikh perlanggaran yang dibuktikan, maka adalah wajar untuk membuat andaian asas bahawa memandangkan tarikh kontrak adalah 10.05.2006, maka tarikh akhir untuk JD menuntut dan memperolehi apa-apa hutang yang tertunggak adalah pada 9.5.2012. S/N XjSz5uYk/ECa9qVmfEQ3ow **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 30. Dalam hal ini, JC merujuk kepada seksyen 8.04 kepada Perjanjian Pembiyaan di bawah Qardhul Hassan (INTEP) yang memperuntukkan bahawa:- “Notwithstanding the provision of Section 10.01 hereof, the Financing Facilities shall also became due and immediately payable on demand being made by MARA”. 31. Berdasarkan klausa ini, JC berhujah bahawa JC telah menyerahkan Notis Tuntutan bertarikh 7.12.2019 dan telah memberikan tempoh masa munasabah kepada JD untuk membuat bayaran. Maka, JC berhujah bahawa had masa dalam kes ini hanya bermula daripada tarikh tamat tempoh pembayaran yang diberikan dalam Notis Tuntutan JC. Sebagai sokongan, JC merujuk kepada kes CIMB Bank Berhad v Mastura Musaed [2010] MLJU 538; [2010] 1 LNS 529; [2010] 6 MLRH 927 di mana Mahkamah memutuskan bahawa:- “9. In addition, the housing loan granted to the defendant in 1995 is for a repayment period of twenty five years. The housing loan terms and conditions inter alia provide that the repayment is upon demand. The last notice of demand by the plaintiff was dated 10.9.2007. Therefore the Court found that the limitation period only began to run from the expiry of the time specified for payments in the letter of recall dated 10.9.2007 The plaintiff's action, therefore was filed well within the limitation period allowed under section 6 of the Limitation Act. Federal Court's decision in Tan Kong Min v. Malaysian National Insurance Sdn Bhd [2005] 3 CLJ 825; [2006] 1 MLJ 601 followed.” 32. Dalam hal ini, sebagaimana dihujahkan oleh JC, Mahkamah berpendapat bahawa Mahkamah ini tidak seharusnya menyelidik keesahan Penghakiman yang diperolehi JC yang tidak pernah diketepikan mahupun digantung perlaksanaannya oleh JD. Undang- undang adalah mantap bahawa Mahkamah Kebankrapan tidak S/N XjSz5uYk/ECa9qVmfEQ3ow **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 seharusnya melihat di sebalik penghakiman tersebut (cannot go behind the judgment). Dalam hal ini, Mahkamah merujuk kepada kes Per: Chan Wai Fong v Ex-Parte: Everest Web Sdn Bhd [2022] MLJU 1253; [2022] 1 LNS 1277; [2022] AMEJ 0733 di mana Mahkamah memutuskan bahawa :- “[7] As the said Judgment has not been stayed or overturned, the Judgment remains valid and binding and the JD must obey the said Judgment. I refer to Re Tioh Ngee Heng [2000] 1 LNS 197 where Steve Shim J (as His Lordship then was) held: "It is trite law that an order, even if irregular, is valid and enforceable until set aside. This principle is particularly relevant in bankruptcy proceedings where the court generally will not look behind the judgments or order save in very limited circumstances of fraud or illegality, etc. In Isaacs v. Robertson [1985] AC 97, Lord Diplock speaking for the Privy Council approved the proposition advanced by Romer LJ in Hadkinson v. Hadkinson [1952] 2 All ER 567 who said at p. 569:- It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. Lord Cottenham, LC, said in Chuck v. Cremer [1846] 1 Coop temp Cott 338 at p 342, 47 ER 884 at p. 885): 'A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it. It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid-whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.' Such being the nature of this obligation, two consequences will, in general, follow from its breach. The first is that anyone who disobeys an order of the court is in contempt and may be punished by committal or attachment or otherwise. This principle has been followed by our Supreme Court in Sovereign General Insurance Sdn Bhd v. Koh Tian Bee [1988] 1 CLJ 277 (Rep); [1988] 1 CLJ 155; [1988] 1 MLJ 304." S/N XjSz5uYk/ECa9qVmfEQ3ow **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 [8] Following from the above, this Court cannot go behind the Judgment as stated by the Supreme Court in Sovereign General Insurance Sdn Bhd v. Koh Tian Bee [1988] 1 CLJ Rep 277; [1988] 1 MLJ 304 where it was held that "In the exercise of his jurisdiction in bankruptcy proceedings, the learned judge cannot go behind the judgment.” 33. Mahkamah juga merujuk kepada kes Re Yong Tet On, Paul, Ex Parte Chung Khiaw Bank Ltd [1996] 1 MLJ 721; [1996] 1 CLJ 836; [1995] 3 MLRH 830 di mana Mahkamah memutuskan bahawa :- "Obedience to Court Order It is established law that a person whom an order of Court has been issued is duty bound to obey that order until it is set aside. It is not open for him to decide for himself whether the order was wrongly issued and therefore does not require obedience. His duty is one of obedience until such time as the order may be set aside or varied".” 34. Lebih-lebih lagi, keperluan untuk JD mengetepikan penghakiman yang disandar JC menjadi lebih mustahak kerana pembelaan yang ingin diusulkan adalah kausa tindakan JC adalah dihalang oleh had masa. Menurut Aturan 18 Kaedah 8 Kaedah-kaedah Mahkamah 2012, mana- mana pihak yang ingin mengusulkan pembelaan had masa perlu memplidkan secara spesifik pembelaan tersebut. Kaedah tersebut berbunyi:- “(1) A party shall in any pleading subsequent to a statement of claim plead specifically any matter, for example, … any relevant statute of limitation, fraud or any fact showing illegality- (a) which he alleges makes any claim or defence of the opposite party not maintainable; (b) which, if not specifically pleaded, might take the opposite party by surprise; or S/N XjSz5uYk/ECa9qVmfEQ3ow **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 (c) which raises issues of fact not arising out of the preceding pleading." 35. Dalam membincangkan kesan peruntukan tersebut, Mahkamah dalam kes YHL Realty Holding Sdn Bhd v Trident Success Sdn Bhd [2023] MLJU 996; [2023] 1 LNS 874 memutuskan bahawa:- “[36] The effect of the aforesaid rule has been commented in Malaysian Civil Procedure "White Book" at page 253 as follows:- "Effect of rule - Wherever a defendant has a special ground of defence or raises an affirmative case to destroy a claim he must plead specifically the matter he relies on for the purpose (Mohamed Abu Bakar s/o Yusof v. PA Syer Aboothahir s/o P Ahmed [1990] 2 CLJ Rep 482; [1990] 1 MLJ 26). "The effect of the rule is, for reasons of practice and convenience, to require the party to tell his opponent what he is coming to court to prove" per Buckley LJ in Re Robinson's Settelement; Gant v. Hobbs[1912] 1 Ch 717 at 728, CA (Eng): Re Estate of Choong Lye Hin, decd; Choong Gim Guan v. Choong Gim Seong [1976] 1 LNS 130; [1977] 1 MLJ 96;..." 36. Maka, berdasarkan alasan-alasan ini, Mahkamah berpendapat bahawa Mahkamah ini bukannya forum untuk menyemak dan menyoal keesahan penghakiman yang diperolehi JC dan melainkan penghakiman tersebut diketepikan atau digantung, penghakiman tersebut akan mengikat kesemua pihak termasuk Mahkamah ini. Isu Keempat: Pemiutang Penghakiman telah gagal menyerahkan Notis Kebankrapan dalam tempoh 3 bulan pertama terhadap Pemiutang Penghakiman tanpa sebab yang munasabah S/N XjSz5uYk/ECa9qVmfEQ3ow **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 37. JD berhujah bahawa JC telah gagal menyampaikan Notis Kebankrapan terhadap JD sebelum tamatnya 3 bulan pertama. JC telah mendeposkan bahawa penyerahan Notis Kebankrapan hanya dibuat kepada JD setelah kebenaran untuk melanjutkan notis kebankrapan dibenarkan oleh Mahkamah. 38. JD mendakwa JC menyatakan bahawa kelewatan penyerahan Notis Kebankrapan adalah disebabkan JC menunggu pelupusan permohonan Kebenaran Memulakan Tindakan Kebankrapan terhadap JD. JD mendakwa, kelewatan JC dalam menyampaikan Notis Kebankrapan terhadap JD timbul akibat kegagalan JC sendiri dalam memtauhi seksyen 5(3)(b) Akta Tersebut, yakni memfailkan Notis Kebankrapan hanya selepas memperolehi kebenaran Mahkamah menurut seksyen tersebut. Maka, JD berhujah bahawa JC telah sengaja lelap ke atas haknya untuk tidak menyempurnakan serahan Notis Kebankrapan dalam masa yang ditetapkan dan gagal untuk memberikan alasan yang munasabah untuk kegagalan tersebut. 39. Mahkamah dapati perintah Mahkamah dalam membenarkan lanjutan masa untuk menyerahkan Notis Kebankrapan bertarikh 12.3.2023 adalah masih sah dan tidak diketepikan oleh JD. Mahkamah tidak seharusnya hilang arah berkenaan permohonan JD iaitu permohonan untuk mengetepikan Perintah Kebenaran untuk memulakan tindakan kebankrapan terhadap JD. JD tidak seharusnya dibenarkan membuat serangan koleteral kepada perintah Mahkamah dalam memberikan perintah lanjutan menyerahkan Notis Kebankrapan dalam prosiding S/N XjSz5uYk/ECa9qVmfEQ3ow **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 ini dan JD perlu membuat permohonan berasingan yang diusulkan bagi tujuan itu sendiri. Dalam hal ini, Mahkamah merujuk kepada kes Development & Commercial Bank Berhad v Aspatra Corporation Sdn Bhd & Anor [1995] 3 MLJ 472; [1996] 1 CLJ 141; [1995] 2 MLRA 116; [1996] 3 AMR 3627 di mana Mahkamah Agung memutuskan bahawa:- “The order of substituted service of the High Court, a superior Court of competent jurisdiction, must be obeyed by every one save in a few and rare exceptions and it can only be challenged as regards its validity by the only way of having it set aside by proceedings instituted for the very purpose. It cannot be challenged thus collaterally in any proceedings as regards its validity save in a very few rare exceptions, (such as a Bankruptcy Court going behind a judgment of any Court on credibly raised issues of collusion, fraud, etc. only on hearing a bankruptcy petition), which all do not apply here,…. In this connection, it is immaterial that the said order of the High Court was actually made by the learned Registrar and not a High Court Judge. The learned Registrar should be considered notionally to be making the order as if he were a deputy High Court Judge.” 40. Maka, atas alasan ini, hujahan JD atas isu ini juga adalah tidak bermerit. S/N XjSz5uYk/ECa9qVmfEQ3ow **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 Kesimpulan: 41. Berdasarkan alasan-alasan yang dinyatakan di atas, Mahkamah membenarkan permohonan JD dalam lampiran 15 iaitu permohonan untuk mengetepikan perintah kebenaran Mahkamah untuk JC memulakan tindakan kebankrapan terhadap JD yang merupakan seorang penjamin bertarikh 29.3.2023 atas isu pertama sahaja. Manakala berkenaan isu kedua hingga isu kelima, Mahkamah tidak bersetuju dengan pendirian JD. Mahkamah menggunakan budi bicara Mahkamah untuk tidak mengenakan sebarang perintah terhadap kos. Bertarikh: 26 September 2023 Disediakan oleh, …………………………………. ARUN A/L NOVAL DASS Timbalan Pendaftar Mahkamah Tinggi Malaya Johor Bahru S/N XjSz5uYk/ECa9qVmfEQ3ow **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 Pihak-pihak: 1. Tetuan Tawfeek Badjenid & Partners Peguambela & Peguamcara Peguam Pemiutang Penghakiman Suite M-06, Mezzannine Floor, Menara TJB, No.9, Jalan Syed Mohd Mufti, 80000 Johor Bahru, Johor (Ruj:TBP/JB/MARA(JB)/L/230008-23/AKMA) … Puan Shahirah Binti Alizaman 2. Tetuan Hafiz Baharudin & Assoc. Peguambela & Peguamcara Peguam Penghutang Penghakiman B5-22, Aras 5, Bangunan Kumpulan Muara, Persiaran Perbandaran, Seksyen 14, 40000 Shah Alam, Selangor (Ruj: HBA/LIT/0523/12/BN) … Encik Khairul Bakri Bin Bhaktiar S/N XjSz5uYk/ECa9qVmfEQ3ow **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 Kes-kes yang dirujuk: 1. Hong Leong Bank Berhad v Ong Moon Huat & Another Appeal [2018] MLJU 1576; [2018] 1 LNS 1612; [2018] MLRAU 504 2. Ismail Nasaruddin Abdul Wahab v Malaysian Airline System Bhd [2022] 6 MLJ 414; [2022] 9 CLJ 801; [2022] 6 MLRA 696; [2022] 7 AMR 641 3. Pengusaha, Tempat Tahanan Perlindungan Kamunting, Taiping & Ors v Badrul Zaman Ps Md Zakariah [2018] 12 MLJ 49; [2018] 8 CLJ 273; [2018] 6 MLRA 177; [2018] 5 AMR 733 4. Hong Leong Bank Bhd v Khairulnizam Jamaludin [2016] 4 MLJ 302; [2016] 7 CLJ 335; [2016] 4 MLRA 603; [2016] 4 AMR 246 5. Liew Hon Kong v Bank Pertanian Malaysia Bhd [2022] 1 MLJ 836; [2021] 9 CLJ 82; [2021] 6 MLRA 641; [2021] AMEJ 1158 6. Per: Lim Sue Beng v AmBank (M) Berhad & Ors [2022] MLJU 3147; [2022] 1 LNS 2822 7. Dalip Bhagwan Singh v PP [1998] 1 MLJ 1; [1997] 4 CLJ 645; [1997] 1 MLRA 653; [1997] 4 AMR 4029 8. Rusli Ab Ghani; Ex-Parte: CIMB Bank Berhad [2018] 1 LNS 1528; [2018] MLRHU 1180 9. Metramac Corp Sdn Bhd v Fawziah Holdings Sdn Bhd [2006] 4 MLJ 113; [2006] 3 CLJ 177; [2006] 1 MLRA 666; [2006] 3 AMR 725 10. CIMB Bank Berhad v Mastura Musaed [2010] MLJU 538; [2010] 1 LNS 529; [2010] 6 MLRH 927 11. Per: Chan Wai Fong v Ex-Parte: Everest Web Sdn Bhd [2022] MLJU 1253; [2022] 1 LNS 1277; [2022] AMEJ 0733 12. Re Yong Tet On, Paul, Ex Parte Chung Khiaw Bank Ltd [1996] 1 MLJ 721; [1996] 1 CLJ 836; [1995] 3 MLRH 830 13. YHL Realty Holding Sdn Bhd v Trident Success Sdn Bhd [2023] MLJU 996; [2023] 1 LNS 874 14. Development & Commercial Bank Berhad v Aspatra Corporation Sdn Bhd & Anor [1995] 3 MLJ 472; [1996] 1 CLJ 141; [1995] 2 MLRA 116; [1996] 3 AMR 3627 S/N XjSz5uYk/ECa9qVmfEQ3ow **Note : Serial number will be used to verify the originality of this document via eFILING portal Pengenalan Analisis dan keputusan Mahkamah (Lampiran 15) Isu Kedua: JC gagal melengkapkan semua tindakan pelaksanaan dan penguatkuasaan sebagaimana dikehendaki di bawah seksyen 5(4) Akta Tersebut Isu Ketiga: Pemiutang Penghakiman telah melaksanakan tindakan kebankrapan berdasarkan kepada penghakiman yang cacat, defektif dan tidak teratur Isu Keempat: Pemiutang Penghakiman telah gagal menyerahkan Notis Kebankrapan dalam tempoh 3 bulan pertama terhadap Pemiutang Penghakiman tanpa sebab yang munasabah Kesimpulan:

Tika 2.6.0

BA-42S-44-12/2021

PERAYU YEE CHIEN HWEE RESPONDEN Pendakwa Raya [TIMBALAN PENDAKWA RAYA ]

Di Mahkamah Sesyen Ampang, Selangor, OKT disabitkan atas kesalahan di bawah seksyen 15(1)(a) Akta Dadah Berbahaya 1952 (“ADB”). Dia dijatuhkan hukuman penjara 7 tahun serta 3 sebatan (dan setelah selesai menjalani hukuman di penjara, dia akan diletakkan di bawah pengawasan polis selanjutnya selama 2 tahun)Di akhir kes pendakwaan HMS telah memutuskan bahawa pihak pendakwaan telah berjaya membuktikan kes prima facie terhadap OKT diatas pertuduhan di bawah seksyen 15(1)(a) ADB dan dihukum dibawah seksyen 39C (1)(b) ADB dan dihukum dibawah seksyen 39C(1)(b) dikenakan terhadap OKT.Ekoran daripada pembuktian suatu kes prima facie, OKT telah diperintah untuk membela diri. OKT telah memilih untuk memberi keterangan bersumpah dari kandang saksi dan tidak memanggil mana-mana saksi. Hakim Mahkamah Sesyen berpuas hati bahawa OKT gagal menunjukkan keraguan munasabah terhadap kes pihak Pendakwaan. Oleh itu, OKT disabitkan dengan kesalahan di bawah seksyen 15(1)(a) ADB. Semasa di Mahkamah Sesyen, OKT enggan mengemukakan sebarang faktor mitigasi semasa Hakim Mahkamah Sesyen mempertimbangkan jenis hukuman. Maka, Hakim Mahkamah Sesyen tidak mempunyai pilihan selain menjatuhkan hukuman tersebut terhadap OKT. Terkilan dengan keputusan tersebut, OKT merayu ke Mahkamah Tinggi.Setelah merujuk kepada rekod rayuan dan keterangan saksi-saksi Pendakwaan dan pembelaan, Mahkamah mendapati bahawa pihak berkuasa polis telah mematuhi prosedur sepenuhnya dalam pengumpulan sampel air kencing OKT. OKT juga tidak menafikan ada memberikan sampel air kencing bagi tujuan saringan air kencing. Mahkamah mendapati tiada terdapat sebarang kekhilafan di dalam keputusan HMS dan sabitan terhadap OKT adalah selamat untuk dikekalkan. Berkaitan dengan hukuman yang ditimbulkan oleh OKT untuk dikurangkan, Mahkamah mengambilkira bahawa walaupun pertuduhan terhadap OKT adalah di bawah seksyen 15 (1) (a) ADB tetapi memandangkan OKT telah pernah disabitkan sebanyak 2 kali di bawah pertuduhan yang sama, maka penalti lebih berat dikenakan dibawah seksyen 39C (1) (b) ADB. Mahkamah juga mengambil maklum akan rayuan OKT tentang hukuman dan juga mengambilkira bahawa kesalahan seumpama ini adalah lebih kepada pemberian dadah kepada diri sendiri, walaubagaimanapun mengikut seksyen 39C (1) (b) hukuman penjara adalah tidak kurang daripada 5 tahun dan tidak lebih dari 7 tahun dan hendaklah juga dikenakan sebat tidak lebih daripada tiga sebatan. Mahkamah ini juga mengambilkira faktor kepentingan awam dan mengekalkan hukuman yang dikenakan oleh HMS.Oleh itu, rayuan Perayu / OKT ditolak dan sabitan dan hukuman yang dikenakan oleh HMS dikekalkan.

22/11/2023

YA Dato' Sri Latifah Binti Haji Mohd Tahar

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1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN RAYUAN JENAYAH NO: BA-42S-44-12 TAHUN 2021 Antara YEE CHIEN HWEE (NO. K/P: 820624-11-5521) ... PERAYU dan PENDAKWA RAYA ... RESPONDEN (Dalam perkara rayuan jenayah No. BA-42S-44-12/2021 dalam Mahkamah Tinggi Malaya di Shah Alam Antara Yee Chien Hwee dengan Pendakwa Raya) 22/11/2023 11:23:29 BA-42S-44-12/2021 Kand. 59 S/N LofSsI8pUKuhX8imVa6mQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Alasan Penghakiman (Kandungan 1) PENGENALAN [1] Alasan penghakiman ini adalah alasan Mahkamah menolak rayuan yang difailkan oleh Tertuduh (OKT) / Perayu. [2] Di Mahkamah Sesyen Ampang, Selangor, OKT disabitkan atas kesalahan di bawah seksyen 15(1)(a) Akta Dadah Berbahaya 1952 (“ADB”). Dia dijatuhkan hukuman penjara 7 tahun serta 3 sebatan (dan setelah selesai menjalani hukuman di penjara, dia akan diletakkan di bawah pengawasan polis selanjutnya selama 2 tahun). [3] Terkilan dengan keputusan Hakim Mahkamah Sesyen (HMS), OKT merayu ke Mahkamah Tinggi terhadap sabitan serta hukuman. Walau bagaimanapun, setelah meneliti rekod rayuan serta hujahan-hujahan bertulis dan selepas mendengar hujahan lisan pihak-pihak, saya mendapati tiada alasan yang kukuh untuk mengganggu keputusan HMS. PERTUDUHAN [4] Pertuduhan terhadap OKT adalah seperti berikut:- “Bahawa kamu pada 03/12/2019, jam lebih kurang 9.00 malam, bertempat di Pejabat Narkotik, IPD Ampang Jaya, Ampang didalam Daerah Hulu Langat, di dalam Negeri Selangor, didapati telah menggunakan dadah berbahaya iaitu “Methamphetamine” dan kamu sebelum ini telah disabitkan sebanyak (2) kali dengan kesalahan di bawah seksyen 15(1) (a) Akta Dadah Berbahaya 1952 (ADB1952) iaitu:- S/N LofSsI8pUKuhX8imVa6mQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 1) Mahkamah Majistret Ampang Tarikh Jatuh Hukum: 17/4/2008 Seksyen 15 (1) (a) ADB 1952 Hukuman : (4) bulan penjara dari tarikh tangkap 21/1/2008 dan 2 tahun pengawasan. 2) Mahkamah Majistret (2) Ampang Tarikh Jatuh Hukum : 15/11/2018 Seksyen 15 (1) (a) ADB 1952 Hukuman : (7) bulan Penjara dari tarikh tangkap 9/8/2018 dan (2) tahun pengawasan Dengan itu kamu telah melakukan satu kesalahan dibawah seksyen 15(1) (a) ADB 1952 yang boleh dihukum dibawah seksyen 39C(1)(b) Akta yang sama. KES PENDAKWAAN [5] Bagi membuktikan pertuduhan terhadap OKT, Pendakwaan telah memanggil seramai sembilan (9) orang saksi. [6] Pada 3.12.2019, SP1 telah membuat tangkapan atas OKT bersabit laporan polis Ampang Report 27096 /19 yang dibuat oleh isteri OKT. OKT disyaki terlibat dengan seksyen 324 Kanun Keseksaan kerana memukul isterinya. SP1 telah membawa OKT ke Bahagian Siasatan Jenayah Narkotik IPD Ampang Jaya dengan diiringi oleh SP6 untuk menjalani ujian saringan awal air kencing ke atas OKT. [7] SP7 telah mengarahkan OKT memilih satu botol spesimen air kencing yang berada dalam kotak di atas meja. Botol-botol ini berada dalam S/N LofSsI8pUKuhX8imVa6mQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 pembungkus sampul plastik yang bertutup (seal). OKT telah mengambil salah satu sampul yang mengandungi botol spesimen air kencing yang mempunyai no siri. 0765081 (ekshibit P5 m.s 6 Jilid 3). OKT kemudiannya telah mengoyakkan sampul plastik dan mengeluarkan botol spesimen air kencing yang kosong dari dalam sampul tersebut. Pihak-pihak tidak mempertikaikan fakta bahawa SP6 adalah orang yang menemani OKT menjalani ujian air kencing ketas OKT. [8] SP6 telah mengiringi OKT ke tandas untuk mengambil sampel air kencing atas arahan SP7. SP6 melihat sendiri OKT memberikan sampel air kencing ke dalam botol spesimen. Kemudian OKT membawa botol yang mengandungi spesimen air kencing ke meja ujian. Di meja ujian, SP7 telah menjalankan ujian saringan ke atas air kencing OKT dengan menggunakan test strip. Ujian saringan awal ini menunjukkan air kencing OKT positif dadah jenis methamphetamine. [9] Justeru, selepas sampel air kencing tersebut didapati positif dadah, SP7 melabelkan pada botol sampel air kencing itu dan mengarahkan OKT menandatangani pada label tersebut. SP7 kemudian menyerahkan sampel air kencing OKT bersama test strip (ekshibit P6 m.s 6 Jilid 3) itu kepada SP1. Sebaik sahaja SP1 menerima barang-barang tersebut, SP1 terus memeterai barangan tersebut dengan menggunakan meterai warna biru “Narkotik PDRM” (ekshibit P4 (1-4) m.s 19 Jilid 3). SP1 membuat Repot Polis Ampang No. 027137/19 (ekshibit P2 m.s 3 Jilid 3) bertarikh 3.12.201 dan menyediakan Borang Akuan/Terima Barang Kes (ekshibit P3 m.s.5 Jilid 3). SP1 kemudiannya menyerahkan OKT kepada Pegawai Penyiasat kes (SP9) beserta dengan barang-barang kes seperti berikut:- (i) Laporan Polis Ampang Report 27096/19; S/N LofSsI8pUKuhX8imVa6mQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 (ii) Laporan Polis Ampang Report 027137/19; (iii) 1 borang Permintaan Pengesahan Dadah Dalam Air Kencing; (iv) 1 botol spesimen air kencing no. siri 0765081; (v) 1 plastik botol spesimen air kencing no. siri 0765081; dan (vi) 1 plastik test strip no siri Lot 18020501. [10] Setelah menerima barang kes berkenaan pada 3.12.2019, SP6 menyimpan botol air kencing no. siri 0765081 (ekshibit P4 m.s 19 Jilid 3) yang berseal di dalam peti sejuk di pejabat SP9 dan menguncikan peti sejuk tersebut. Kunci peti sejuk hanya dipegang oleh SP9 dan tidak boleh diakses oleh orang lain. [11] Pada 5.12.2019 SP9 telah mengarahkan Jurugambar (SP8) untuk merakam gambar botol air kencing. SP9 kemudiannya telah meminta SP2 untuk menghantar botol spesimen air kencing no. siri 0765081 yang berseal ke Makmal Dadah dan Penyelidikan Jabatan Patologi Hospital Kuala Lumpur. [12] SP2 telah menerima botol spesimen air kencing daripada SP9 pada 5.12.2019 dan menyimpannya di dalam peti sejuk berkunci di pejabatnya yang mana hanya SP2 mempunyai akses kepada peti sejuk tersebut. SP2 seterusnya menghantar spesimen air kencing ke Jabatan Patologi pada 6.12.2019. [13] Pada 6.12.2019, SP3 (Juru Teknologi Kimia) menerima 1 set borang permintaan ujian pengesanan dadah dalam air kencing dan 1 botol spesimen air kencing atas nama OKT daripada SP2 dalam keadaan baik dan berseal. SP3 telah memastikan maklumat pada kedua-dua barang tersebut adalah sama dan isi padu botol dalam keadaan yang mencukupi iaitu sekurang- kurangnya 30ml untuk dianalisis. SP3 juga telah melekatkan label barcode S/N LofSsI8pUKuhX8imVa6mQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 nombor rujukan makmal 9569916 2019 yang sama pada P7 serta botol specimen air kencing OKT untuk membezakan dengan sampel penama lain. Kemudian spesimen dan P7 terus diserahkan kepada SP4 untuk dianalisis. [14] SP4 juga telah membuat semakan borang yang diterima (P7) dan botol urin adalah sama padanan maklumat tertera seperti nama dan pengenalan diri OKT, tandatangan serta pelekat berkod yang dikeluarkan oleh SP3. Menurut SP3 dan SP1, identiti setiap botol urin adalah berbeza berdasarkan set pelekat berkod no. makmal yang dilekatkan. [15] SP4 telah memulakan ujian pada hari yang sama iaitu pada 6.12.2019 dengan ujian yang pertama iaitu ujian saringan menggunakan kaedah Immunoassay menggunakan analyser jenama COBAS 600. Daripada ujian saringan yang dijalankan, SP1 dapati sampel air kencing atas nama OKT positif dadah dalam kumpulan Amphetamine Type Stimulants (ATS). [16] Pada 21.1.2020, SP4 telah lanjutkan ujian pengesahan dengan kaedah Gas Chromatography Mass Spectometry (GCMS) menggunakan mesin GCCMS AGILENT. Hasil ujian sekali lagi mendapati sampel air kencing OKT ada mengandungi dadah jenis Methamphetamine yang disenaraikan di Jadual Pertama Bahagian III, ADB 1952. [17] SP4 telah menyediakan laporan dibawah seksyen 399 Kanun Tatacara Jenayah pada 23.1.2020 (ekshibit P8 m.s 8 Jilid 3) dan dalam laporan tersebut, SP4 melaporkan bahawa keputusan analisa sampel urin OKT adalah positif iaitu mengandungi dadah jenis “methamphetemine” yang tersenarai dibawah Bahagian III, Jadual Pertama, Akta Dadah Berbahaya 1952. Laporan telah diserahkan kepada SP2 pada 31.1.2020. S/N LofSsI8pUKuhX8imVa6mQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 [18] Berdasarkan hasil siasatan SP9 dan keterangan SP1 berkenaan rekod jenayah lampau OKT, terdapatnya 2 kes terhadap OKT di bawah seksyen 15(1) (a) ADB 1952 (Rujukan kepada ekshibit P10 m.s 11 Jilid 3). BEBAN PEMBUKTIAN DI AKHIR KES PENDAKWAAN [19] Di akhir kes pendakwaan HMS telah memutuskan bahawa pihak pendakwaan telah berjaya membuktikan kes prima facie terhadap OKT diatas pertuduhan di bawah seksyen 15(1)(a) ADB dan dihukum dibawah seksyen 39C (1)(b) ADB dan dihukum dibawah seksyen 39C(1)(b) dikenakan terhadap OKT. [20] Mahkamah merujuk kepada keterangan di Mahkamah Sesyen dan bersetuju dengan dapatan HMS bahawa keseluruhan prosedur pengumpulan sampel air kencing telah dipatuhi dengan baik oleh polis pada setiap masa seperti prosedur yang ditetapkan dalam seksyen 31A ADB dan juga prinsip yang termaktub. [21] Pendakwaan telah membuktikan intipati dibawah seksyen 15 (1) (a) ADB 1952 dan seksyen 39C (1) ADB 1952 seperti berikut:- i) OKT telah menggunakan dadah berbahaya jenis Methamphetamine yang ditetapkan di Bahagian III dalam Jadual Pertama ADB 1952. ii) OKT bukanlah seorang yang sah yang dibenarkan untuk menggunakan dadah Methamphetamine; dan iii) OKT mempunyai dua rekod sabitan lampau dibawah seksyen 15(1) (a) ADB 1952. OKT telah menggunakan dadah berbahaya jenis Methamphetamine yang ditetapkan di Bahagian III dalam Jadual Pertama ADB 1952. S/N LofSsI8pUKuhX8imVa6mQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 [22] Intipati perenggan 22 (i) telah berjaya dibuktikan dan HMS berpuashati bahawa spesimen air kencing dalam botol (ekshibit P4(1-4) m.s 19 Jilid 3) adalah milik OKT kerana rantaian keterangan saksi-saksi tidak putus dan tiada juga percanggahan dalam keterangan saksi, bermula dari SP7 yang meminta OKT untuk memilih botol kosong dan OKT telah memilih botol kosong bernombor siri 0765081 (ekshibit P5 m.s 6 Jilid 3), sehinggalah ke peringkat SP4. [23] SP7 telah menjalankan ujian saringan awal air kencing OKT dengan menggunakan test strip dengan mencelupkan test strip ke dalam air kencing OKT. SP7 menyatakan keputusan air kencing OKT melalui test strip tersebut adalah positif methamphetamine. SP7 telah mencatatkan butiran nama OKT dan tandatangan OKT di atas kertas pelekat dan menampalkannya di atas botol air kencing (ekshibit P4). Botol air kencing tersebut ditutup dan disealkan oleh SP7. SP7 kemudiannya telah menyerahkan botol sampel air kencing kepada SP1 dan mengarahkan SP1 untuk membuat Laporan Polis. [24] SP1 telah menerima barang-barang kes iaitu satu botol spesimen air kencing no. siri 0765081 (P4), satu plastik botol spesimen no. siri 0765081 (P5), satu meth urine test strip Lot 18020501 (P6) dan Borang Permintaan Ujian Pengesanan Dadah Dalam Air Kencing (P7) daripada SP7 dan kemudiannya telah menyerahkan barang-barang kes ini kepada Pegawai Penyiasat SP9 sebagaimana yang tercatat dalam borang Akuan / Terima Barang Kes (P3). [25] SP9 kemudiannya telah meminta SP2 untuk menghantar botol spesimen air kencing ke Jabatan Patologi, Hospital Kuala Lumpur. SP2 kemudiannya telah menyerahkan botol spesimen air kencing bersama dengan Borang Permohonan Pengesanan Dadah Dalam Air Kencing kepada Juru Teknologi S/N LofSsI8pUKuhX8imVa6mQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 Makmal Perubatan di Jabatan Patologi (SP3). SP3 telah menerima dan menyemak maklumat pada Borang Permintaan Ujian Pengesahan Dadah Dalam Air Kencing (P7) adalah sama dengan maklumat pada botol spesimen air kencing (P4). [26] SP3 juga telah melabelkan barcode pada Borang (P7) dan juga pada botol spesimen air kencing (P4) dengan nombor barcode JPHKL 9569916 2019 untuk memastikan botol spesimen air kencing dan juga borang permintaan ujian mempunyai nombor barcode yang sama dan supaya ia berbeza dengan borang permintaan yang lain. Setelah itu, SP4 telah menyerahkan borang permintaan ujian bersama botol spesimen air kencing kepada Pegawai Kimia bertugas iaitu SP4. [27] Tidak boleh disangkal bahawa sampel air kencing itu sememangnya positif dadah jenis methamphetamine dan adalah milik OKT berdasarkan Laporan Ahli Kimia yang ditulis oleh SP4. [28] Mahkamah berpuashati bahawa tiada isu berbangkit mengenai rantaian jagaan. Cubaan OKT mencabar SP4 mengenai isu rantaian jagaan botol sampel air kencing miliknya yang diperiksa oleh makmal tidak boleh diterima. Lebih-lebih lagi tiada bukti yang ditunjukkan oleh OKT bahawa sampel air kencingnya telah diusik atau rantaian jagaan terputus. OKT juga gagal untuk menunjukkan kepada Mahkamah Sesyen bahawa dia adalah seorang yang terkecuali dibawah seksyen 14(2) ADB. [29] Isu yang dibangkitkan oleh OKT bahawa pengambilan sampel air kencing tidak mematuhi prosedur di bawah seksyen 31A ADB tidak timbul memandangkan seksyen tersebut memperuntukkan bahawa spesimen air kencing orang yang ditahan perlu diambil oleh Pegawai Perubatan, tetapi bagi S/N LofSsI8pUKuhX8imVa6mQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 maksud pemeliharaan keterangan, pegawai polis sekurang-kurangnya berpangkat Sarjan dan ke atas boleh menjalankan ujian tersebut sekiranya ia adalah sesuatu yang tidak praktikal bagi memanggil Pegawai Perubatan untuk mendapatkan spesimen seperti dalam kes dihadapan Mahkamah ini. [30] Ujian saringan awal telah dilakukan oleh SP7 yang merupakan pegawai berpangkat Sub Inspektor yang telah mematuhi peruntukan seksyen 31A ADB. Walaupun SP6 yang mengiringi OKT ke tandas untuk mendapatkan spesimen air kencing OKT, namun SP6 bertindak sedemikian atas arahan dan penyeliaan SP7. Ini adalah selaras dengan peruntukan 31A(1A) ADB. Walaupun, ketiadaan Pegawai Perubatan, pengambilannya masih selaras dengan seksyen 31A(1A) ADB. [31] OKT dalam kes ini menggunakan dadah berbahaya keatas dirinya sendiri dan oleh yang demikian adalah penting untuk spesimen air kencing OKT diperolehi segera sebelum kesan dadah hilang dari badannya. Sebarang kelewatan dalam pengambilan sampel air kencing boleh menjejaskan pemeliharaan keterangan atau bukti (Rujukan kes PP v Mohamad Rasid Jusoh [2009) 9 CLJ 557). [32] Mahkamah bersetuju dengan HMS menggunapakai peruntukan berkenaan anggapan dibawah seksyen 37(k) ADB dan berpuashati bahawa prosedur pengambilan sampel air kencing telah dipatuhi. SP4 yang merupakan Pegawai Sains (Kimia Hayat) di Makmal Dadah dan Penyelidikan Jabatan Patologi HKL telah melakukan analisa spesimen air kencing OKT dan mengesahkan hasil akhir ujian analisa didapati positif dadah jenis Methamphetemine yang tersenarai dalam Jadual Pertama Bahagian III Akta ADB. SP4 juga telah mengeluarkan Laporan dibawah seksyen 399 Kanun Tatacara Jenayah (Ekshibit P8). S/N LofSsI8pUKuhX8imVa6mQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 [33] Berkaitan isu DNA yang dibangkitkan oleh OKT, Mahkamah berpuashati bahawa rantaian keterangan daripada proses pengambilan spesimen air kencing OKT sehinggalah ujian dijalankan oleh SP4 tidak terputus. Tiada keraguan bahawa sampel air kencing yang dianalisa oleh SP4 adalah kepunyaan OKT, oleh itu tiada keperluan untuk ujian DNA dijalankan. [34] Intipati Perenggan 21 (ii) OKT bukanlah seorang yang sah yang dibenarkan untuk menggunakan dadah Methamphetamine. Sepanjang perbicaraan OKT tidak pernah membangkitkan bahawa OKT ada mengambil apa-apa ubat yang mengandungi apa-apa jenis dadah seperti yang ditetapkan atau disyorkan oleh mana-mana Pegawai Perubatan. Oleh itu, OKT bukanlah orang yang sah yang dibenarkan untuk menggunakan dadah methamphetamine. [35] Intipati Perenggan 21 (iii) OKT mempunyai dua rekod sabitan lampau di bawah seksyen 15(1)(a) ADB. Rekod kesalahan lampau OKT (ekshibit P9 dan P10) melalui SP5 yang bertugas sebagai Penolong Pendaftar Penjenayah di Pusat Pendaftaran Penjenayah Malaysia dan Singapura, Bukit Aman (Ekshibit P10) menunjukkan bahawa OKT pernah disabitkan dengan dua kesalahan di bawah seksyen 15(1)(a) ADB. DAPATAN MAHKAMAH SESYEN DI AKHIR KES PENDAKWAAN [36] Di akhir kes Pendakwaan HMS setelah membuat penilaian maksima keatas keterangan yang dikemukakan oleh pihak Pendakwaan dan membuat penilaian kredibiliti saksi-saksi pendakwaan dan mendapati pihak Pendakwaan telah berjaya membuktikan kes prima facie terhadap OKT di atas pertuduhan seksyen 15 (1) (a) ADB dan dihukum dibawah seksyen 39C (1)(b) Akta yang sama. S/N LofSsI8pUKuhX8imVa6mQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 KES PEMBELAAN [37] Ekoran daripada pembuktian suatu kes prima facie, OKT telah diperintah untuk membela diri. OKT telah memilih untuk memberi keterangan bersumpah dari kandang saksi dan tidak memanggil mana-mana saksi. Semasa pembelaannya di Mahkamah Sesyen, OKT berhujah, antara lain seperti berikut:- (a) Ujian saringan dilakukan oleh SP6 dan bukan SP7. SP6 yang menemaninya untuk mengambil sampel air kencing; (b) SP1 tidak berada di tempat kejadian semasa botol sampel air kencing menjalani ujian saringan awal; (c) OKT tidak diberi peluang untuk memilih sampel botol air kencing kerana hanya terdapat satu sampel botol air kencing diletakkan di atas meja pada masa material; (d) “test strip” tersebut hanya menunjukkan “satu baris” (single line) hasil daripada ujian saringan awal. Walau bagaimanapun, “test strip” tersebut mesti menunjukkan “garisan berganda” (double line) untuk mengesahkan air kencing itu positif dadah; (e) Ahli Kimia tidak melakukan ujian DNA ke atas sampel air kencing yang dikumpul dan oleh itu, ia mungkin bukan milik OKT; (f) botol sampel air kencing tidak dimeterai dengan “seal” tetapi hanya dilekat dengan “Pelekat Narkotik PDRM”; (g) tiada rakaman CCTV untuk merakamkan prosedur pengumpulan air kencing. [38] Hakim Mahkamah Sesyen telah meneliti dan menimbangkan keterangan OKT dan berpuashati bahawa OKT tidak dapat menimbulkan apa-apa keraguan yang munasabah terhadap kes Pendakwaan. S/N LofSsI8pUKuhX8imVa6mQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 [39] OKT tidak menafikan dia sebenarnya telah menyediakan sampel air kencing untuk tujuan ujian saringan awal. [40] Walaupun SP6 merupakan pegawai yang menemani OKT mengambil sampel air kencing itu, dan walaupun SP7 adalah pegawai yang melakukan ujian saringan awal di bawah arahan SP1, OKT gagal menunjukkan sebarang bukti bahawa terdapat konspirasi untuk menganiaya OKT. Tiada sebab juga untuk SP1, SP6 dan SP7 cuba menyalahkan OKT dan menyebabkan OKT didakwa dengan pertuduhan jenayah. [41] No siri. 0765081 untuk tujuan menjalani ujian air kencing. Pihak-pihak tidak mempertikaikan fakta bahawa SP6 adalah orang yang menemani OKT menjalani ujian air kencing ke atas OKT. [42] Pembelaan yang dibangkitkan dalam perenggan 37 (c) dan (d) adalah hujahan kosong. Hakim Mahkamah Sesyen berpendapat bahawa kedua-dua rantaian jagaan serta rantaian keterangan tidak terputus. [43] Bagi pembelaan di perenggan 37 (f) dan (g) di atas, Hakim Mahkamah Sesyen berpandangan bahawa pembelaan-pembelaan ini hanyalah afterthoughts. Ini kerana kedua-dua pembelaan di perenggan 37 (f) dan (g) ini tidak pernah dibangkitkan oleh OKT semasa pemeriksaan balas saksi pihak pendakwaan. Semasa perbicaraan, SP3, SP4 dan SP9 telah mengesahkan kepada Mahkamah bahawa botol sampel air kencing yang diterima dalam keadaan sempurna dan sealed. Oleh itu, kedua-dua pembelaan ini dalam perenggan 37 (f) dan (g) ditolak. [44] Berkenaan pembelaan di perenggan 37 (e) di atas. OKT berhujah bahawa Ahli Kimia (SP4) tidak melakukan ujian DNA ke atas botol sampel air S/N LofSsI8pUKuhX8imVa6mQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 kencing, Hakim Mahkamah Sesyen sekali lagi mendapati pembelaan ini sebagai afterthoughts. SP4 bukan sebahagian daripada penyiasatan dan tidak pernah diarah melakukan sebarang ujian DNA ke atas botol sampel air kencing itu. Selain itu, OKT tidak pernah mencabar keterangan saksi pendakwaan lain bahawa sampel air kencing yang dikumpul telah diusik. DAPATAN HAKIM MAHKAMAH SESYEN DI AKHIR KES PEMBELAAN [45] Berdasarkan keterangan di atas, Hakim Mahkamah Sesyen berpuas hati bahawa OKT gagal menunjukkan keraguan munasabah terhadap kes pihak Pendakwaan. Oleh itu, OKT disabitkan dengan kesalahan di bawah seksyen 15(1)(a) ADB. [46] Semasa di Mahkamah Sesyen, OKT enggan mengemukakan sebarang faktor mitigasi semasa Hakim Mahkamah Sesyen mempertimbangkan jenis hukuman. Maka, Hakim Mahkamah Sesyen tidak mempunyai pilihan selain menjatuhkan hukuman tersebut terhadap OKT. Terkilan dengan keputusan tersebut, OKT merayu ke Mahkamah Tinggi. DAPATAN MAHKAMAH TINGGI [47] Setelah merujuk kepada rekod rayuan dan keterangan saksi-saksi Pendakwaan dan pembelaan, Mahkamah mendapati bahawa pihak berkuasa polis telah mematuhi prosedur sepenuhnya dalam pengumpulan sampel air kencing OKT. OKT juga tidak menafikan ada memberikan sampel air kencing bagi tujuan saringan air kencing. [48] Laporan Ahli Kimia yang ditulis oleh SP4 menunjukkan analisa yang dijalankan keatas botol sampel air kencing itu sememangnya positif dadah jenis methamphetamine dan adalah milik OKT. S/N LofSsI8pUKuhX8imVa6mQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 [49] Mahkamah juga mendapati tiada isu berbangkit mengenai rantaian jagaan (chain of custody). OKT cuba mencabar SP4 mengenai isu rantaian jagaan botol sampel air kencing yang diperiksa oleh makmal adalah miliknya. Bagaimanapun, OKT tidak membuktikan dengan kukuh bahawa sampel air kencingnya telah diusik atau rantaian jagaan terputus. Keterangan SP6 mengesahkan SP7 yang menjalankan saringan dan tiada keterangan yang menunjukkan SP1, SP6 dan SP7 telah berkomplot untuk memberikan keterangan bagi tujuan menganiaya OKT. OKT semasa soal balas oleh pihak Pendakwaan telah mengesahkan bahawa semasa ujian dijalankan, OKT sendiri yang memegang dan membawa botol sampel air kencing ke meja ujian. Ini bercanggah dengan keterangan OKT sendiri bahawa SP6 yang membawa botol sampel air kencing OKT untuk dibuat ujian saringan. [50] Mahkamah juga mendapati bahawa pembelaan OKT bahawa seal botol air kencing bukanlah seal meterai tetapi hanya pelekat narkotik PDRM dan bahawa tiada rakaman CCTV yang merakam pengambilan air kencing di Pejabat Narkotik adalah pemikiran semula dan tidak boleh diterima. Keterangan SP3, SP4 dan SP9 telah mengesahkan bahawa botol sampel air kencing yang diterima adalah berseal seperti yang dilihat pada ekshibit P4. [51] Mahkamah juga merujuk kepada pembelaan OKT yang menyatakan bahawa tiada ujian DNA dibuat terhadap sampel air kencing OKT yang diterima. Apa yang jelas SP4 menerima Borang Permintaan Pengesanan Dadah Dalam Air Kencing dan botol sampel air kencing yang mengandungi maklumat-maklumat OKT dan SP4 menjalankan ujian air kencing berdasarkan maklumat yang tertera pada borang dan botol sampel air kencing tersebut. OKT tidak menyoal balas berkaitan cara pengendalian dan penyimpanan sampel air kencing sebelum diterima oleh SP4 dan OKT tidak pernah S/N LofSsI8pUKuhX8imVa6mQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 mencadangkan kepada saksi Pendakwaan bahawa sampel air kencing tersebut telah tercemar dan kepunyaan orang lain. [52] Pembelaan OKT bahawa SP3 dan SP5 tidak membuat ujian untuk mengesan cap jari OKT pada botol tidak boleh diterima oleh Mahkamah. SP3 adalah Juru Teknologi Makmal di Jabatan Patologi yang bertugas untuk menerima Borang Permintaan Pengesanan Dadah Dalam Air Kencing dan botol specimen air kencing. SP3 telah memastikan maklumat-maklumat dalam borang permintaan adalah sama dengan maklumat dibotol spesimen air kencing yang diterima. Bukanlah tugas SP3 untuk menjalankan ujian bagi cap jari pada botol specimen air kencing yang diterima. SP5 pula pegawai yang menjaga rekod di Pusat Pendaftaran Penjenayah dan tiada akses kepada botol air kencing OKT dan adalah tidak munasabah dan masuk akal bagi SP5 membuat ujian bagi cap jari OKT. OKT juga telah gagal menyoal SP9 (Pegawai Penyiasat) sama ada terdapatnya keperluan/prosedur membuat ujian pengesanan cap jari OKT pada botol spesimen yang diterima dari SP1. [53] Berkaitan isu alibi di bawah seksyen 402 Kanun Tatacara Jenayah yang ditimbulkan oleh OKT memandangkan OKT tidak diwakili oleh mana-mana Peguam, merujuk kepada Hujahan bertulis OKT (Lampiran 49), OKT menafikan memasuki sebarang jenis dadah ke dalam badannya semasa kejadian dan menafikan ujian saringan awal mahupun spesimen air kencing yang dihantar ke makmal untuk analisa adalah miliknya. OKT menyatakan sekiranya beliau dapat membuktikan OKT berada di tempat lain pada masa spesimen diambil. Mahkamah berpendapat hujahan ini hanya penegasan OKT tanpa bukti. S/N LofSsI8pUKuhX8imVa6mQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 [54] Kegagalan pihak Pendakwaan memanggil Korporal Yagappan a/l Sharimuthu ke Mahkamah tidak menjejaskan kes pihak Pendakwaan. Korporal Yagappan merupakan pegawai polis yang menerima laporan tangkapan sahaja. [55] Mahkamah juga berpuashati bahawa pengumpulan sampel air kencing OKT telah mematuhi seksyen 31A ADB. Tiada keterangan pembelaan yang meragukan kes pihak Pendakwaan. [56] Mahkamah dalam mendengar rayuan ini berpandukan kepada prinsip- prinsip undang-undang yang mantap di mana Mahkamah di peringkat rayuan seharusnya mengambil pendirian untuk tidak mengganggu keputusan yang dibuat oleh mahkamah perbicaraan melainkan ternyata keputusan tersebut terdapat salah arah, tidak menurut undang-undang dan terdapat keterangan kukuh yang menunjukkan bahawa hakim perbicaraan telah terkhilaf di dalam menilai keterangan yang telah dikemukakan semasa perbicaraan. [57] Dalam kes Amri Ibrahim & Anor v PP [2017] 1 CLJ 617, Mahkamah Persekutuan memutuskan seperti berikut:- “[51] It is trite law that the view of the trial judge as to the credibility of a witness must be given proper weight and consideration. An appellate court should be slow in disturbing such finding of fact arrived at by the trial judge, who had the advantage of seeing and hearing the witness, unless there were substantial and compelling reasons for disagreeing.” [58] Mahkamah juga merujuk kes LCY v TWY [2019] 7 CLJ 158, Tun Tengku Maimun Tuan Mat HMR (kini KHN) memutuskan seperti berikut:- S/N LofSsI8pUKuhX8imVa6mQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 “[26] The principle of law on appellate intervention is settled. In Dream Property Sdn BHd v Atlas Housing Sdn Bhd [2015] 2 CLJ 453, the Federal Court reiterated the principle as follows at p. 476; [61] It is now established that the principle on which an appellate court 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] 1 MLJ 1 (at p.10) per Steve Shim CJ SS . More recently, this principle of appellate intervention was affirmed by Federal Court in UEM Group Berhad v Genisys Integrated Engineers Pte Ltd/ 2010} 9 CLJ 785 where it was held at p.800’ and It is 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 in sufficient judicial appreciation of the evidence) see Chew Yee Wah & anor v Choo ah Pat [1978] 1 LNS 32; Watt v Thomson [1947] AC 484; and Chin v Lee Ing Chin & Ors [2004] 4 CLJ 309”. KESIMPULAN [59] Mahkamah mendapati tiada terdapat sebarang kekhilafan di dalam keputusan HMS dan sabitan terhadap OKT adalah selamat untuk dikekalkan. [60] Berkaitan dengan hukuman yang ditimbulkan oleh OKT untuk dikurangkan, Mahkamah mengambilkira bahawa walaupun pertuduhan terhadap OKT adalah di bawah seksyen 15 (1) (a) ADB tetapi memandangkan S/N LofSsI8pUKuhX8imVa6mQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 OKT telah pernah disabitkan sebanyak 2 kali di bawah pertuduhan yang sama, maka penalti lebih berat dikenakan dibawah seksyen 39C (1) (b) ADB. [61] Mahkamah juga mengambil maklum akan rayuan OKT tentang hukuman dan juga mengambilkira bahawa kesalahan seumpama ini adalah lebih kepada pemberian dadah kepada diri sendiri, walaubagaimanapun mengikut seksyen 39C (1) (b) hukuman penjara adalah tidak kurang daripada 5 tahun dan tidak lebih dari 7 tahun dan hendaklah juga dikenakan sebat tidak lebih daripada tiga sebatan. Mahkamah ini juga mengambilkira faktor kepentingan awam dan mengekalkan hukuman yang dikenakan oleh HMS. [62] Oleh itu, rayuan Perayu / OKT ditolak dan sabitan dan hukuman yang dikenakan oleh HMS dikekalkan. (LATIFAH BINTI HJ MOHD. TAHAR) HAKIM MAHKAMAH TINGGI MAHKAMAH TINGGI JENAYAH (4) SHAH ALAM SELANGOR DARUL EHSAN TARIKH: 17.11.2023 S/N LofSsI8pUKuhX8imVa6mQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 Peguamcara Perayu: Tetuan Sreetharan P33, Blok B Kelana Square 17, Jalan SS 7/26, 47301 Petaling Jaya, Selangor Bagi Pihak Responden: Timbalan Pendakwa Raya Pejabat Timbalan Pendakwa Raya Selangor, Aras 4, Podium Selatan, Bangunan Sultan Salahuddin Abdul Aziz Shah, Seksyen 5, 40000 Shah Alam Selangor S/N LofSsI8pUKuhX8imVa6mQ **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

B-05-260-08/2021

PERAYU Alowonle Oluwajuwon Gilbert RESPONDEN Pendakwa Raya [Pendakwa Raya]

Criminal law - appeal against conviction and sentence - appellant charged with the offence of murder under s.302 Penal Code - Abolition of mandatory death penalty - whether sentence of imprisonment of 30-40 years the rule for an offence of murder and sentence of death the exception - whether the sentence of death limited to murders committed extremely savagely, diabolical and brutal.

22/11/2023

YA Dato' S.M. Komathy A/P SuppiahKorumYA Datuk Vazeer Alam bin Mydin MeeraYA Dato' Ahmad Zaidi Bin IbrahimYA Dato' S.M. Komathy A/P Suppiah

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=6f195680-2b92-4adf-a597-64ed98599947&Inline=true

1 IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO: B-05-260-08/2021 BETWEEN ALOWONLE OLUWAJUWON GILBERT - APPELLANT [NO. PASSPORT: B0565543] AND PUBLIC PROSECUTOR - RESPONDENT [In the Matter of the High Court of Malaya at Shah Alam, Selangor Criminal Trial No: BA-45B-7-03/2020 Between Public Prosecutor And Alowonle Oluwajuwon Gilbert] CORAM: VAZEER ALAM MYDIN MEERA, JCA AHMAD ZAIDI IBRAHIM, JCA S.M. KOMATHY SUPPIAH, JCA 22/11/2023 16:44:29 B-05-260-08/2021 Kand. 58 S/N gFYZb5Ir30qll2TtmFmZRw **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 JUDGMENT OF THE COURT INTRODUCTION [1] The accused, a Nigerian national, was charged with the murder of one Siti Kharina binti Kamarudin (“the deceased”) under section 302 of the Penal Code. The Shah Alam High Court found him guilty and convicted him, and sentenced him to death by hanging. He appealed to us against his conviction and sentence. [2] The charge against him reads: “Bahawa kamu pada 9 Mei 2019 jam lebih kurang 12.41 pagi hingga 15 Mei 2019 jam lebih kurang 2.30 petang bertempat di Tower 1, 09- 01, Third Avenue Condominium, Cyberjaya di dalam daerah Sepang dalam negeri Selangor Darul Ehsan, telah melakukan bunuh dengan menyebabkan kematian ke atas Siti Kharina binti Kamarudin (No. K/P: 780919-05-5024). Oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan.” [3] On 9 August 2023, we dismissed the appellant’s appeal against conviction but allowed his appeal on sentence by commuting his death sentence and substituting it with a sentence of imprisonment for 35 years and 12 strokes of the cane. In this judgment, we are only dealing with the issues relevant to the appropriate sentence. S/N gFYZb5Ir30qll2TtmFmZRw **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 Relevant Facts [4] The relevant facts, as found by the trial judge, can be briefly summarised. The deceased was a nurse. At the material time, she was renting an apartment at Third Avenue Condominium in Cyberjaya. Sometime soon after midnight, to be specific, at about 12.37 am on 9 May 2019, she and the appellant got into the lift of the rented apartment to go up to her unit. [5] The appellant was seen leaving the premises around 7.00 am that same morning. The deceased who was supposed to report for work later that evening, did not show up. In fact, no one had seen or heard from her after the 12.37 am on 9 May 2019. [6] Some six days later, on 15 May 2019, the naked body of the deceased was found on the bedroom floor of the apartment by her landlady. The deceased was covered in blood and had 17 injuries, namely bruises, cuts and slash wounds to her chest, neck and head. The appellant was arrested and charged with her murder when her blood was found on the shirt he had worn in the early hours of 9 May 2019. [7] The appellant denied killing her, and his defence at the trial was one of alibi. His defence was rejected and the trial judge convicted and sentenced him to death as at the material time, the death penalty was the only sentence that could be imposed upon a conviction of an offence of murder under section 302 of the Penal Code. S/N gFYZb5Ir30qll2TtmFmZRw **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 Sentence [8] We now give our reasons for commuting the sentence of death imposed on him by the High Court and substituting it with imprisonment for 35 years and 12 strokes of the cane. [9] Until recently, the death sentence was the mandatory punishment prescribed by law for the offence of murder under section 302 of the Penal Code. Thus, there was one sentence only which could be judicially pronounced upon a person convicted of murder, and that was sentence of death. It was the only sentence the court could impose in every conviction of murder, regardless of any mitigating circumstances. The Court was not given any discretion regarding the sentence to be imposed for an offence of murder. [10] However, on 4 July 2023, the mandatory death penalty for murder under section 302 of the Penal Code was amended when the Abolition of Death Penalty Act (Act 846), came into force. The effect of the amendment was to convert the mandatory death penalty into a discretionary death penalty. This means that it is now no longer incumbent on the Court to impose the death penalty to everyone convicted for murder. Not every convicted murderer becomes a candidate for the death sentence. It is easy to discern the reason for this amendment. All killings which satisfy the definition of murder are by no means equally heinous. The factual circumstances surrounding murders differ so greatly from each other that it is wrong that they should all attract the death penalty. S/N gFYZb5Ir30qll2TtmFmZRw **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 [11] Section 302, as amended, is reproduced in its entirety; “Whoever commits murder shall be punished with death or imprisonment for a term of not less than 30 years but not exceeding 40 years and if not sentenced to death, shall also be punished with whipping of not less than 12 strokes.” [12] It is to be noted that when the amendment was debated in parliament, the Deputy Minister of Law had stated; “Dengan pemberian budi bicara kepada mahkamah dalam menjatuhkan hukuman mati, mahkamah boleh mengambil kira prinsip undang-undang yang terpakai dalam memutuskan sama ada hukuman mati perlu dikenakan iaitu antara lain terdapat anggapan yang memihak kepada hak seseorang untuk hidup yang tidak terbatas, dengan izin unqualified right to life. Pertimbangan prinsip seterusnya adalah di mana hukuman mati boleh dikenakan dalam kes-kes yang sesuai dan mahkamah mempunyai peranan untuk menentukan kes-kes yang sesuai tersebut berdasarkan antara lain precedent ataupun dahuluan di dalam kes-kes serupa di negara-negara lain seperti India yang juga telah pun menghapuskan hukuman mati mandatori. Prinsip-prinsip yang harus dipertimbangan termasuk factor-faktor mitigasi dan pemberatan ataupun dengan izin, mitigating and aggravating factors,” [13] We are of the view that the change in law, conferring the Court the discretion to impose either the sentence of death or sentence of S/N gFYZb5Ir30qll2TtmFmZRw **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 imprisonment of not less than 30 years and not more than 40 years is intended to reserve the sentence of death for the more serious and exceptional murders. Unfortunately, there are no explanations or illustrations to s.302 of the Penal Code to indicate the factors which the judge is to take into account in determining whether or not to impose the death penalty. Looking at the provision, we are of the view that the legislative purpose of the amendment is intended to make the sentence of imprisonment of 30 to 40 years the rule for an offence of murder and to limit the sentence of death for the most exceptionally serious, foul, shocking murders that are callous to an almost unbelievable degree. [14] Many countries in the world have abolished the death penalty. In some, like in Malaysia, a judicial discretion to impose the death penalty for an offence of murder has been conferred, reserving its imposition for the most serious cases. India too converted the mandatory death penalty for an offence of murder into a discretionary death penalty several decades ago. Section 302 of the Indian Penal Code reads: “Whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine.” [15] We find support for the view we have expressed (at [12]), in the judgments of the Indian Supreme Court that have interpreted section 302 of the Indian Penal Code. It has been held that the sentence of death is to be imposed only in the rarest of rare cases where reform is not possible - see the decisions of Bachan Singh v. The State of Punjab (1980) 2 SCC 684; S/N gFYZb5Ir30qll2TtmFmZRw **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 1980 Crl LJ 636, Machhi Singh and others vs State of Punjab (1984) 1 MLJ (Crl) 95 and Deepak Rai vs State of Bihar [2013] 4 MLJ (CRL) 171. [16] In Machhi Singh, the Indian Supreme Court laid down five factors to be considered by the court in exercising its discretion to impose the death penalty as punishment for murder, and they are: 1. Manner as to how the murder was committed; 2. The motive for commission of the murder; 3. The nature of the crime; 4. Magnitude of the crime; and 5. The personality of the victim. The Court also referred to its earlier decision in Bachan Singh and held that: “(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability; (ii) Before opting for the death penalty, the circumstances of the offender also require to be taken into consideration along with the circumstances of the crime; (iii) Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided and only provided, the option to impose sentence of imprisonment for S/N gFYZb5Ir30qll2TtmFmZRw **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 life cannot be conscientiously exercised having regards to the nature and circumstances of the crime and all the relevant circumstances; (iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercise.” [17] In Deepak Rai Versus State of Bihar (supra), the Supreme Court observed; The normal rule is that the offence of murder shall be punished with the sentence of life imprisonment. The court can depart from that rule and impose the sentence of death only if there are special reasons for doing so… While considering the question of sentence to be imposed for the offence of murder under Section 302 of the Penal Code, the court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence… on conviction for murder and other capital offences punishable in the alternative with death under the Penal Code, the extreme penalty should be imposed only in extreme cases... the death penalty ought not to be imposed save in the rarest of rare cases when the alternative option S/N gFYZb5Ir30qll2TtmFmZRw **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 is unquestionably foreclosed…This Court has consistently held that only in those exceptional cases where the crime is so brutal, diabolical and revolting so as to shock the collective conscience of the community, would it be appropriate to award death sentence. Since such circumstances cannot be laid down as a straight jacket formula but must be ascertained from case to case, the legislature has left it open for the Courts to examine the facts of the case and appropriately decide upon the sentence proportional to the gravity of the offence.” [18] And closer to home, the Federal Court in Loh Hock Seng v Public Prosecutor [1980] 2 MLJ 13, in relation to the exercise of sentencing discretion where the alternative sentences of death or life imprisonment were available for a conviction for trafficking in dangerous drugs, observed as follows: “Sentencing in a criminal case must of course bear relation to the particular circumstances of the offender as well as the particular circumstances of the offence. The legislature has in its wisdom and in the implementation of its plenary powers in this respect enacted the imposition of the alternative penalties of death or imprisonment for life under section 39B of the Ordinance with the option and discretion in this regard to be no doubt judicially and judiciously exercised according to the facts and circumstances of a particular case, and we can see no reason whatsoever why the statutory enactment of the option for punishment by death cannot and should not be made functionally operative and exercised and applied proprio vigore if the circumstances and facts of the case so warrant, justify, require and perhaps even demand.” S/N gFYZb5Ir30qll2TtmFmZRw **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 [19] It cannot be gainsaid that the determination, as to what would constitute an exceptional murder warranting the death penalty, is a difficult task. In this regard it would be of assistance to examine other Indian cases for some guidance as the type of murder cases that have attracted the death penalty on the basis they have come under the "rarest of rare" category. [20] In Holiram Bordoli v State of Assam (2005) 3 SCC 793, the accused persons were armed with lathis, and various other weapons. They went to the house of the victim and started pelting stones on the bamboo wall of the victim’s house. They then closed the house from the outside and set it on fire. When the son, daughter and the wife of the victim managed to escape, the accused persons caught hold of them and threw them into the fire again. Thereafter the victim’s elder brother who was staying in another house at some distance from the house of the victim was caught and dragged to the courtyard of the accused where the accused cut him into pieces. The evidence showed that the accused was the leader of the gang, and the offence was committed in the most barbaric manner to deter others from challenging the supremacy of the accused in the village. It was held that there was absence of any strong motive and the Supreme Court held that the trial court was justified in imposing death sentence as the victims had not provoked or contributed to the incident. It was further held the sentence of death was the most appropriate punishment, there being aggravating circumstances and no mitigating circumstance. [21] In the case of Suresh v State of Uttar Pradesh AIR 2001 SC 1344, the accused murdered his brother and the latter’s family members including minor children at night when they were fast asleep with an axe and chopper S/N gFYZb5Ir30qll2TtmFmZRw **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 by cutting their skulls and necks for a piece of land. It was held that the murder of the innocent victims was a grotesque and diabolical act, where any other punishment than the death penalty was unjustified. [22] In Molai v State of Madhya Pradesh AIR 2000 SC 177 the jail officer sent a guard and a prisoner to work in his house. The 16-year-old daughter of the said officer was at that time alone in the quarters and was preparing for her class examination. The guard and the prisoner raped her, strangulated her and stabbed her. Thereafter, they threw her dead body into a septic tank to hide their crime. The court held that death was a fit punishment for the brutal murder of a young person. [23] In Ramdeo Chauhan v. State of Assam, AIR 2000 SC 2679: (2000) 7 SCC 455, in order to commit theft, the accused killed four occupants of a house including two helpless women and a child aged 2 years whilst they were asleep. The accused also attacked another occupant of the house, an old woman, and a neighbour with a spade when they entered the house. The Court held that the young age (22 years) of the accused at the time of committing the crime was not a mitigating circumstance, and death penalty was a just and proper punishment. [24] In Ravji v. State of Rajasthan, AIR 1996 SC 787: (1996) 2 SCC 175: LNIND 1995 SC 1247, the accused killed his wife and three minor children while they were asleep. When his mother intervened, he injured her with an axe with the intention of killing her. He then proceeded to the neighbour’ s house and attempted to kill his neighbour’s wife who was also S/N gFYZb5Ir30qll2TtmFmZRw **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 asleep. When his neighbour intervened, he killed him too and fled from the scene. The court held that the death sentence was the appropriate punishment as the accused had a solemn duty to protect his family members but he betrayed the trust reposed in him in a very cruel and calculated manner without any provocation whatsoever. [25] In Deepak Rai Versus State of Bihar ([14] supra), the accused murdered the complainant’s wife and 5 children when the latter refused to withdraw a report he had lodged against the former. He killed them by setting fire to their house. The Court stated that the death sentence imposed on the accused was justified as he had killed the young, innocent children and wife of the complainant by burning them alive simply because the complainant had refused to withdraw the report. [26] It can be gleaned from the cases discussed in the preceding paragraphs that the sentence of death has been imposed where the murders committed were extremely savage, heinous, diabolical, gruesome, cruel, horrendous or brutal and which shocks not only the judicial conscience but even the collective conscience of the society. As a broad guideline, it is our view, that the death penalty would be justified in dealing with, among others, hired and serial killers, those who rape and kill their victims for purposes of sexual gratification, dismember the bodies of their victims, dangerous criminals who use firearms, and those who plan a murder and execute it in a cold-blooded manner. [27] Having considered what kind of murder cases that deserve the death sentence, we now revert to the factual position in this case. The S/N gFYZb5Ir30qll2TtmFmZRw **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 question arises whether any of the factors in the present case warrant the Court affirming the imposition of the death penalty. In mitigation, the appellant urged the Court to set aside the death sentence and impose imprisonment he was 40 years of age now, this was his first offence, and that he be given a chance to reform. According to the appellant, he and the deceased were in a relationship and were planning to get married and start a business in Nigeria. He had no intention to kill her. [28] On the other hand, the learned deputy contended that the murder committed by the appellant was a brutal one as the deceased had 17 injuries on her body and had died from the slash wound to the neck. She therefore urged the court to maintain the death sentence. [29] The burden is upon the prosecution to make out a case for imposition of the death penalty. It is trite that in determining the nature of the sentence, the court must balance the aggravating and mitigating factors of the case. The examples of factors which are relevant to aggravation are premeditation and planning, the use of prolonged or savage violence, and the use of a firearm. Other examples would include where the murderer has sought to evade detection by disposing, concealing or dismembering the body of his victim and killing the victim for money. [30] Mitigating factors that may be relevant to the offence of murder include-an intention to cause serious bodily harm rather than to kill, lack of premeditation, evidence that the murderer suffered from mental disorder or mental disability, the fact that the murderer was provoked and murders S/N gFYZb5Ir30qll2TtmFmZRw **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 arising from sudden quarrels within a family, or between neighbours, or in the heat of passion. [31] In the instant case, there was no evidence that the appellant had pre- planned to attack the deceased or had any motive to kill her. The couple had come back to the apartment just after midnight. In fact, the cctv footage of them getting into the lift showed that all appeared to be well and normal between them. They were standing close to each other. The circumstances preceding the killing, suggests that a sudden misunderstanding occurred between them sometime in the early hours of 9 May 2019, which resulted in her being killed. In fact, blood stains carrying the appellant’s DNA profile was found together with the deceased’s blood at the scene of the incident, suggesting that there was a fight/ quarrel between them. This would negate any suggestion that it was a cold blooded premeditated murder by the appellant. It is true that the deceased was killed in a brutal manner. The brutality of the manner in which the deceased was killed is a relevant consideration but not the sole criterion for deciding whether the death sentence is warranted. [32] On these facts, and keeping in mind that the judicial discretion to impose the death penalty has been conferred, reserving its imposition for the most heinous and most exceptional cases, we are of the view that the circumstances of the present case, does not warrant the imposition of the death penalty. It is true that an innocent victim has lost her life, but if the legislative purpose of section 302 is ignored and the death sentence is continued to be imposed on every person convicted of murder, it would render the change in law redundant. S/N gFYZb5Ir30qll2TtmFmZRw **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 CONCLUSION [33] Taking into account that the killing of the deceased was not pre planned, as well as the fact that the appellant was a first time offender and that the prosecution had not produced any evidence to show that he was a hardcore criminal incapable of reform and rehabilitation and was a continuing threat to the society, it was our view, that a sentence of imprisonment of 35 years together with 12 strokes of the cane would be appropriate. Dated: 22 November 2023 -sgd- (S.M. KOMATHY SUPPIAH) Judge Court of Appeal Malaysia Putrajaya S/N gFYZb5Ir30qll2TtmFmZRw **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 Counsel/ Solicitors For the Appellant: Afifuddin Ahmad Hafifi [Messrs Salehuddin Saidin & Associate] For the Respondent: Sarulatha A/P Paramavathar Eyu Ghim Siang (with her) Deputy Public Prosecutor (Attorney General’s Chambers) S/N gFYZb5Ir30qll2TtmFmZRw **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

BA-B52NCvC-141-06/2020

PLAINTIF EU HOLIDAYS PTE. LTD. DEFENDAN FLEXIROAM SDN. BHD.

Sama ada Mahkamah di Malaysia mempunyai bidang kuasa untuk melupuskan kes ini memandangkan kesemua perjanjian adalah ditandatangani di Singapura - Sama ada Plaintif telah membuktikan tuntutan atas imbangan kebarangkalian bahawa pihak Defendan telah memungkiri perjanjian dengan gagal mendapatkan Lesen Pengendali Berasaskan Perkhidmatan (SBO) (Individu) daripada Lembaga Pembangunan Infocomm Singapura (IDA Singapura) bagi pemasaran dan penyebaran produk-produk dan perkhidmatan FLEXIROAM di SIngapura - Sama ada surat daripada IDA Singapura hanyalah merupakan suatu permohonan untuk memberikan maklumat berkenaan dengan kesemua perjanjian yang termeterai dan bukannya suatu arahan untuk membatalkan keesahaan kesemua perjanjian antara pihak Plaintif dan Defendan kerana berlanggaran dengan peruntukan Akta Komunikasi (Cap 323). Sama ada prinsip doctrine of frustration dan doctrine of illegality terpakai dalam kes ini.

22/11/2023

Puan Rafiqha Hanim binti Mohd Rosli

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=5d8d42e7-3948-4b83-b4cf-3200e076d2a4&Inline=true

22/11/2023 12:22:18 BA-B52NCvC-141-06/2020 Kand. 71 S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify 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the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N 50KNXUg5g0u0zzIA4HbSpA **Note : Serial number will be used to verify 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Tika 2.6.0

DD-83D-304-06/2020

PENDAKWA RAYA Pendakwa Raya [Pendakwa Raya] TERTUDUH Muhammad Faris Bin Amran

Seksyen 39A(1) Akta Dadah Berbahaya 1952 - Keputusan Kes di Akhir Kes Pembelaan - OKT didapati bersalah dan disabitkan - Hukuman Penjara 24 bulan dari tarikh sabitan dan 3 sebatan - hukuman minimum dijatuhkan - penggantungan pelaksanaan hukuman dibenarkan - isu cap jari pada barang kes - isu ujian air kencing negatif - isu tangkapan yang ramai - isu niat polis untuk menjenayahkan OKT - isu penama lain yang ditangkap bersama - isu siasatan tidak lengkap - isu siasatan telefon bimbit - isu inferens memihak kepada OKT - isu hukuman minimum dijatuhkan walaupun selepas bicara penuh - isu penggantungan pelaksanaan hukuman

22/11/2023

Tuan Mohd Fauzan Bin Mohd Suhairi

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=07cb92ef-5183-4a09-b737-5378037359cf&Inline=true

1 DALAM MAHKAMAH MAJISTRET DI BACHOK DALAM NEGERI KELANTAN DARUL NAIM KES TANGKAP (DADAH) NO.: DD-83D-304-06/2020 ANTARA PENDAKWA RAYA LAWAN MUHAMMAD FARIS BIN AMRAN (NO. K/P: 930815-03-5441) CORAM MOHD FAUZAN BIN MOHD SUHAIRI, MAJISTRET ALASAN PENGHAKIMAN PENDAHULUAN [1] Muhammad Faris Bin Amran yang merupakan Orang Kena Tuduh (OKT) dalam kes ini telah dipertuduhkan dengan dua (2) pertuduhan, iaitu pertuduhan pertama di bawah Seksyen 12(2) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 12(3) Akta yang sama, dan pertuduhan kedua di bawah Seksyen 12(2) Akta yang sama yang boleh dihukum di bawah Seksyen 39A(1) Akta yang sama. Pada 18 22/11/2023 02:15:36 DD-83D-304-06/2020 Kand. 25 S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Ogos 2020, OKT telah membuat pengakuan bersalah ke atas pertuduhan kedua, dan Mahkamah ini telah menjatuhkan hukuman denda sebanyak RM 4000.00, jika gagal bayar, sembilan (9) bulan penjara ke atas OKT. Manakala bagi pertuduhan pertama, OKT telah membuat pengakuan tidak bersalah dan minta dibicarakan. [2] Pada 21 September 2023, setelah Mahkamah ini mendapati OKT gagal menimbulkan keraguan munasabah kepada kes pihak Pendakwaan, Mahkamah ini telah membuat dapatan bersalah ke atas OKT dan seterusnya mensabitkan OKT sebagaimana pertuduhan pertama. Mahkamah ini telah menjatuhkan hukuman penjara selama dua puluh empat (24) bulan dari tarikh sabitan dan tiga (3) sebatan ke atas OKT. [3] Terkilan dengan keputusan tersebut, Peguam Bela OKT telah memfailkan rayuan ke Mahkamah Tinggi Kota Bharu pada 24 September 2023 ke atas keseluruhan keputusan sabitan dan hukuman yang dijatuhkan oleh Mahkamah ini. Pada 4 Oktober 2023, pihak Pendakwaan juga telah memfailkan rayuan silang ke atas keputusan Mahkamah ini berkenaan hukuman yang dijatuhkan. [4] Justeru, ini adalah alasan penghakiman Mahkamah ini. PERTUDUHAN PERTAMA Bahawa kamu pada 10.01.2020 jam lebih kurang 11.00 pagi bertempat di kawasan semak Ladang Merdeka Jelawat, dalam jajahan Bachok di dalam negeri Kelantan telah didapati dalam milikan kamu dadah berbahaya jenis heroin dengan seberat 2.66 gram. Oleh yang demikian kamu telah melakukan kesalahan di bawah Seksyen 12(2) Akta Dadah Berbahaya (ADB) 1952 yang boleh dihukum dibawah Seksyen 39A(1) Akta yang sama. Peruntukan hukuman di bawah Seksyen 39A(1) ADB 1952 : Jika disabitkan hendaklah dihukum dengan penjara untuk satu tempoh tidak kurang daripada dua tahun tetapi tidak lebih daripada lima tahun dan ia juga akan dikenakan S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 hukuman sebat tidak kurang daripada tiga sebatan tetapi tidak lebih daripada sembilan sebatan. FAKTA KES Kes Pendakwaan [5] Pada 10.01.2020, Saksi Pendakwaan ke-3 (SP3) iaitu Insp. Mohd Sahizal bin Ahmad Zaki, yang merupakan pegawai serbuan dalam kes ini, bersama dua (2) orang anggota polis (anggota serbuan) telah melakukan satu (1) tangkapan ke atas satu (1) lelaki Melayu iaitu OKT di kawasan semak di Ladang Merdeka Jelawat, Bachok, Kelantan. [6] Sebelum tangkapan dibuat, SP3 telah menghampiri OKT dan memperkenalkan diri. Setelah memperkenalkan diri, OKT telah melarikan diri dengan jarak 10-15 meter. OKT telah berjaya ditangkap setelah berlaku pergelutan yang menyebabkan OKT mengalami kecederaan. [7] Seterusnya, SP3 telah melakukan pemeriksaan fizikal terhadap OKT sambil dijaga rapi oleh anggota serbuan dan telah menjumpai tiga (3) botol plastik berpenutup warna kuning, setiap satu botol berisi serbuk berwarna putih yang disyaki dadah jenis heroin iaitu eksibit P5A-C dan satu (1) botol plastik berpenutup warna kuning (eksibit P21) yang mengandungi satu (1) paket plastik berangkai dua (eksibit P8). Rangkai pertama berisi sepuluh (10) biji pil berwarna merah bertulisan ‘WY’, dan pada rangkai kedua berisi lapan (8) biji pil berwarna merah bertulisan ‘WY’ yang kesemuanya disyaki dadah. Kesemua barang kes tersebut dijumpai di dalam poket seluar hadapan sebelah kanan yang dipakai OKT ketika tangkapan dilakukan. [8] Setelah tangkapan dan rampasan dibuat, SP3 telah membawa OKT balik ke Ibu Pejabat Polis Daerah (IPD) Bachok dan telah menyediakan satu (1) Borang Bongkar (eksibit P22) yang ditandatangani oleh OKT dan SP3. Turut dirampas oleh SP3 ialah S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 seluar yang dipakai OKT ketika tangkapan dilakukan (eksibit P19). Seterusnya, SP3 telah membuat laporan polis (eksibit P15) dan menyerahkan OKT bersama barang kes kepada SP4 iaitu Insp. Raflee bin Serbi selaku pegawai penyiasat dan turut menandatangani Borang Serah Menyerah (eksibit P23). SP4 yang telah menerima OKT dan barang- barang kes telah meletakkan barang kes ke dalam almari berkunci yang hanya boleh diakses oleh SP4 sahaja. [9] Pada 11.01.2020, SP4 telah mengarahkan SP5 iaitu L/Kpl. Muhammad Adam bin Zabidi yang merupakan jurufoto, untuk mengambil gambar barang kes (eksibit P12A-C), gambar acu pakai (eksibit P17), dan gambar seluar yang dipakai OKT (eksibit P18A-B). SP4 juga telah mengarahkan SP5 untuk membuat ujian penimbulan cap jari pada barang kes yang dirampas, namun, hasil ujian adalah negatif. SP5 juga turut mengambil gambar ujian penimbulan cap jari tersebut (eksibit P25). Selepas itu, SP4 telah memasukkan barang kes ke dalam sampul surat bertanda RAF-1 dan RAF-2 (ditandakan masing- masing sebagai eksibit P1 dan eksibit P2). Pada tarikh yang sama juga, SP5 bersama SP3 dan SP4 telah pergi ke tempat kejadian dan mengambil gambar tempat kejadian (eksibit P16A-B). [10] Pada 12.01.2020, SP4 telah menghantar eksibit P1 dan eksibit P2 kepada SP2 iaitu Sjn. Wan Kamarul bin Wan Awang, penjaga stor barang kes di IPD Bachok, untuk disimpan di dalam stor barang kes di IPD Bachok. Kemudian, pada tarikh yang sama, eksibit P1 dan eksibit P2 telah dikeluarkan semula dari stor barang kes IPD Bachok dan telah dihantar ke Jabatan Kimia Malaysia untuk dianalisis. Satu (1) resit kimia (eksibit P4) telah dikeluarkan oleh Jabatan Kimia Malaysia sebagai tanda penerimaan barang kes. [11] Pada 05.03.2020, SP4 telah menerima laporan kimia (eksibit P11) yang disediakan oleh SP1 iaitu Norhayatil Akmal binti Mat Yusof yang merupakan ahli kimia, bersama eksibit P1 dan eksibit P2. Dalam eksibit P11, ianya telah disahkan bahawa serbuk putih yang terdapat di dalam eksibit P5A-C mengandungi 2.66 gram dadah berbahaya jenis heroin. Baki analisis (eksibit P7) telah dimasukkan ke dalam eksibit P6. Manakala, pil-pil berwarna merah yang terdapat di dalam eksibit P8 telah disahkan S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 mengandungi 0.20 gram dadah berbahaya jenis methamphetamine. Baki analisis (eksibit P10) telah dimasukkan ke dalam eksibit P9. Kemudian, SP4 telah mengembalikan eksibit P1 dan eksibit P2 kepada SP2 untuk disimpan semula di dalam stor barang kes di IPD Bachok. Kes Pembelaan [12] Bagi kes Pembelaan, hanya seorang sahaja saksi dipanggil memberikan keterangan di pihak Pembelaan iaitu OKT sendiri (SD1). SD1/OKT telah memberi keterangan bersumpah di dalam kandang saksi. [13] Secara ringkasnya, keterangan OKT menyatakan bahawa OKT telah pergi ke tempat kejadian atas permintaan seorang kenalan yang bernama panggilan ‘Che Wen’. OKT telah dihubungi oleh Che Wen pada 10.01.2020 lebih kurang jam 10.00 pagi, meminta OKT untuk menghantar eksibit P21 kepada beliau di Ladang Merdeka, Jelawat. Transaksi komunikasi bagi mengesahkan perkara ini boleh dilihat dalam telefon bimbit OKT. [14] OKT menyatakan hanya memiliki satu (1) botol plastik (eksibit P21) sahaja di dalam poket seluar kanan bahagian hadapan yang dipakai OKT ketika hari kejadian. OKT menyatakan eksibit P5(A-C) tidak berada di dalam poket seluar OKT sebaliknya menyatakan bahawa eksibit P5(A-C) adalah milik individu-individu lain yang ditangkap pada hari dan masa yang sama. Kesemua tangkapan ini dikumpulkan di satu tempat yang sama. Barang salah eksibit P5(A-C) hanya diketahui oleh OKT selepas OKT ditangkap. OKT menafikan sepenuhnya mempunyai kawalan dan pengetahuan berkenaan kewujudan eksibit P5(A-C) yang menjadi intipati pertuduhan pertama tersebut. Kes Pendakwaan A. Beban Pembuktian Pendakwaan S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 [15] Beban pembuktian di akhir kes Pendakwaan adalah beban prima facie dan rujukan di bawah Seksyen 173(f) Kanun Tatacara Jenayah adalah terpakai. [16] Mahkamah ini merujuk kepada kes Mahkamah Persekutuan, PP V Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457 pada muka surat 467, yang telah menjelaskan prinsip pertimbangan ‘maximum evaluation’ dalam memutuskan suatu kes prima facie. Mahkamah Persekutuan turut menggariskan langkah sewajarnya yang perlu diambil oleh Mahkamah bicara di akhir kes Pendakwaan sebagaimana berikut: “After the amendments to ss. 173(f) and 180 of the CPC, the statutory test has been altered. What is required of a subordinate court and the High Court under the amended section is to call for the defence when it is satisfied that a prima facie case has been made out at the close of the prosecution case. This requires the court to undertake a maximum evaluation of the prosecution evidence when deciding whether to call on the accused to enter upon his or her defence. It involves an assessment of the credibility of the witnesses called by the prosecution and the drawing of inferences admitted by the prosecution evidence. Thus, if the prosecution’s evidence admits of two or more inferences, one of which is in the accused’s favour, then it is the duty of the court to draw the inference that is favourable to the accused.” [17] Mahkamah Persekutuan dalam kes yang sama juga telah menyatakan dengan lanjut bagaimana kes prima facie dapat dibuktikan atau sebaliknya seperti berikut: “Ask yourself the question: if I now call upon the accused to make his defence and he elects to remain silent, am I prepared to convict him on the evidence now before me? If the answer to that question is ‘Yes’, then a prima facie case has been made out and the defence should be called. If the answer is ‘No’ then, prima facie case has not been made out and the accused should be acquitted.” S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 B. Elemen-Elemen Pertuduhan [18] Seksyen 12(2) ADB 1952 memperuntukkan kesalahan memiliki dadah seperti berikut: “(2) No person shall have in his possession, custody or control any dangerous drug to which this Part applies unless he is authorized to be in possession, custody or control of such drug or is deemed to be so authorized under this Act or the regulations made thereunder.” [19] Berdasarkan peruntukan di atas, elemen-elemen yang perlu dibuktikan oleh pihak Pendakwaan adalah seperti berikut: • i) OKT mempunyai ‘milikan’ terhadap dadah berbahaya sepertimana yang dipertuduhkan; • ii) Dadah yang dimiliki mestilah terkandung dan disenaraikan dalam ADB 1952; dan • iii) OKT tiada kebenaran untuk memiliki dadah tersebut. [20] Bagi pembuktian milikan dadah, Mahkamah ini merujuk kepada kes PP v Muhammad Nasir Bin Shahrudin [1994] 2 MLJ 576 yang memutuskan bahawa: “Possession is not defined in the DDA. However, it is now firmly established that to constitute possession, it is necessary to establish that: (a) the person had knowledge of the drugs; and (b) that the person had some form of control or custody of the drugs. To prove either of these two requirements, the prosecution may either adduce direct evidence or it may rely on the relevant presumptions under s 37 of the DDA.” [21] Berdasarkan nas di atas, pihak Pendakwaan perlu membuktikan elemen-elemen berikut bagi membuktikan milikan dadah: • a) OKT mempunyai jagaan dan kawalan ke atas dadah tersebut; dan • b) OKT mempunyai pengetahuan mengenai kewujudan dadah tersebut. S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 [22] Rujukan turut dibuat kepada kes Chan Pean Leon v PP [1956] 1 MLJ 237 yang menjelaskan seperti berikut: “...there is a physical element and a mental element which must both be present before possession is made out. The accused must not only be so situated that he can deal with the thing as if it belonged to him, for example have it in his pocket or have it lying in front of him on a table. It must also be shown that he had the intention of dealing with it as if it belonged to him should he see any occasion to do so, in other words, that he had some animus possidendi. Intention is a matter of fact which in the nature of things cannot be proved by direct evidence. It can only be proved by inference from the surrounding circumstances. Whether these surrounding circumstances make out such intention is a question of fact in each individual case. ...There may be something in the accused’s behaviour that shows knowledge, or the nature of the thing may be so obvious that it is possible to say “he must have known 11 what it was”, or, again in cases under the Dangerous Drugs Ordinance, there may be a statutory presumption which fills in the gap in the evidence.” i) Sama ada OKT mempunyai jagaan dan kawalan ke atas dadah tersebut [23] Berdasarkan keterangan yang dikemukakan oleh saksi-saksi pihak Pendakwaan, Mahkamah ini berpuas hati bahawa OKT mempunyai jagaan dan kawalan ke atas barang kes dadah tersebut. [24] Mahkamah ini mendapati bahawa walaupun serbuan dijalankan oleh pihak polis adalah bersifat berskala besar dalam sekitar kawasan Ladang Merdeka tersebut yang melibatkan banyak tangkapan pada masa yang sama, sebagaimana yang telah dijelaskan oleh saksi-saksi pihak Pendakwaan terutamanya pegawai serbuan, hanya OKT seorang sahaja yang ditangkap di tempat kejadian dan pada masa kejadian. Setelah S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 berlaku pergelutan, pemeriksaan fizikal yang dijalankan telah menemukan barang kes dadah dijumpai di dalam poket seluar kanan hadapan yang sedang dipakai oleh OKT. [25] Barang kes dadah yang dijumpai di dalam poket seluar kanan hadapan yang dipakai OKT jelas menunjukkan OKT mempunyai kawalan dan jagaan serta berkuasa penuh untuk menguruskan barang kes dadah tersebut. Rujukan dibuat kepada kes Khalid Mehmood v Pendakwa Raya (2019) MLJU 1185, Mahkamah Rayuan menyatakan seperti berikut: “This attempt to conceal by tying the drugs to the waist under the shirts by the appellants, strongly point to the knowledge on the part of the appellants. From these evidences the finding was that the appellants had exclusive custody and control of the drugs at the material time”. Manakala dalam kes Roslan Bin Sabu v Public Prosecutor (2006) 5 MLJ 244, Mahkamah Rayuan memutuskan bahawa: “The appellant knew he was carrying in the two plastic bags were illicit. The appellant could not have missed the glaring sight of the drugs since the plastic used to wrap them were transparent, and so were the two carrier bags. The appellant must have seen what he was carrying and this would be sufficient to satisfy the mens rea element of the appellant on possession.” Dalam kes PP v Hong Ho Aik (2008) 7 MLJ 589, Mahkamah Tinggi menyatakan seperti berikut: “… the learned defence counsel, in his submission admitted that the elements of physical custody and/or control had been proven as the drugs were found in the pocket of the accused. The Court was satisfied that the elements of physical custody and control had S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 successfully been proven by the prosecution and accordingly found that the accused had physical possession over the drugs.” [26] Pihak Pembelaan cuba untuk menggoyahkan keterangan saksi-saksi Pendakwaan dengan menyatakan bahawa dadah yang dijumpai bukanlah milik OKT sebaliknya milik tangkapan lain yang telah ditangkap di kawasan sama pada tarikh dan masa yang sama. Hal ini demikian kerana kesemua tangkapan telah dikumpulkan bersama sebelum dibawa menaiki van ke balai polis. Dadah yang dirampas juga adalah banyak dan berlainan jenis. Justeru, Peguam Bela menyatakan bahawa pihak Pendakwaan perlu mengenepikan pemilikan pihak lain selain OKT terhadap barang kes dadah tersebut. Turut dihujahkan bahawa tiada cap jari OKT ditemui pada barang kes dan ujian air kencing OKT adalah negatif. [27] Bagi isu ini, Mahkamah ini menerima sepenuhnya keterangan saksi-saksi pihak Pendakwaan bahawa tidak timbul isu percampuran barang kes walaupun tangkapan yang ramai telah dibuat pada tarikh, masa dan kawasan yang sama. Perkara ini telah dijelaskan secara terperinci oleh saksi-saksi pihak Pendakwaan bahawa tangkapan ke atas OKT adalah di satu kawasan semak yang agak jauh daripada tangkapan-tangkapan lain. Keterangan saksi-saksi pihak Pendakwaan adalah konsisten antara satu sama lain. Untuk isu cap jari, Mahkamah ini merujuk kepada nas undang-undang yang akan digariskan dalam perenggan berikut bahawa tiada keperluan untuk membuat ujian cap jari dalam siasatan pihak polis mengambil kira situasi keadaan kes ini. Hujahan pihak Pembelaan berkenaan ujian air kencing OKT yang didapati negatif adalah tidak relevan dan bukanlah satu indikator dalam pertuduhan pemilikan dadah. Seseorang yang memiliki dalam jagaan atau kawalannya barang kes dadah tidak semestinya seharusnya didapati positif ujian pengesanan dadah dalam air kencing. [28] Pada peringkat ini, Mahkamah ini mendapati cadangan Peguam Bela tidak mampu mencabar dapatan mengenai milikan OKT terhadap barang kes. Hal ini kerana versi Pembelaan ini adalah tidak dipersetujui oleh saksi-saksi pihak Pendakwaan iaitu SP3 S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 dan SP4. Mahkamah ini merujuk kepada kes PP v Chia Leong Foo [2000] 6 MLJ 705. Hakim Augustine Paul (pada ketika itu) menjelaskan: “As I explained in PP v Dato’ Seri Anwar bin Ibrahim (No 3) [1999] 2 MLJ 1 at p 121: A suggestion in cross-examination can only be indicative of the case put forward or the stand taken by the party on whose behalf the cross-examination is being conducted, but to no extent whatsoever can it be a substitute for evidence if it is clearly repudiated by the witness to whom it is made. In this regard it was observed in Emperor v Karimuddi Sheikh AIR 1932 Cal 373: ‘mere suggestions by a pleader or advocate for the accused do not amount to evidence by the fact suggested, unless they are either partly or wholly accepted of the witness for the prosecution.” [29] Berpandukan nas ini, Mahkamah ini mendapati bahawa pihak Pembelaan hanya meletakkan cadangan kepada saksi-saksi pihak Pendakwaan. Versi Pembelaan ini membantu untuk menentukan dapatan fakta yang dikemukakan oleh pihak Pendakwaan. Semua saksi Pendakwaan tidak bersetuju dengan cadangan Peguam Bela yang mana tidak meruntuhkan fakta bahawa barang kes dijumpai di dalam poket seluar hadapan kanan yang dipakai oleh OKT. ii) Sama ada OKT mempunyai pengetahuan mengenai kewujudan dadah tersebut [30] Secara lazimnya, elemen pengetahuan berkenaan kewujudan dadah dapat disimpulkan daripada inferens sesuatu fakta yang dikemukakan. Dalam kes PP v Chia Leong Foo (supra), Mahkamah menyatakan seperti berikut: “Here again knowledge cannot be proved by direct evidence, it can only be proved by inference from the surrounding circumstances. Again, the possible variety of circumstances which will support such an inference is infinite. There may be something in the accused’s behaviour that shows knowledge, or the nature of the thing may be so S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 obvious that it is possible to say ‘he must have known what it was’ or, again in cases under the Dangerous Drugs Ordinance, there may be a statutory presumption which fills a gap in the evidence.” Dalam kes Parlan Bin Dadeh v PP (2008) 6 MLJ, Mahkamah Persekutuan menyatakan seperti berikut: “Proof of knowledge is very often a matter of inference which varies from case to case. It would be sufficient for the prosecution to prove facts from which it could properly be inferred that the accused had the necessary knowledge.” [31] Mahkamah ini berpuas hati bahawa OKT turut mempunyai pengetahuan terhadap barang kes yang dijumpai dalam milikan fizikal OKT. [32] Banyak fakta yang dapat dilihat secara jelas menunjukkan OKT mempunyai pengetahuan terhadap kandungan barang kes tersebut. Tempat barang kes dijumpai, keadaan tempat OKT ditangkap yang sunyi tanpa individu lain dan kawasan OKT ditahan yang terang adalah antara fakta yang dipertimbangkan oleh Mahkamah ini. Tindak tanduk OKT yang bergelut dengan pihak polis dan cuba melarikan diri setelah SP3 memperkenalkan diri juga memberikan inferens kuat bahawa OKT mengetahui bahawa OKT sedang mempunyai dalam milikannya barang yang salah. Mahkamah ini bergantung kepada ‘conduct’ OKT yang relevan dalam membawa inferens pengetahuan tentang pemilikan barang kes dadah tersebut. Seterusnya keterangan senyap yang lain seperti botol plastik barang kes adalah lut sinar dan OKT secara jelas boleh melihat kandungan barang kes tesebut. Fakta kes Pendakwaan juga menunjukkan hanya barang kes yang dijumpai pada fizikal OKT sendiri. Perlu ditegaskan juga, berdasarkan keterangan di Mahkamah, tiada barang peribadi lain yang dijumpai pada OKT kecuali barang kes dadah dan seluar yang dipakai OKT. Inferens dapat dibuat berdasarkan keseluruhan fakta ini bahawa OKT mempunyai pengetahuan ke atas barang kes di dalam poket seluarnya. S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 [33] Berdasarkan keseluruhan fakta ini, Mahkamah ini bergantung kepada prinsip bahawa keadaan sekeliling dan tindak tanduk OKT yang membawa kepada inferens bahawa sememangnya OKT mempunyai pengetahuan tentang kewujudan barang kes dadah tersebut. [34] Dalam kes Public Posecutor v. Ouseng Sama-Ae (2008) 1 CLJ 337, Mahkamah Rayuan telah memberikan pandangan seperti berikut: “………Now, add to all this the demeanour of the accused when confronted by PW3. As we have already said, he began shivering and urinated in his trousers. These are sure signs of fear. If taken alone they may be equiviocal in terms of evidentiary value. But there is the other evidence to which we have already adverted. And when taken together, the conduct of the accused on being confronted lends strength to the prima facie inference that he had mens rea possession of the prescribed drug. We may add that evidence of the Accused ‘s such conduct is plainly admissible by virtue of section 8 of the Evidence Act 1950………….” iii) Dadah tersebut adalah jenis dadah berbahaya seperti yang disenaraikan dalam Jadual Pertama, Akta Dadah Berbahaya 1952 dan OKT tiada kebenaran untuk memiliki dadah tersebut [35] Mahkamah Agong dalam kes Munusamy v PP [1987] 1 MLJ 492, telah memutuskan seperti berikut: “As a rule, a chemist in drug cases does not give any opinion as to ownership, control or possession of the substance sent for analysis, but he merely reports the result of the chemical examination of the substance. The only reason for sending the exhibits to the chemist is to determine their identity and to confirm what other witnesses have suspected. ….… We are therefore of the view, that is this type of cases where the opinion of the chemist is confined only to the elementary nature and identity of substance, the court is S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 entitled to accept the opinion of the expert on its face value, unless it is inherently incredible or the defence calls evidence in rebuttal by another expert to contradict the opinion. So long as some credible evidence is given by the chemist to support his opinion, there is no necessity for him to go into details of what he did in the laboratory, step by step…”. [36] Pihak Pembelaan dalam kes ini tidak mencabar dapatan laporan kimia (eksibit P11) dan tidak berhasrat untuk memanggil ahli kimia untuk disoal balas. Berdasarkan eksibit P11, ianya telah mengesahkan bahawa barang kes P5(A-C) tersebut mengandungi 2.66 gram dadah berbahaya jenis heroin, manakala eksibit P8 mengandungi 0.20 gram dadah berbahaya jenis methamphetamine (pertuduhan kedua yang telah dijatuhkan hukuman). Kedua-dua dadah ini juga disahkan merupakan dadah berbahaya di bawah Jadual Pertama, ADB 1952. [37] Mahkamah juga berpuas hati bahawa OKT bukanlah orang yang diberi kuasa untuk memiliki barang kes tersebut sebagaimana di bawah peruntukan undang-undang. Selain itu, berat bersih dadah dalam pertuduhan ini juga melebihi 2.00 gram yang mana hukuman adalah termaktub di bawah Seksyen 39A(1) ADB 1952. C. Isu-Isu yang Dibangkitkan KES PEMBELAAN A. Beban pembuktian [38] Merujuk kepada Seksyen 172(m) Kanun Tatacara Jenayah, berkait standard pembuktian yang diperlukan di akhir perbicaraan kes jenayah, Mahkamah perlu menilai keseluruhan keterangan dan membuat dapatan bahawa pihak Pendakwaan telah membuktikan kes melampaui keraguan munasabah iaitu ‘beyond reasonable doubt’. S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 [39] Mahkamah ini sedia maklum bahawa beban pembuktian adalah pada pundak pihak Pendakwaan pada setiap masa sepanjang perbicaraan kes. Pihak Pendakwaan perlu membuktikan kes melampaui keraguan yang munasabah. (Mohamad Radhi Bin Yaakob v PP [1991] 3 MLJ 169). [40] Tugas pihak Pembelaan adalah untuk hanya menimbulkan keraguan yang munasabah sahaja. (Balachandran v PP [2005] 2 MLJ 30). Manakala berkenaan definisi keraguan munasabah, perkara ini telah dihuraikan sebagaimana dalam kes PP v Saimin & Ors [1971] 2 MLJ 16. B. Versi Pembelaan [41] Fakta kes pembelaan telah diletakkan bermula pada saksi-saksi pendakwaan diperiksa balas. Peguam Bela telah menegaskan bahawa OKT telah pergi ke tempat kejadian atas permintaan kenalan OKT yang dikenali sebagai Che Wen. Che Wen telah menghubungi OKT melalui telefon meminta OKT untuk pergi ke tempat kejadian bagi menyerahkan barang kepunyaan Che Wen. [42] Berkenaan barang kes pula, OKT menafikan bahawa barang kes yang menjadi intipati dalam pertuduhan pertama iaitu eksibit P5(A-C) berada di dalam poket seluar kanan hadapan yang dipakai OKT. Sebaliknya, OKT menyatakan bahawa hanya barang kes yang menjadi intipati pertuduhan kedua sahaja iaitu eksibit P21 yang berada di dalam poket seluar kanan hadapan OKT (OKT telah mengaku bersalah bagi pertuduhan kedua ini). Telah dinyatakan juga bahawa P5(A-C) merupakan barang kes milik individu- induvidu lain yang ditangkap kerana tangkapan pada masa tersebut adalah melibatkan ramai OKT pada masa dan tempat dan di kawasan yang sama yang juga melibatkan pelbagai jenis rampasan barang kes dadah. Kesemua tangkapan telah dikumpulkan di satu tempat sebelum dibawa bersama ke balai polis. S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 ISU-ISU YANG DIHUJAHKAN OLEH PIHAK PEMBELAAN [43] Isu utama yang dihujahkan oleh pihak Pembelaan ialah pemilikan barang kes disanggah oleh OKT. OKT telah dihubungi oleh Che Wen pada 10.01.2020 lebih kurang jam 10.00 pagi, meminta OKT untuk menghantar ekshibit P21 kepada beliau di Ladang Merdeka, Jelawat. Transaksi komunikasi bagi mengesahkan perkara ini boleh dilihat dalam telefon bimbit OKT. Walau bagaimanapun, perkara ini tidak pernah disiasat oleh pihak polis walaupun telah dinyatakan oleh OKT selepas OKT ditangkap. [44] Bagi isu ini, Mahkamah ini membuat dapatan bahawa bukanlah menjadi satu tanggungjawab mandatori pihak polis untuk menyiasat transaksi telefon bimbit OKT memandangkan ianya tidak relevan kepada barang kes pertuduhan pertama. Dalam keterangan OKT, transaksi komunikasi yang didakwa melibatkan penama Che Wen hanya melibatkan barang kes bagi pertuduhan kedua iaitu P21. Selain itu, isu ini tidak relevan dalam konteks prinsip undang-undang berkenaan pemilikan dan kawalan barang kes dadah. Isu pokok dalam kedua-dua pertuduhan dalam kes ini bukanlah berpaksikan kepada isu pemilikan atau kepunyaan siapa barang kes dadah tersebut. Isu utama yang menjadi teras dalam pembuktian elemen dibawah seksyen 12(2) ADB ialah siapakah individu yang berada dalam milikan, kawalan, jagaan barang kes dadah pada masa tangkapan tersebut. Kepunyaan barang kes dadah milik siapa adalah tidak relevan dalam pembuktian elemen pertuduhan. Mahkamah ini juga merujuk kepada keterangan SP3 bahawa tiada pengetahuan berkenaan isu transaksi komunikasi telefon bimbit dan Mahkamah ini berpendapat bahawa perkara ini adalah tidak berbangkit memandangkan ianya gagal ditimbulkan oleh OKT semasa di peringkat siasatan kes. Justeru, Mahkamah ini tidak melihat isu ini sebagai satu isu yang bermerit. [45] Isu seterusnya ialah SD1/OKT dalam keterangannya juga menyatakan semasa acupakai dibuat, OKT telah mengesahkan bahawa sekiranya keempat-empat botol tersebut dimasukkan ke dalam poket seluar sebelah hadapan kanan beliau akan menjadikan poket seluar tersebut ketat dan padat dan seterusnya akan menyebabkan botol-botol tersebut pecah ataupun retak kerana pada masa kejadian, berlakunya S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 pergelutan antara beliau dengan pihak polis yang mana telah menyebabkan beliau terjatuh di atas tanah kawasan semak yang berbatu. Walau bagaimanapun, keadaan botol-botol tersebut sehingga ke hari ini menunjukkan bahawa tiada sebarang keretakan ataupun kerosakan. Hal ini disokong sendiri oleh SP3 dan dengan keadaan botol-botol yang dikemukakan di Mahkamah iaitu eksibit P5 (A-C) dan eksibit P21. [46] Merujuk kepada isu keretakan atau kepecahan botol akibat pergelutan yang berlaku di antara OKT dan anggota serbuan, Mahkamah ini merujuk kepada keterangan SP3 yang telah mengetuai serbuan yang mana juga konsisten dengan keterangan SP4 iaitu pegawai penyiasat dalam kes ini. Keterangan saksi-saksi pendakwaan ini adalah diterima yang mana telah menyatakan bahawa pergelutan yang berlaku tidak membawa kepada keadaan atau situasi yang menyebabkan OKT terjatuh dan sekali gus mengakibatkan botol-botol barang kes tersebut retak atau pecah. Mahkamah ini menerima keterangan bahawa perkara sedemikian tidak berlaku ketika kejadian serbuan dan ianya adalah hanya bersifat satu kemungkinan semata-mata. SP3 menyatakan bahawa pergelutan yang berlaku agak mustahil untuk menyebabkan botol-botol tersebut pecah. Mahkamah ini merujuk kepada demonstrasi acu pakai seluar OKT bersekali dengan botol-botol barang kes yang telah ditunjukkan oleh Peguam Bela semasa SD1/OKT memberikan keterangan. Kesemua botol-botol barang kes dadah iaitu eksibit P5(A-C) dan eksibit P21 adalah muat terletak di dalam poket hadapan seluar OKT dan tidak ketat sehingga mengundang kepada unsur-unsur yang memudahkan keretakan atau kepecahan kepada botol-botol tersebut. Perkara ini telah dijawab secara konsisten oleh SP3 yang menyatakan bahawa agak sukar untuk botol-botol tersebut retak atau pecah kerana keadaan botol yang keras dan juga mengambil kira keadaan dan situasi dalam kes semasa. SP3 secara konsisten menafikan cadangan Peguam Bela berkenaan isu ini. Pada akhirnya, isu ini hanyalah satu andaian atau kemungkinan semata-mata yang tidak disokong oleh fakta-fakta yang berlaku dalam kes ini. [47] Seterusnya, pihak Peguam Bela berhujah berkenaan isu “conduct” OKT. OKT telah mengaku bersalah terhadap pertuduhan kedua dan telah dijatuhkan hukuman denda sebanyak RM 4,000.00 oleh Mahkamah ini. Pengakuan salah tersebut dibuat oleh S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 OKT kerana barang salah tersebut dibawa oleh OKT ke tempat kejadian atas permintaan Che Wen. Semasa SD1/OKT memberikan keterangan, OKT telah menyatakan bahawa semasa OKT direman oleh pihak polis, OKT telah menyatakan bahawa OKT hanya membawa satu (1) botol sahaja yang mengandungi pil merah (eksibit P21). Malah, pihak polis telah memaksa beliau untuk mengaku terhadap tiga (3) botol lagi yang mengandungi serbuk putih (eksibit P5 A-C). OKT tidak dapat membuat apa-apa tindakan atau laporan polis mengenai hal ini kerana ketika itu, OKT berada di dalam penjara dan tidak diwakili oleh mana-mana peguam. Hal ini telah menyebabkan OKT telah dituduh dibawah Seksyen 39B ADB 1952 pada peringkat awal pertuduhan. Peguam Bela berhujah bahawa sekiranya benar barang salah eksibit P5 (A-C) tersebut adalah milik OKT, sudah pasti OKT akan mengaku bersalah dengan mengambil kira tempoh pemenjaraan yang OKT jalani dalam tempoh reman sementara menunggu laporan kimia dikeluarkan oleh Jabatan Kimia. [48] Berkenaan isu ini, Mahkamah ini berpendapat bahawa hujahan ini tidak masuk akal dan adalah berlawanan dengan ‘common sense’ atau keadaan biasa. Walaupun OKT telah mengaku bersalah bagi pertuduhan kedua dalam kes ini, ianya tiada kaitan untuk menunjukkan ‘conduct’ OKT yang akan secara automatik akan mengaku bersalah bagi pertuduhan pertama. Secara logik akal, kemungkinan adalah lebih tinggi untuk OKT mahupun mana-mana individu lain untuk tidak mengaku bersalah bagi pertuduhan pertama kerana peruntukan hukuman yang lebih berat yang mewajibkan pemenjaraan dan juga sebatan. Berkenaan isu paksaan oleh pihak polis untuk OKT mengaku bersalah bagi barang kes pertuduhan pertama ini, tiada nama mana-mana anggota polis dikemuka kepada pihak polis semasa peringkat siasatan kes ini mahupun ditimbulkan ketika perbicaraan berlangsung sekiranya dakwaan tersebut benar. Seterusnya, walaupun OKT tidak mempunyai masa untuk membuat laporan polis ketika dalam tahanan dan juga kerana tidak diwakili oleh peguam, sehingga ke masa sepanjang perbicaraan berlangsung, OKT tidak pun membuat sebarang laporan polis berkenaan perkara tersebut. Mahkamah ini melihat dakwaan ini hanyalah bersifat rekaan semata-mata tanpa disokong oleh apa-apa fakta mahupun bukti. S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 [49] Peguam Bela turut berhujah berkenaan isu ‘tip-off’. Undang-undang adalah mapan bahawa dalam kes di mana pihak polis bertindak berdasarkan ‘tip-off’, pihak Pendakwaan mempunyai beban untuk menafikan akses individu lain ke atas barang salah. SD1/OKT telah mengesahkan bahawa ketika hari OKT ditangkap, Che Wen turut berada di tempat kejadian. OKT turut mengesahkan bahawa pihak polis telah memaksa Che Wen untuk menghubungi beliau untuk pergi ke Ladang Merdeka Jelawat. Keterangan OKT adalah konsisten walaupun disoal balas oleh pihak Pendakwaan. Malah, SP3 telah mengakui bahawa tangkapan pada hari kejadian berdasarkan bertindak atas maklumat. Tambahan pula, penama Che Wen turut berada di tempat kejadian di mana OKT ditangkap. Fakta ini diakui sendiri oleh OKT semasa memberi keterangan. Keterangan SD1/OKT tentang kewujudan ‘Che Wen’ adalah konsisten walaupun disoal balas oleh pihak Pendakwaan. SD1/OKT telah menyatakan bahawa beliau mengenali ‘Che Wen’ lebih kurang selama setahun dan perkenalan tersebut disebabkan kerana membaiki motosikal. Pihak Pembelaan telah meletakkan perihal ‘Che Wen’ ini kepada SP3 sejak dari awal kes pendakwaan lagi. Dihujahkan bahawa kewujudan penama ‘Che Wen’ ini bukanlah watak rekaan semata-mata oleh OKT, tetapi kewujudan yang memang tidak dapat disangkal. [50] Berkenaan isu ini, Mahkamah ini merujuk kepada keterangan SP3 dan SP4 bahawa sememangnya tidak dinafikan bahawa terdapat banyak tangkapan pada hari dan masa kejadian tetapi ianya adalah berasingan dan bukan di tempat yang sama serta dalam jarak yang jauh antara satu tangkapan dengan tangkapan yang lain. Berbalik kepada fakta dalam kes ini, barang kes dadah dijumpai di dalam poket seluar hadapan kanan yang dipakai oleh OKT ketika serbuan dan tangkapan dilakukan. Justeru, Mahkamah ini berpendapat hujahan Peguam Bela berkenaan isu ini adalah tidak bermerit sama sekali. Mahkamah ini juga tertarik dengan keterangan SD1/OKT bahawa perkenalan dengan penama yang dikatakan Che Wen adalah lebih kurang selama 1 tahun. Mahkamah ini sedar akan prinsip undang-undang bahawa beban pembuktian kes adalah di bahu pihak Pendakwaan pada setiap masa. Namun demikian, adalah menjadi tugas pihak Pembelaan apabila kes telah dipanggil untuk membela diri di peringkat pembelaan, untuk menimbulkan satu keraguan yang munasabah dalam kes Pendakwaan. Secara logiknya, jika penama yang didakwa Che Wen ini benar-benar S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 wujud dan merupakan kenalan OKT dengan tempoh perkenalan yang boleh dikatakan agak lama iaitu 1 tahun, seboleh-bolehnya maklumat yang lebih terperinci diberikan berkenaan penama Che Wen ini ketika siasatan dijalankan oleh pihak polis dan dalam keterangan di Mahkamah jika setidak-tidaknya membawa mana-mana saksi lain termasuk Che Wen untuk memberikan keterangan di Mahkamah. Sekadar menimbulkan nama untuk mengecualikan diri daripada pertuduhan tanpa disokong oleh apa-apa fakta lain mahupun bukti tidaklah terjumlah kepada satu keraguan yang munasabah kepada kes Pendakwaan dalam kes ini. [51] Isu selanjutnya yang dihujahkan oleh Peguam Bela adalah berkenaan wujudnya tangkapan lain selain OKT (isu pemilikan individu lain). Terdapat tangkapan lain yang telah dibuat oleh pihak polis di tempat kejadian selain OKT pada hari dan masa yang sama. Fakta mengenai tangkapan ini telah diakui oleh SP3 dan SD1/OKT sendiri. Berdasarkan fakta ini, wujudnya keraguan berkenaan siapakah yang sebenarnya memiliki barang salah tersebut. Hal ini kerana pada hari kejadian, banyak tangkapan dan barang rampasan yang melibatkan pelbagai jenis barang salah yang telah dibuat oleh anggota serbuan. Peguam Bela menghujahkan bahawa keterangan keadaan yang wujud tidak dapat menunjukkan OKT ada pemilikan terhadap barang salah tersebut. Antaranya ialah kerana tiada cap jari OKT ditemui pada barang salah, ujian air kencing OKT adalah negatif dan laporan dusting cap jari OKT tidak ditemui pada barang salah tersebut. [52] Bagi isu ini, seperti yang telah dinyatakan dalam perenggan sebelum ini, barang kes dadah ditemui dalam poket seluar kanan hadapan yang dipakai oleh OKT pada masa tangkapan dilakukan dan hanya OKT seorang sahaja yang ditangkap di tempat kejadian pada masa tangkapan. Walaupun terdapat tangkapan lain, semua tangkapan adalah di tempat yang berbeza dan jaraknya agak jauh antara satu sama lain serta dalam situasi yang berbeza. Selain itu, tiada isu melibatkan percampuran barang kes dengan tangkapan lain berdasarkan keterangan saksi-saksi yang tidak meruntuhkan rantaian pergerakan barang kes. Isu berkenaan ujian air kencing OKT yang negatif adalah tidak relevan dengan pertuduhan sepertimana yang telah dinyatakan dalam perenggan sebelum ini. Seterusnya, berkenaan ujian cap jari, ianya bukanlah suatu keperluan S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 mandatori mengambilkira situasi fakta kes dalam kes ini kerana barang kes dadah dijumpai dalam poket seluar yang dipakai OKT. Mahkamah ini tidak melihat sebarang keperluan untuk ujian cap jari dibuat pada barang kes dadah berpandukan kepada nas- nas undang-undang berkenaan ujian cap jari yang telah mantap. Mahkamah ini membuat rujukan kepada kes Mazlani Mansor & 2 Lagi v Pendakwa Raya (2013) 1 LNS 1292, Mahkamah Rayuan telah memutuskan: “With regard to the absence of the Appellant’s finger prints on the incriminating items, we find that not much weight can be attached to such evidence either because in criminal law, a person may still be in possession of a movable thing without actually being in physical contact with it. What is required is that he is so situated with respect to it that he has the power to deal with is as owner to the exclusion of all other persons which, as we found earlier, is the case here.” Tambahan pula, Mahkamah Rayuan dalam membuat rujukan kepada kes di atas, menyatakan dalam kes Seyed Amir Syedmostaffa Mir Heidari Eishka v Pendakwa Raya (2020) 1 LNS 263, seperti berikut: “Berhubung isu tiada keterangan DNA Perayu atas pelapik N1 dan N2; tiada pengesanan cap jari atas kedua-duanya dibuat bagi mengaitkan Perayu dan wujudnya DNA campuran atas pakaian dan tali pinggang yang dijumpai di dalam beg, kami bersependapat dengan Hakim Bicara bijaksana bahawa perkara ini tidak seharusnya diberi penekanan oleh Mahkamah.” Mahkamah Persekutuan menyatakan dalam kes PP v Mansor Md. Rashid & Anor (1997) 1 CLJ 233, seperti berikut: “Where the identity of a culprit is in question or required to be proved, fingerprint evidence would be of great significance and immense value. In the present case under appeal, however, the charge alleged trafficking in the form of sale and there is evidence indicating S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 the identities of the alleged offenders and the sale transaction. Fingerprint evidence on the newspaper wrapping, white plastic dan the loytape, therefore, assumes little value or significance.” [53] Seterusnya, Peguam Bela berhujah berkenaan telefon bimbit milik OKT. Kegagalan pihak polis untuk menyiasat kebenaran berkenaan dengan transaksi komunikasi antara OKT dan Che Wen yang terdapat dalam telefon bimbit OKT menyebabkan terdapat kelompangan yang jelas dalam siasatan dan pertuduhan yang dikenakan terhadap OKT. SP4 iaitu pegawai penyiasat telah gagal untuk membuat siasatan kerana telah mengakui semasa disoal balas bahawa tidak pernah meminta telefon bimbit milik OKT daripada SP3. [54] Bagi isu ini, seperti yang telah dirungkaikan dalam perenggan sebelum ini, SP4 dalam keterangannya telah menyatakan bahawa SP4 tiada pengetahuan berkenaan telefon bimbit OKT dan dihujahkan oleh pihak Pendakwaan bahawa isu berkenaan telefon bimbit tidak pernah ditimbulkan oleh OKT pada bila-bila masa semasa di peringkat siasatan kes. Mahkamah ini bersetuju dengan hujahan pihak Pendakwaan bahawa isu berkenaan telefon bimbit adalah tidak relevan mengambil kira keadaan fakta dalam kes ini. Barang kes dadah dijumpai dalam poket seluar hadapan kanan yang dipakai oleh OKT. Isu siasatan transaksi telefon bimbit ini jika benar wujud sekali pun, tidak mempengaruhi atau membawa apa-apa kesan terhadap pertuduhan ke atas OKT. [55] Peguam Bela turut berhujah berkenaan keadaan siasatan oleh SP4 yang didakwa tidak bebas dan tidak menyeluruh kerana dilihat bergantung bulat-bulat kepada kenyataan SP3 dalam hal-hal seperti pergerakan OKT ke tempat kejadian. SP3 telah menyatakan bahawa OKT telah berjalan ke kawasan semak Ladang Merdeka pada hari kejadian. Namun, semasa disoal balas oleh Peguam Bela, SP3 telah menukar keterangan beliau dengan menyatakan OKT menaiki motosikal ke tempat kejadian. SP4 mengakui ada berlakunya pergelutan antara OKT dengan anggota serbuan berdasarkan keterangan SP3. Pelan rajah lakaran yang disediakan oleh SP4 hanyalah bergantung kepada keterangan SP3 tanpa menyiasat kedudukan sebenar OKT sewaktu tangkapan S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 dibuat. SP4 gagal untuk menyiasat pemilik sebenar barang salah tersebut dan hanya bergantung kepada SP3 semata-mata. [56] Merujuk kepada kes Lim Guan Eng v PP (1998) 3 MLJ 14 di muka surat 47, Mahkamah memutuskan seperti berikut: “However, the law, recognizing that much depends upon the human factor and vagaries of life, refuse to lay down any absolute rule in the matter of evidence evaluation. Witnesses are but human. Testimony may often be colored by emotion, benign or malice. Not all witnesses speak the whole truth, despite the oath or affirmation administered to him. Not all witnesses are devoid are bias of one sort or another. Recollection of evidences is seldom, if ever, perfect. Two or more persons witnessing the same incident may give varying, yet truthful accounts of it according to their perception. There are so many other imponderables. The law would fail to meet the needs of society whose affairs it regulates if it does not take into account the incalculable that enter upon the scene when questions of appreciation of evidence arise.” Rujukan juga dibuat kepada kes Che Omar bin Mohd Akhir v PP (1999) 2 MLJ 689 di muka surat 689, Mahkamah menyatakan seperti berikut: “It is wrong to say that just because a witness may have contradicted in his evidence or even told lies on one or two points, his evidence should be totally rejected.” Manakala dalam kes PP v Dato’ Seri Anwar Ibrahim (1999) 2 CLJ 215 di muka surat 293, Mahkamah menyatakan: “The Privy Council has stated that the real tests for either accepting or rejecting the evidence of a witness are how consistent the story is with itself, how it stands the test of cross examination, and how far it fits in with the rest of the evidence and the circumstances of the case… it has been held that if the witness demonstrably tell lies, his evidence must be looked upon with suspicion and treated with caution, but to say that it S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 should be entirely rejected would be go to far… the Indian Supreme Court has pointed out that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment.” Mahkamah ini secara keseluruhannya berpendapat bahawa isu ini tidak material kerana SP4 sebagai pegawai penyiasat sememangnya banyak bergantung kepada keterangan SP3 sebagai pegawai yang menangkap OKT memandangkan SP4 tidak berada di tempat kejadian sewaktu tangkapan dibuat. Walau bagaimanapun, pada pengamatan Mahkamah ini, isu ini tidak sama sekali timbul kerana segala siasatan yang dijalankan adalah mencukupi dan memadai secara konsisten dengan segala keterangan yang dikemukakan sepanjang perbicaraan kes. Mahkamah ini secara keseluruhannya menerima keterangan SP3 dan SP4 dan berpendapat bahawa SP3 dan SP4 adalah saksi yang kredibel. Berkenaan isu ketiadaan siasatan berkenaan pemilik sebenar barang kes, Mahkamah ini tidak berhasrat untuk mengulangi ulasan Mahkamah ini berkenaan isu ini seperti di perenggan-perenggan di atas. Isu ini adalah tidak relevan mengambilkira keadaan fakta kes ini. [57] Peguam Bela turut menimbulkan isu niat pihak polis untuk menjenayahkan OKT. Dalam kes semasa, pihak Pembelaan menghujahkan bahawa wujudnya niat untuk menjenayahkan OKT sejak daripada awal siasatan yang dilakukan oleh SP4. Hal ini dapat dilihat dengan prosedur penimbangan barang kes yang dibuat oleh SP4 sebelum kertas siasatan dibuka. SP4 telah mengakui bahawa beliau telah menimbang berat barang salah bersekali dengan botol yang mana telah menyebabkan OKT telah dituduh dibawah seksyen 39B ADB 1952 pada peringkat awal pertuduhan yang menyebabkan OKT tidak dibenarkan jamin. Dihujahkan Mahkamah seharusnya mengambil ‘judicial notice’ bahawa botol-botol tersebut boleh menambahkan lagi berat timbangan. Fakta ini disokong dengan tempoh tahanan reman kepada OKT yang telah dinafikan untuk diberikan jaminan. Lebih parah lagi, SD1/OKT telah memberi keterangan di Mahkamah bahawa beliau telah dipukul oleh anggota polis semasa di tempat kejadian. Hal ini telah menyebabkan OKT mengalami kecederaan pada lengan, jari dan muka. SD1/OKT juga mengesahkan bahawa terdapat anggota polis yang tidak berpuas hati dengan OKT dan S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 akan menahan OKT di penjara kerana anggota polis tersebut telah mengalami kecederaan semasa berlakunya pergelutan tersebut. [58] Mahkamah ini melihat isu ini sebagai satu isu yang serius kerana ianya melibatkan kredibiliti siasatan dan terkait kepada pegawai polis yang merupakan pegawai penyiasat dalam kes ini yang juga merupakan SP4 dan anggota serbuan. Isu ini juga melibatkan imej pihak polis secara amnya. Bagi pernyataan berkenaan timbangan berat barang kes, Mahkamah ini mengambil “judicial notice” bahawa kebanyakan kes yang dipertuduhkan di Mahkamah adalah melibatkan situasi yang sama dan telah menjadi kebiasaan atau norma semasa. Ianya juga termasuk (tetapi tidak terhad kepada) kes-kes yang dituduh pada awalnya dibawah Seksyen 39B ADB 1952 dan kemudiannya apabila laporan kimia diterima oleh Jabatan Kimia Malaysia, pertuduhan akan dipinda kepada Seksyen 39A(1) ADB 1952. Maka, Mahkamah ini berpendapat ianya bukan satu isu yang relevan kepada pernyataan niat untuk menjenayahkan OKT dalam kes ini. Berkenaan isu anggota polis yang tidak berpuas hati terhadap OKT akibat berlaku pergelutan semasa tangkapan, seperti yang telah dinyatakan di perenggan di atas, OKT pada bila-bila masa tidak pernah membuat laporan polis berkenaan ugutan ini, jika ianya benar sekali pun. OKT juga tidak pernah menimbulkan mana-mana nama anggota polis yang membuat ugutan tersebut sepanjang siasatan kes mahupun sepanjang perbicaraan berlangsung. Mahkamah ini membuat dapatan bahawa isu ini adalah rekaan semata-mata yang tidak mematahkan kes Pendakwaan. [59] Isu terakhir yang dihujahkan oleh Peguam Bela adalah apabila terdapat kelompangan dalam kes pendakwaan yang mana kelompangan tersebut telah mewujudkan satu inferens yang memihak kepada OKT, Mahkamah perlu memilih dan memberi keutamaan kepada inferens yang memihak kepda OKT. Dalam kes semasa, terdapat banyak inferens yang boleh menjurus kepada ketidakbersalahan OKT sepertimana yang telah dihujahkan di akhir kes pendakwaan yang seharusnya dinilai oleh Mahkamah. Ini termasuklah keterangan saksi-saksi Pendakwaan berkenaan isu ketiadaan laporan cap jari, kegagalan menyiasat telefon bimbit OKT, siasatan yang tidak lengkap dan menyeluruh, kebergantungan penuh pegawai penyiasat terhadap S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 keterangan SP3, wujudnya tangkapan lain selain OKT di tempat kejadian serta percanggahan keterangan saksi-saksi Pendakwaan berkenaan pergerakan OKT ke tempat kejadian sama ada OKT menaiki motosikal atau berjalan kaki. [60] Berkenaan isu ini, secara keseluruhannya telah dirangkumkan dan telah diperjelaskan dapatan Mahkamah ini satu per satu berkenaan isu-isu tersebut secara spesifik dalam perenggan-perenggan sebelum ini dalam Alasan Penghakiman ini. Dapatan Mahkamah ini bagi setiap isu yang ditimbulkan secara masing-masing telah mewujudkan inferens yang tidak memihak kepada OKT dan mematahkan hujahan- hujahan pihak Pembelaan satu per satu dalam setiap isu tersebut. Mahkamah ini tidak berhasrat untuk mengulangi segala dapatan Mahkamah ini seperti yang telah dinyatakan. C. Analisis Mahkamah [61] Mahkamah ini telah meneliti keterangan yang dikemukakan oleh pihak Pembelaan dan membuat penilaian ke atas keseluruhan keterangan kes. Mahkamah ini mendapati kes pembelaan adalah bersifat penafian kosong dan rekaan semata-mata. Penelitian fakta kes dan isu-isu yang ditimbulkan oleh pihak Pembelaan ini juga menunjukkan kes pembelaan sebagai sebuah cerita yang tidak tulen, direka-reka dan bersifat penafian kosong semata-mata. [62] Bagi menyokong dapatan ini, Mahkamah ini merujuk kepada kes Sabarudin Bin Non & Ors v PP [2005] 4 MLJ 37, Mahkamah Rayuan menyatakan seperti berikut: “…The learned judge found that the defence did not raise a reasonable doubt in his mind. We agree with his conclusion on this point. As to what is meant by ‘reasonable doubt’ we would refer to Underhill’s treatise on The Law of Criminal Evidence (5th Ed, vol 1, at p 34) where the learned author states as follows: S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in their minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt. (Emphasis added.) In our judgment, the learned judge’s direction unto himself amply met the requirements suggested by the learned author in the aforesaid passage with which we wholly agree. It is only after a careful analysis of the evidence that he came to the conclusion that the accused had not raised a reasonable doubt.” [63] Mahkamah ini turut mempertimbangkan faktor-faktor lain sebelum memutuskan bahawa versi pembelaan adalah sebuah rekaan yang bersifat fikiran terkemudian sungguhpun telah ditimbulkan semasa kes pendakwaan. [64] Bermula daripada saat OKT dibebaskan dengan jaminan sehingga perbicaraan kes ini selesai, OKT tidak langsung menggunakan waktu yang panjang ini untuk membuat laporan polis untuk menegaskan kes pembelaan serta isu-isu yang ditimbulkan. Sungguh pun ianya bersifat sokongan, laporan polis yang menyatakan semua fakta penting boleh menyelamatkan OKT daripada kesalahan yang dipertuduhkan. [65] Jika diteliti, dakwaan kes pembelaan OKT adalah serius. Barang kes yang menjadi intipati pertuduhan pertama ini didakwa bukan dirampas dalam poket seluar OKT. Dakwaan OKT bahawa barang kes sebenarnya milik individu-individu lain yang menjadi tangkapan lain sewaktu kejadian menunjukkan pendakwaan ke atas OKT adalah berniat jahat. OKT juga menyatakan bahawa terdapatnya anggota polis yang tidak berpuas hati dengan OKT dan ingin memasukkan OKT ke dalam penjara sekali gus membawa S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 dakwaan niat jahat untuk menjenayahkan OKT. Mahkamah menyifatkan perkara-perkara ini sebagai sesuatu yang serius dan penting dalam tonggak pembelaan kes OKT. [66] Kegagalan OKT untuk membuat apa-apa laporan polis berkenaan perkara yang amat penting ini menjadikan kes pembelaan tidak tulen dan hanyalah rekaan semata- mata dan hanya tinggal sebagai dakwaan kosong apatah lagi tidak disokong oleh apa- apa fakta mahu pun bukti . [67] Mahkamah ini juga meragui kredibiliti keterangan SD1/OKT. SD1/OKT memberikan keterangan di Mahkamah sudah tentu sama sekali untuk menyelamatkan dirinya daripada sabitan dalam kes ini. Berbanding saksi-saksi pihak Pendakwaan, Mahkamah tiada sebab untuk meragui keterangan mereka yang menjalankan tugas dalam tangkapan dan siasatan kes ini. Merujuk kepada kes Mohamed Ali v PP [1962] MLJ 257 yang memutuskan bahawa: “When a police witness says something that is not inherently improbable his evidence must in the instance be accepted. If he says he saw a cow jumping over the moon his evidence is of course not to be believed if he says he saw a cow wandering along the streets of Kuala Lumpur (the sort of thing we see every day in our lives there is not the slightest justification for refusing to believe him. Of course if his experience is contradicted by other evidence or is shaken by cross examination then it becomes the business of the magistrate to decide whether or not it should be accepted. In the absence of any element of inherent probability the evidence of any witness, whether a police or not who gives evidence of affirmation should normally be accepted.” [68] Selain itu, pihak Pembelaan tidak menafikan sama sekali bahawa OKT sememangnya ditangkap dan terdapat barang kes dirampas pada masa kejadian. Justeru, Mahkamah ini berpandangan bahawa pembelaan yang dikemukakan adalah tidak lain daripada penafian kosong semata-mata. OKT hanya menyatakan barang kes yang menjadi intipati pertuduhan pertama tidak dijumpai dalam poket seluar kanan S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 hadapan yang dipakai OKT hanya untuk menyelamatkan dirinya daripada pertuduhan yang membawa hukuman yang lebih berat sahaja. [69] Mahkamah ini merujuk kepada kes Mahkamah Rayuan, Mr Losali v PP [2011] 4 MLJ 694, yang menerangkan tentang penafian kosong, seperti berikut: “The learned trial judge rightly held that the defence of the appellant was a bare denial. It is trite law that the defence of bare denial is no defence. What this amounts to is this. That the appellant did not offer any explanation to the two charges and merely denied the evidence advanced by the prosecution. That was indeed a perilous course to undertake. The bare denial cannot in law raise a reasonable doubt and the appellant must be convicted for both the charges. Raja Azlan Shah CJ (Malaya) (as His Majesty then was) in DA Duncan v Public Prosecutor [1980] 2 MLJ 195, had this to say in regard to the defence of simple denial: The defence was, in effect, a simple denial of the evidence connecting the appellant with the four boxes. We cannot see any plausible ground for saying that the four boxes were not his. In the circumstances of the prosecution evidence, the High Court came, in our view, to the correct conclusion that this denial did not cast a doubt on the prosecution case against the appellant.” [70] Oleh yang demikian, secara kesuluruhannya, Mahkamah ini mendapati pihak Pembelaan telah gagal menimbulkan sebarang keraguan munasabah terhadap kes Pendakwaan. Selanjutnya, pihak Pendakwaan telah berjaya membuktikan kes melampaui keraguan munasabah ke atas OKT. Dengan itu, OKT didapati bersalah dan disabitkan sebagaimana pertuduhan pertama. S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 MITIGASI DAN PEMBERATAN BERKENAAN HUKUMAN [71] Sebelum hukuman diputuskan oleh Mahkamah ini, pihak Pembelaan telah membuat rayuan mitigasi OKT. Rayuan mitigasi adalah seperti berikut: “Pohon satu bentuk hukuman yang paling minimum - OKT berumur 30 tahun – kini menanggung seorang isteri dan 3 orang anak beliau yang mana anak bongsu beliau baru berusia 1 tahun - isteri tidak bekerja - harapkan tertuduh nafkah utama yang bekerja sendiri dengan berkebun untuk mendapatkan hasil untuk menyara ahli keluarga - mohon mahkamah pertimbangkan OKT telah menjalani satu tempoh tahanan reman yang panjang apabila tidak diberikan jamin pada peringkat awal di peringkat pertuduhan iaitu selama hampir 6 bulan - mohon faktor OKT pilih untuk bicara tak dijadikan faktor pemberat memandangkan hak untuk bicara dijamin di bawah Perlembagaan Persekutuan - hak diberikan kepada OKT - pohon mahkamah guna pakai/ambil kira faktor kerjasama baik kepada mahkamah dan pihak polis sejak awal tangkapan dan setiap kali tarikh sebutan – tanpa gagal hadir setiap kali tarikh sebutan - atas sebab-sebab berikut pohon hukuman paling minimum diberikan kepada OKT dalam kes ini”. [72] Pihak Pendakwaan mengemukakan faktor pemberatan seperti berikut: “Pohon hukuman berat dan setimpal ke atas OKT - alasan 1 - berjalan bicara penuh dalam kes ini, telah panggil beberapa saksi semasa kes pendakwaan telah memakan masa panjang sepanjang bicara berlangsung, telah berjalan bicara penuh, tiada sebarang keperluan pertimbangan diskaun hukuman penjara. Pada awal kes diberi peluang untuk mengaku bersalah - ambilkira keseriusan kesalahan, serta faktor kepentingan awam, prinsip utama dalam menjatuhkan hukuman - hukuman berbentuk pencegahan supaya hukuman diberikan dapat dijadikan satu pengajaran kepada OKT dan kepada masyarakat supaya masyarakat lebih sedar tindakan memiliki dadah merupakan satu tindakan dan kesalahan yang tak seharusnya dipandang remeh – pohon hukuman mencerminkan keseriusan kesalahan dalam kes ini”. S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 [73] Setelah mempertimbangkan hujahan mitigasi dan pemberatan yang dikemukakan, Mahkamah ini telah menjatuhkan hukuman penjara selama dua puluh empat (24) bulan dari tarikh sabitan dan tiga (3) sebatan ke atas OKT. ANALISIS HUKUMAN [74] Rujukan dibuat kepada kes PP v Sim Joo Liong [2014] 1 LNS 402, Mahkamah menyatakan seperti berikut: “Our law does not therefore fix the sentence for a particular offence but it 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, the court has the right and duty to decide whether to be lenient or severe”. [75] Mahkamah ini juga merujuk kepada petikan keputusan YA Augustine Paul JC (pada ketika itu) dalam kes Zaidon Shariff v PP [1996] 4 CLJ 441: “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. PP [1982] 1 MLJ 27).” [76] Mahkamah ini telah menjatuhkan hukuman kepada OKT berdasarkan peruntukan undang-undang dibawah Seksyen 39A(1) ADB 1952. Hukuman dibawah Seksyen ini adalah lebih berat merujuk kepada barang kes dadah yang dimiliki oleh OKT adalah berjumlah 2.66 gram jenis heroin. Walau bagaimanapun, berat bersih barang kes hanyalah pada paras 2.66 gram yang mana pada hemat Mahkamah ini adalah rendah jika dirujuk kepada takat minimum iaitu 2.00 gram dan takat maksimum iaitu 5.00 gram. [77] Dalam kes ini, Mahkamah mengambil kira bahawa umur OKT yang masih muda iaitu 30 tahun yang dikategorikan sebagai belia sewajarnya melayakkan OKT untuk S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 diberikan peluang untuk berubah ke arah kehidupan yang lebih baik pada masa hadapan dengan tidak menghabiskan masa yang lama di dalam penjara. Hukuman pemenjaraan yang tidak panjang juga secara tidak langsung dapat menjimatkan perbelanjaan Kerajaan dalam menanggung kehidupan banduan di dalam penjara. Hal ini sekali gus menjimatkan wang pembayar cukai di negara ini. [78] Merujuk kepada latar belakang OKT juga, isteri OKT adalah seorang yang tidak bekerja dan perlu menanggung tiga orang anak. Hanya OKT sahaja yang bekerja dan menanggung nafkah keluarga. Hukuman pemenjaraan yang panjang sudah semestinya akan menyukarkan dan menyulitkan lagi kehidupan keluarga OKT pada zaman yang serba mencabar ini. [79] Mahkamah ini turut mengambil kira hujahan pihak Pembelaan berkenaan OKT yang telah ditahan reman yang agak lama di penjara selama 6 bulan oleh kerana siasatan kes pada awalnya adalah dibawah seksyen 39B ADB 1952 sebelum dibenarkan jaminan oleh Mahkamah. Pada hemat Mahkamah ini, tempoh reman di penjara selama lebih kurang 6 bulan tersebut wajar dipertimbangkan dan diambil kira oleh Mahkamah ini sebagai satu hukuman yang berbentuk pengajaran kepada OKT sekali gus menjadi salah satu faktor mitigasi hukuman bagi kes ini. [80] Selain itu, Mahkamah ini merujuk kepada hujahan pihak Pendakwaan berkenaan faktor pemberatan hukuman. Mahkamah ini ingin menegaskan bahawa hukuman yang dijatuhkan dalam kes ini adalah bukan berbentuk diskaun atau pengurangan. Hukuman yang dijatuhkan adalah dalam ruang lingkup peruntukkan hukuman yang digariskan apatah lagi terdapat peruntukan hukuman minimum. Mahkamah ini juga berpendapat tempoh pemenjaraan minimum yang dijatuhkan juga adalah memadai memandangkan terdapat peruntukan hukuman sebatan. Kombinasi dua hukuman mandatori ini adalah cukup dan memadai berdasarkan keadaan kes ini. [81] Merujuk kepada perjalanan perbicaraan kes yang memakan masa yang lama bagi kes ini, Mahkamah mengambil kira pelbagai faktor yang juga adalah di luar kawalan S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 pihak-pihak dan Mahkamah, antaranya, penangguhan kes adalah disebabkan oleh wabak COVID-19 yang tidak membenarkan perbicaraan dijalankan terutamanya bagi Mahkamah di negeri Kelantan. Berdasarkan rekod prosiding Mahkamah dalam kes ini, faktor-faktor penangguhan ini dan yang lain juga bukanlah disumbangkan oleh pihak Pembelaan mahupun OKT. Mahkamah ini memperakui bahawa OKT dan pihak Pembelaan telah memberikan kerjasama yang baik sepanjang perbicaraan kes ini berlangsung. [82] Berdasarkan alasan-alasan di atas, Mahkamah ini berpandangan bahawa hukuman yang dijatuhkan kepada OKT adalah adil, wajar dan berpatutan. PENGGANTUNGAN PELAKSANAAN HUKUMAN [83] Pihak Pembelaan juga telah memohon untuk penggantungan pelaksanaan hukuman yang dijatuhkan ke atas OKT. Pihak Pembelaan menyatakan seperti berikut: “Telah mendapat arahan anak guam untuk mengemukakan satu rayuan ke Mahkamah Tinggi terhadap keseluruhan keputusan, atas sebab itu mohon mengguna pakai budi bicara di bawah seksyen 311 Kanun Tatacara Jenayah. Kami percaya Mahkamah mempunyai budi bicara dan bidang kuasa untuk memberikan satu penangguhan hukuman terhadap OKT. Dan dengan akujanji pihak kami akan memfailkan notis rayuan dalam secepat mungkin pada hari ini atau pada hari Ahad depan kepada Mahkamah Tinggi Kota Bharu. Pihak kami menghujahkan bergantung kepada kes Ganesan v PP 2 MLJ 369 yang mana dalam kes ini Mahkamah – salah satu perkara yang patut dipertimbangkan - alasan penangguhan hukuman - gravity of the offence - length of term of imprisonment – seksyen 39A(1) bukan kesalahan serius, tempoh hukuman 24 bulan - tempoh rayuan ambil masa panjang - jika rayuan Berjaya, hukuman pemenjaraan akan menjadi akademik dan sia-sia sementara rayuan dilupuskan – OKT tak pernah menerima aduan kesalahan lain - OKT mempunyai rekod kedatangan baik hadir setiap kali tarikh sebutan dan perbicaraan - mohon mahkamah kekalkan jamin - ayah hadir selaku penjamin beri kerjasama baik pohon pertimbangkan faktor mitigasi - OKT merupakan S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 penanggung tunggal keluarga - isteri dan anak kecil bergantung harapan kepada OKT mencari nafkah rezeki - atas sebab hujah ini pohon penangguhan hukuman – pohon kekalkan jamin yang sama - terdapat banyak merit undang-undang akan dihujahkan, terlalu awal untuk berhujah kerana belum dibekalkan alasan penghakiman penuh - saya percaya isu telah dihujah di peringkat mahkamah - berkenaan OKT akan melarikan diri, hanya spekulasi – OKT boleh berbuat sedemikian sejak sekian lama – namun OKT datang terima keputusan tanpa sebarang cubaan melarikan diri.” [84] Pihak Pendakwaan berhujah seperti berikut: “Bantah permohonan penangguhan – hasrat untuk memfailkan rayuan, dalam kes ini peguam tidak mengemukakan sebarang merit dalam permohonan rayuan - itu merupakan perkara mahkamah ambil kira sama ada permohonan penangguhan dibenarkan atau tidak – mengambil kira dalam kes ini, peguam nyatakan berkenaan dengan kehadiran OKT sepanjang bicara dijalankan - bantah faktor tersebut mengambil kira OKT telah didapati bersalah pada hari ini - presumption innocent until proven guilty tidak terpakai -. pohon bantah, ambil kira memandangkan kes ini wajib penjara, terdapat possibility untuk OKT melarikan diri - pohon jamin tinggi dibenarkan - pohon ditetapkan syarat tambahan ketat bagi memastikan kehadiran OKT sehingga selesai kes di Mahkamah Tinggi.” [85] Setelah mendengar hujahan pihak-pihak, Mahkamah ini dengan menggunakan budi bicaranya, telah membenarkan penangguhan pelaksanaan keseluruhan hukuman ke atas OKT, berserta wang jaminan ditambah sebanyak RM 5000.00 dan syarat tambahan bahawa OKT perlu melaporkan diri di balai polis berdekatan dengan tempat kediaman OKT pada hari OKT dijatuhkan hukuman dan pada setiap 1 dan 15 hari bulan setiap bulan sehingga kes selesai diputuskan di peringkat rayuan, dikenakan ke atas OKT. [86] Mahkamah ini berpendapat bahawa memandangkan rayuan akan difailkan terhadap keputusan Mahkamah ini oleh pihak Pembelaan, hukuman yang dijatuhkan S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 sewajarnya digantung terlebih dahulu sementara menunggu pelupusan kes di peringkat rayuan di Mahkamah Tinggi. Hal ini demikian kerana memandangkan hukuman dalam kes ini adalah pemenjaraan yang bersifat menyekat kebebasan pergerakan OKT yang dijamin di bawah Perlembagaan Persekutuan. Selain itu, adalah menjadi hak OKT yang telah termaktub di sisi undang-undang untuk mengemukakan rayuan ke Mahkamah yang lebih tinggi. Mahkamah ini juga bersetuju dengan hujahan pihak Pembelaan bahawa sekiranya hukuman pemenjaraan tidak ditangguhkan, dan sekiranya rayuan pihak Pembelaan dibenarkan oleh Mahkamah Tinggi, ianya akan menjadi akademik dan sia- sia bagi OKT yang sedang menjalani hukuman penjara. Tambahan pula, Mahkamah ini mengambil ‘judicial notice’ bahawa keseluruhan proses rayuan sememangnya akan memakan masa yang lama. Justeru, Mahkamah ini berpendapat bahawa keputusan membenarkan penggantungan pelaksanaan hukuman dalam kes ini adalah wajar dan adil kepada semua pihak. Bertarikh pada 22 November 2023 MOHD FAUZAN BIN MOHD SUHAIRI Majistret Mahkamah Majistret Bachok Kelantan Bagi pihak Pendakwaan : NURSYAFIQAH BINTI MOHAMAD Timbalan Pendakwa Raya Bagi pihak Pembelaan : SYED MUHAMMAD SYAFIQ BIN SYED ABU BAKAR Tetuan Wan Haron Sukri & Nordin S/N 75LLB4NRCUq3N1N4A3NZzw **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

JA-29PB-385-06/2023

PEMIUTANG PENGHAKIMANHON WAN FATTPENGHUTANG PENGHAKIMAN1. ) KETUA PENGARAH JABATAN INSOLVENSI MALAYSIA 2. ) MOHD HAIL BIN ARBAIN

Sama ada permohonan Pemiutang Penghakiman untuk menghalang Ketua Pengarah Insolvensi menurut seksyen 33B Akta Insolvensi 1967 wajar dibenarkan-sama ada surat penolakan bantahan yang dikeluarkan KPI kepada peguam Pemiutang Penghakiman adalah wajar-sama ada permohonan Pemiutang Penghakiman di luar masa

22/11/2023

Tuan Arun A/L Noval Dass

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1 DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA DALAM PERKARA PASCA KEBANKRAPAN: JA-29PB-385-06/2023 HON WAN FATT (Berniaga di bawah nama dan digelar sebagai WANG LOO MOTOR TRADING COMPANY) 1. KETUA PENGARAH INSOLVENSI 2. MOHD HAIL BIN ARBAIN … PLAINTIF … DEFENDAN-DEFENDAN ---------------------------------------------------------------------------------------------------- ALASAN PENGHAKIMAN ---------------------------------------------------------------------------------------------------- 22/11/2023 13:51:07 JA-29PB-385-06/2023 Kand. 17 S/N 4YazRpRhCkia6bKL73hCOA **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Pengenalan 1. Pemiutang Penghakiman (selepas ini dirujuk sebagai JC) telah memperolehi penghakiman muktamad terhadap Penghutang Penghakiman (selepas ini dirujuk sebagai JD) pada 28.12.2004. Lanjutan itu, Perintah Penerimaan dan Perintah Penghukuman telah diperintahkan terhadap JD pada 6.9.2007. JC telah memfailkan Borang Bukti Hutang dan Ketua Pengarah Insolvensi (selepas ini dirujuk sebagai KPI) telah memperakui RM57,676.66 setakat 6.9.2007 sebagai hutang JD terhadap JC. 2. Setakat ini, JC tidak pernah menerima sebarang bayaran berkenaan hutang JD tersebut. KPI juga tidak pernah isytiharkan sebarang dividen sejak pemfailan Borang Bukti Hutang tersebut. Selaras seksyen 33B(1) Akta Insolvensi 1967 (selepas ini dirujuk sebagai Akta Tersebut), pada 15.02.2023, KPI telah mengeluarkan Notis Tentang Niat untuk Mengeluarkan Perakuan Pelepasan di bawah seksyen 33A dan notis tersebut telah diterima oleh JC pada 21.3.2023. 3. Pada 3.4.2023, Peguam JC telah memfailkan Notis Bantahan Sipiutang menurut seksyen 33B(2) Akta Tersebut bertarikh 29.3.2023. Melalui surat bertarikh 10.5.2023, KPI menolak bantahan yang dikemukakan JC. 4. Pada 19.6.2023, Peguam JC memfailkan permohonan bagi menghalang KPI dari mengeluarkan sijil pelepasan di bawah seksyen 33A sebagaimana diperuntukkan di bawah seksyen 33B(4) Akta S/N 4YazRpRhCkia6bKL73hCOA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 Tersebut yang menjadi subjek perbicaraan di hadapan Mahkamah ini. Isu awalan: Sama ada permohonan JC kepada Mahkamah adalah di luar had masa yang ditetapkan menurut seksyen 33B(4) Akta Tersebut 5. Dalam Afidavit Balasan yang difailkan, KPI mengusulkan bantahan bahawa permohonan di Mahkamah hanya difailkan pada 19.6.2023. KPI berhujah bahawa surat pemberitahuan bantahan ditolak yang dikeluarkan oleh Jabatan Insolvensi Malaysia bertarikh 10.5.2023, telah dihantar serah secara pos berdaftar kepada peguam JC pada 15.5.2023 dan menerusi semakan “tracking” Pos Malaysia, serahan tersebut disempurnakan penyampaian pada 24.5.2023 (Eksibit DNSPP- 1 Lampiran 6). Maka, KPI berhujah bahawa tarikh akhir untuk pemfailan permohonan di Mahkamah adalah pada 14.6.2023. KPI berhujah lanjut bahawa permohonan JC yang difailkan pada 19.6.2023 adalah di luar tempoh had masa yang dibenarkan di bawah seksyen 33B(4) Akta Tersebut. 6. Peguam JC berhujah bahawa surat dari KPI bertarikh 10.5.2023 tidak pernah diterima oleh JC dan JC hanya dimaklumkan peguam JC, Tetuan Xin, Lin & Co berkenaan surat tersebut pada 8.6.2023. Memandangkan JC telah memfailkan permohonan untuk menghalang KPI pada 19.6.2023, maka permohonan tersebut adalah dalam tempoh masa yang ditetapkan menurut seksyen 33B(4) Akta Tersebut iaitu 21 hari dari tarikh JC dimaklumkan peguam JC pada 8.6.2023. 7. Seksyen 33B(4) Akta Tersebut memperuntukkan bahawa:- “(4) A creditor who has furnished a notice of his objection and the grounds of his objection in accordance with subsection (2) may, within twenty-one days of being informed by the Director General of Insolvency that his objection has been S/N 4YazRpRhCkia6bKL73hCOA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 rejected, make an application to the court for an order prohibiting the Director General of Insolvency from issuing a certificate of discharge.” 8. Dalam kes ini, berdasarkan eksibit DNSPP-1 lampiran 6, adalah jelas bahawa surat makluman KPI dalam menolak bantahan JC bertarikh 10.5.2023 telah hanya dihantar kepada peguam JC iaitu Tetuan Xin, Lin & Co dan bukan secara peribadi kepada JC. Persoalan yang perlu diputuskan Mahkamah adalah sama ada penyampaian surat kepada peguam JC dalam kes ini adalah teratur untuk memutuskan tempoh had masa 21 hari dari tarikh penerimaan peguam tersebut menurut seksyen 33B(4) Akta Tersebut. 9. Dalam hal ini, Mahkamah merujuk kepada Kaedah 63 Kaedah-kaedah Insolvensi 2017 (selepas ini dirujuk sebagai Kaedah Tersebut) yang memperuntukkan bahawa:- “(1) A solicitor suing out or serving any process or other document shall endorse thereon his name or that of his firm and the address at which he will accept service of documents on behalf of the party he represents. (2) Any process or other written communication which does not require personal service shall be deemed to be sufficiently served upon a party represented by a solicitor if left at the solicitor's address for service.” 10. Dalam hal ini, Mahkamah merujuk kepada surat peguam JC bertarikh 31.3.2023 (Eksibit HWF-1 lampiran 2) kepada KPI yang menyatakan bahawa:- “Dengan hormatnya, kami merujuk pihak Tuan kepada perkara di atas di mana kami mewakili Hon Wan Fatt….Kami juga merujuk kepada Notis Kepada S/N 4YazRpRhCkia6bKL73hCOA **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 Sipiutang Tentang Niat Untuk Mengeluarkan Perakuan Pelepasan yang diterima oleh anak guam kami pada 21.03.2023. 2. Bersama-sama ini kami kembarkan dokumen berikut untuk pemfailan:- (i) Satu salinan Notis Bantahan Pemiutang bertarikh 29.3.2023. 3. Kami juga dengan rendah diri memohon supaya pihak Tuan dapat memaklumkan kami berkenaan status akaun Bankrap, Mohd Hail Bin Arbain, yang di bawah kawalan pihak Tuan….” 11. Dalam penilaian Mahkamah, kandungan surat bertarikh 31.3.2023 tersebut dengan jelas memenuhi kaedah 63(1) di mana peguam JC setelah mengembarkan Notis Bantahan Pemiutang, telah memohon supaya makluman mengenai status akaun JD dimaklumkan kepada peguam JC. Isu seterusnya perlu diputuskan Mahkamah adalah sama ada penghantaran surat KPI bertarikh 10.5.2023 melalui pos berdaftar ke alamat firma peguam JC memenuhi keperluan Kaedah 63(2) Kaedah Tersebut. 12. Penelitian Mahkamah kepada Kaedah 63(2) Kaedah Tersebut menunjukkan bahawa sekiranya sesuatu dokumen tidak memerlukan penyampaian kediri kepada sesuatu pihak, maka sekiranya dokumen tersebut ditinggalkan di alamat firma peguam pihak tersebut, maka penyampaian tersebut dianggap penyampaian yang sempurna. Berbanding peruntukan seksyen 3 dan seksyen 6 Akta Tersebut yang memperuntukkan penyampaian kediri (“shall be served personally”) sebagai cara penyampaian mandatori Notis Kebankrapan dan Petisyen Pemiutang kepada seseorang JD, pembacaan Kaedah 63(2) Kaedah Tersebut yang menggunakan perkataan “if left” berbanding “shall be left” menunjukkan bahawa peninggalan dokumen di alamat firma S/N 4YazRpRhCkia6bKL73hCOA **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 bukannya satu-satunya kaedah penyampaian eksklusif yang dibenarkan. 13. Undang-undang adalah mantap bahawa peruntukan-peruntukan dalam Akta dan Kaedah-kaedah di bawahnya perlu ditafsir secara harmoni bagi menentukan niat penggubal dalam merangka peruntukan- peruntukan tersebut. Dalam hal ini, Mahkamah merujuk kepada kes Mudajaya Corporation Bhd v Leighton Contractors (M) Sdn Bhd [2015] 10 MLJ 745; [2015] 5 CLJ 848; [2015] MLRHU 223; [2015] 3 AMR 688 di mana Mahkamah memutuskan bahawa:- “[19] The first principle is that the legislation must be read as a whole; any specific provision must be read with or against the rest of the Act or in the case of any orders issued, such orders must be read against the substantive or parent Act. In so doing, the court must strive to give a harmonious reading to the law enacted by Parliament, and that would include any orders made by the relevant minister under that relevant law…” 14. Berdasarkan prinsip kes tersebut di atas, Mahkamah merujuk kepada seksyen 130 Akta Tersebut yang memperuntukkan bahawa:- “All notices and other documents for the service of which no special mode is prescribed may be sent by prepaid registered post letter to the last known address of the person to be served therewith.” 15. Mahkamah dapati seksyen 33B(4) Akta Tersebut tidak menyatakan secara spesifik bahawa pemakluman penolakan bantahan JC perlu dikemukakan secara kediri kepada JC. Maka, pembacaan seksyen 130 Akta Tersebut secara harmoni dengan Kaedah 63(2) Kaedah Tersebut menunjukkan bahawa KPI boleh menyampaikan surat penolakan bantahan tersebut dengan meninggalkan di alamat firma menurut Kaedah 63(2) Kaedah Tersebut dan sekiranya tindakan tersebut S/N 4YazRpRhCkia6bKL73hCOA **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 diambil, penyampaian tersebut akan dianggap penyampaian yang sempurna di bawah Kaedah tersebut. 16. Namun, sekiranya KPI menghantar surat tersebut secara Pos Berdaftar sebagaimana diperuntukkan dalam seksyen 130 Akta Tersebut, maka anggapan yang boleh dipatahkan wujud sebagaimana diperuntukkan di bawah seksyen 12 Akta Tafsiran 1948 & 1967 yang memperuntukkan bahawa:- “12. Where a written law authorises or requires a document to be served by post, then, until the contrary is proved, service: (a) shall be presumed to be effected by properly addressing, prepaying and posting by registered post a letter containing the document; and (b) shall be presumed to have been effected at the time when the letter would have been delivered in the ordinary course of the post.” 17. Dalam mentaksirkan peruntukan tersebut, Mahkamah Persekutuan dalam kes Goh Teng Whoo & Anor v Ample Objectives Sdn Bhd [2021] 3 MLJ 159; [2021] 4 CLJ 348; [2021] 2 MLRA 682; [2021] 3 AMR 881 memutuskan bahawa:- “[31]Section 12 of the Interpretation Acts must be read in its proper context. What it says is that where a document is served by registered post, service and time of service are "presumed" "until the contrary is proved". There is nothing in the section to say that posting by registered post is conclusive proof of service. What is clear is that it is a rebuttable presumption of law that can be displaced by evidence to the contrary. It is not an irrebuttable presumption that shuts out all forms of defence to the proof of posting. [32] Thus, if there is evidence that the defendant has not been served with the document, the presumption is rebutted and the court will make a finding that there has been no service of the document in an application for setting aside. It is anathema to the concept of justice and fair play that a defendant who has no knowledge of the action is attached with liability without S/N 4YazRpRhCkia6bKL73hCOA **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 being given the opportunity to explain why the default judgment should not be entered against him.” 18. Memandangkan KPI telah mengemukakan bukti melalui eksibit DNSPP- 1 lampiran 6 bahawa penyampaian surat penolakan bantahan tersebut melalui pos berdaftar telah disempurnakan penyampaian pada 24.5.2023 (melalui semakan “tracking” Pos Malaysia), maka KPI telah berjaya mengungkitkan anggapan penyampaian di bawah seksyen 12 Akta Tafsiran 1948 & 1967. Dalam kes ini, Mahkamah dapati peguam JC tidak pernah mengemukakan sebarang keterangan di hadapan Mahkamah bahawa surat penolakan yang diposkan secara pos berdaftar telah tidak diterima oleh firma peguam JC. Mahkamah percaya pendirian peguam JC adalah semata-mata bahawa tiada penyampaian surat penolakan tersebut kepada JC sendiri, walhal peguam JC sendiri memohon supaya sebarang maklum balas kes si bankrap dimaklumkan KPI kepada peguam JC sebagaimana dalam surat bertarikh 31.3.2023. 19. Sebagaimana dibincangkan di atas, Mahkamah memutuskan bahawa penyampaian surat penolakan bantahan JC kepada firma peguam JC melalui pos berdaftar adalah penyampaian sempurna berdasarkan pembacaan harmoni seksyen 130 Akta Tersebut dan Kaedah 63 Kaedah Tersebut. 20. Penyelidikan Mahkamah menunjukkan tidak terdapat sebarang kes yang diputuskan berkenaan keesahan penyampaian kertas kausa kepada peguam sesuatu pihak selaras dengan Kaedah 63 Kaedah Tersebut. Namun, secara analogi, Mahkamah-mahkamah telah secara konsisten memutuskan bahawa penyampaian kertas kausa melalui peguamcara sesuatu pihak adalah penyampaian yang teratur di bawah Aturan 62 Kaedah 13 Kaedah-kaedah Mahkamah 2012. Dalam hal ini, Mahkamah merujuk kepada kes CIMB Bank Berhad v Goh Tai Pak & S/N 4YazRpRhCkia6bKL73hCOA **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 Anor [2009] 1 LNS 1320; [2009] 11 MLRH 858; [2009] AMEJ 0332 di mana Mahkamah memutuskan bahawa:- “The question is whether the service on the solicitor acting for the 2nd defendant is tantamount to communication to the customer, in this case, the 2nd defendant. I should think so. O. 63 r. 13 of the Rules of the High Court 1980 provides as follows… [20] By rule 13 any document or written communication which ought to be delivered to or served on a party represented by a solicitor shall be delivered to or served on such solicitor. Although rule 13 speaks of a party who had initially sued or appeared in person but is now represented by a solicitor, in my opinion it would not make sense to exclude the application of this rule to those who have right from the beginning been represented by solicitors. In such cases, there is more reason for documents and written communications to be delivered or served on the solicitors acting for the party. In Pengurusan Danaharta Nasional Bhd v. Yong Wan Hoi & Anor (No 2) [2007] 9 CLJ 416; [2008] 7 MLJ 297 it was held that the service of the order for possession and the cause papers for the application on the solicitors acting for the defendants was sufficient in lieu of personal service. Similarly in Syarikat Perumahan Pegawai Kerajaan Sdn Bhd v. Sri Komakmur Sdn Bhd (No 2) [1998] 5 MLJ 756 the service on the solicitors, in lieu of personal service on the directors of the company, of an order of the court requiring the defendant company to specifically perform a contract was held to be proper. Following therefore from the provisions of rule 13 and the authorities referred to I am of the view that any document or written communication that have been communicated to the solicitor acting for the 2nd defendant would be as good as having been communicated to the 2nd defendant. Hence, the contention of the 2nd defendant that P.9 was not communicated to her does not hold water.” 21. Dalam nada yang sama, Mahkamah dalam kes Leung Kai Fook Medical Co Pte Ltd & Anor v Ninso Global Sdn Bhd [2023] MLJU 1704; [2023] 1 LNS 1531 memutuskan bahawa:- “[12] In my opinion, once a party has retained solicitors to act for it on a certain matter, then for as long as that retainer subsists that solicitor is authorised to act for it, on all matters for which it is retained. That is what would be within the reasonable contemplation of the client. Unless expressly excluded either by the client or the solicitor, I would think that that retainer impliedly includes accepting service of process and of all cause papers for the party, unless it expressly states otherwise. If the solicitors have then gone on to S/N 4YazRpRhCkia6bKL73hCOA **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 communicate with the opposite party or its solicitors, then any further communications by that party or its solicitors with the other or any steps they wish to take against the other, must be communicated to and through them… [17] In my opinion, the true underlying purpose and intent of Order 62 rule 1 is that, the moment a defendant, prospective or otherwise, gives notice to the plaintiff, prospective or otherwise, or its solicitors that it is being represented by solicitors, then all documents and cause papers shall be delivered to the solicitor, unless and until the plaintiff is informed that that solicitors has ceased to possess such authority to accept them. Should those solicitors not have such instructions, then they would surely notify the plaintiff's solicitors immediately and without any undue haste.” 22. Mahkamah berpendapat bahawa prinsip-prinsip yang diputuskan dalam kes-kes di atas adalah juga terpakai dalam prosiding di bawah Akta Insolvensi 1967, terutama dalam mentaksirkan peruntukan Kaedah 63 Kaedah Tersebut. Mahkamah berpendapat bahawa JC tidak seharusnya dibenarkan mengambil pendirian bertentangan dengan meminta Mahkamah mengesahkan pemfailan bantahan pemiutang di bawah seksyen 33B(2) Akta Tersebut oleh pihak peguam JC bagi pihak JC, dan pada masa yang sama meminta Mahkamah menolak penyampaian surat penolakan bantahan oleh KPI yang ditujukan kepada peguam JC yang sama bagi pihak JC. Berdasarkan alasan- alasan yang dinyatakan di atas, Mahkamah memutuskan bahawa penyampaian surat pemolakan bantahan tersebut melalui pos berdaftar yang telah disempurnakan penyampaian pada 24.5.2023 kepada peguam JC adalah penyampaian yang teratur. 23. Dengan demikian, sebagaimana dihujahkan KPI, JC seharusnya memfailkan permohonan di bawah seksyen 33B(4) Akta Tersebut di Mahkamah paling lewat pada 14.6.2023. Namun, dalam kes ini, permohonan JC hanya difailkan pada 19.6.2023. S/N 4YazRpRhCkia6bKL73hCOA **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 24. Penelitian Mahkamah kepada lampiran 1 juga menunjukkan bahawa JC tidak pernah memohon sebarang lanjutan masa untuk memfailkan permohonan menurut seksyen 33B(4) Akta Tersebut. Mahkamah sedia maklum bahawa seksyen 93(4) Akta Tersebut memberi bidang kuasa yang luas kepada Mahkamah ini untuk memberi sebarang lanjutan masa atas permohonan mana-mana pihak atau atas usul Mahkamah sendiri sekiranya terdapat merit untuk perlanjutan masa. Seksyen 93(4) Akta Tersebut memperuntukkan bahawa:- “(4) Where by this Act or by general rules the time for doing any act or thing is limited, the court may extend the time, either before or after the expiration thereof, upon such terms, if any, as to the court seems fit.” 25. Dalam membincangkan pemakaian seksyen 93(4) Akta Tersebut dalam konteks seksyen 33B Akta Tersebut, Mahkamah ini dalam kes Berkenaan: Murugaveloo Narayanan; Ex Parte: Alliance Bank Malaysia Berhad [2023] MLJU 32; [2023] MLRHU 78 memutuskan bahawa:- “[22] Perbandingan kedua-dua peruntukan tersebut dengan jelas menunjukkan bahawa apabila KPI mengeluarkan notis niat untuk mengeluarkan sijil pelepasan di bawah s 33A Akta Tersebut, pemiutang-pemiutang yang ingin membantah niat KPI tersebut adalah diwajibkan untuk mengemukakan bantahan kepada KPI dalam tempoh 21 hari dan tiada sebarang lanjutan masa yang boleh dipohon kerana perkataan yang digunakan adalah "shall". Maka, berdasarkan nas-nas di atas, peruntukan tersebut adalah mandatori dan Mahkamah tidak boleh bergantung kepada s 93(4) Akta Tersebut untuk sebarang perlanjutan masa. [23] Namun, apabila KPI menolak bantahan pemiutang tersebut, pemiutang wajar memfailkan permohonan kepada Mahkamah untuk menghalang KPI dari mengeluarkan sijil pelepasan dalam tempoh 21 hari dari tarikh penolakan bantahan tersebut. Namun, sekiranya berlaku kelewatan, Mahkamah masih S/N 4YazRpRhCkia6bKL73hCOA **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 mempunyai budi bicara untuk melanjutkan tempoh masa yang dinyatakan kerana perkataan yang digunakan adalah "may"… [24] Maka, Mahkamah boleh menggunakan budi bicara di bawah s 93(4) Akta Tersebut. Mahkamah dapati had masa 21 hari yang diperuntukkan di bawah s 33B(4) Akta Tersebut turut dinyatakan dalam Kaedah 196 dibaca bersama borang 98 Kaedah Tersebut. Maka, pemohon perlu menunjukkan bahawa terdapat keadaan khas dan sebab yang baik untuk melanjutkan masa sebagaimana diperutukkan di bawah k 283 Kaedah Tersebut: "The court may under special circumstances and for good cause shown extend or abridge the time appointed by these Rules or fixed by any order of the court for doing any act or taking any proceedings." [25] Mahkamah juga merujuk kepada kes Nazlan Hashim & Anor v. Mohamad Akmal Mohd Rashid [2015] MLRHU 1491 di mana Mahkamah memutuskan bahawa: "[24] The Rules Committee must have taken into consideration the fact that litigants may require more time to decide, whether to appeal against the decision of the High Court to the Court of Appeal. That must have been the reason that a period of thirty days is given for the litigant. The thirty days period is more than ample time. [25] In my opinion, where the period given is substantial, such as thirty days, an applicant seeking for an extension of time has an onerous burden to justify the delay, as opposed to a shorter period of time, such as fourteen days..." 26. Memandangkan tindakan kebankrapan mempunyai kesan yang serius terhadap kehidupan seseorang Penghutang Penghakiman, Mahkamah seharusnya mengkaji alasan-alasan kelewatan dengan ketat untuk melihat sama ada terdapat merit untuk melanjutkan tempoh masa yang ditetapkan di bawah seksyen 33B(4) Akta Tersebut. Dalam hal ini, Mahkamah merujuk kepada kes Mahkamah Rayuan Dato’ Ramesh Rajaratnam v Datin Zaleha Abd Rahman & Ors [2014] 6 MLJ 651; [2014] 5 CLJ 669; [2015] 1 MLRA 41 di mana Mahkamah memutuskan bahawa:- S/N 4YazRpRhCkia6bKL73hCOA **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 “It is trite that bankruptcy proceedings are quasi-penal in nature. Judgment creditors are obliged to strictly follow the provisions of the Act and/or rules unless the non-compliance is condonable pursuant to the Act and/or rules or fiat of case laws. (see Wee Chow Yang t/a Vienna Music Centre v. Public Finance Bhd [1989] 3 MLJ 508). In Sobri Arshad v. Associated Tractors Sdn Bhd [1991] CLJ 798; [1991] 3 CLJ (Rep) 756; [1991] 3 MLJ 32, Edgar Joseph Jr observed: On a concluding note, bearing in mind that bankruptcy proceedings, if successful, would have harsh and penal consequence meticulous compliance with the law is often necessary. The case of In re North ex-parte Hasluck is the authority for the proposition that the statute relating to bankruptcy should be construed in a manner most favourable to the person affected. Failure to comply may attract art. 5(1) of the Federal Constitution which reads as follows: No person shall be deprived of his life or personal liberty save in accordance with law.” 27. Malah, penelitian ketat terhadap alasan-alasan kelewatan menjadi lebih mustahak dalam kes ini memandangkan JD dalam kes ini sudah berusia 47 tahun dan berada dalam kebankrapan selama 16 tahun sejak Perintah Penerimaan dan Perintah Penghukuman pada 6.9.2007. Dalam hal ini, Mahkamah merujuk kepada kes Re Mohana Sundari M Subramaniam Ex P United Prime Corporation Bhd [2004] 5 MLJ 227; [2004] 1 CLJ 624; [2003] 3 MLRH 719; [2004] 2 AMR 141 di mana Mahkamah memutuskan bahawa:- “The judgment debtor has been a bankrupt for almost 14 years and that 14 years is a long period of penance by any measure. The judgment debtor is now currently 45 years of age and humbly desires to spend the remainder of her mortal life free from the shackles and stigma of bankruptcy that has plagued her for so many years…” 28. Penelitian Mahkamah kepada afidavit-afidavit JC menunjukkan bahawa tiada sebarang alasan munasabah yang diberikan JC dalam kelewatan S/N 4YazRpRhCkia6bKL73hCOA **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 memfailkan permohonan ini di Mahkamah. Terutamanya, tiada penjelasan dari peguam JC berkenaan kelewatan memaklumkan JC iaitu hanya pada 8.6.2023, walaupun keterangan di hadapan Mahkamah menunjukkan bahawa surat penolakan bantahan tersebut telah disampaikan kepada peguam JC seawal 24.5.2023. Mahkamah berpendapat bahawa kelewatan peguam JC memaklumkan berkenaan surat penolakan bantahan tersebut kepada anakguamnya hanya selepas hampir 14 hari tanpa sebarang alasan munasabah merupakan kelewatan yang tidak munasabah, lebih-lebih lagi apabila surat tersebut dengan jelas menyatakan keperluan JC untuk memfailkan permohonan di Mahkamah dalam tempoh 21 hari dari tarikh pemakluman penolakan bantahan oleh KPI. 29. Undang-undang adalah mantap bahawa salah satu tugas penting seseorang peguam adalah untuk memastikan tarikh-tarikh penting direkodkan dan seterusnya anakguam dinasihatkan dengan sewajarnya berkenaan tarikh-tarikh penting tersebut. Dalam hal ini, Mahkamah merujuk kepada kes Lim Soh Wah & Anor v Wong Sin Chong & Anor & Another Appeal [2001] 2 CLJ 344; [2001] 1 MLRA 116; [2001] 2 AMR 2001 di mana Mahkamah memutuskan bahawa:- “Advocates and solicitors undertake an onerous task when they agree to act for a client. There is an assumption of responsibility by the solicitor coupled with reliance by the client on the skill of the solicitor. The solicitor's duty to exercise reasonable care and skill is imposed both by contract and by the law of tort…One of the fundamental duties of a solicitor is to diarize his cases, keep his client informed of the diarized dates and prepare the case with the client.” S/N 4YazRpRhCkia6bKL73hCOA **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 30. Maka, atas alasan ini, Mahkamah berpendapat bahawa JC telah gagal menunjukkan keadaan khas dan sebab yang baik di bawah kaedah 283 Kaedah Tersebut untuk Mahkamah menggunakan budi bicara menurut seksyen 93(4) Akta Tersebut atas usul sendiri untuk melanjutkan masa bagi membolehkan permohonan JC di bawah seksyen 33B(4) Akta Tersebut didengar atas merit. Sekiranya Mahkamah membenarkan permohonan JC yang difailkan di luar tempoh masa yang dibenarkan tanpa sebarang alasan yang munasabah, maka perkara ini akan membuka “flood gate” untuk kesemua pihak memperlekehkan had masa yang ditetapkan menurut seksyen 33B(4) Akta Tersebut. Perkara ini bertentangan dengan polisi awam kerana akan menggagalkan niat parlimen dalam menetapkan had masa untuk seseorang JC membuat permohonan di Mahkamah. KESIMPULAN 43. Berdasarkan alasan-alasan yang dinyatakan di atas, Mahkamah menolak permohonan JC menurut seksyen 33B(6)(a) Akta Tersebut. Mahkamah menggunakan budi bicara untuk tidak mengenakan sebarang perintah terhadap kos. Bertarikh: 5 Oktober 2023 Disediakan oleh, …………………………………. ARUN A/L NOVAL DASS Timbalan Pendaftar Mahkamah Tinggi Malaya S/N 4YazRpRhCkia6bKL73hCOA **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 Johor Bahru Pihak-pihak: 1. Tetuan Xin, Lin & Co Peguamcara Pemiutang Penghakiman/ Pemohon No.43B, 1st Floor, Jalan Tuanku Munawir 70000 Seremban, Negeri Sembilan [No Ruj: XLC/S/SL/22051] … Puan Tan Shi Lin 2. Ketua Pengarah Insolvensi Aras 12, Menara Tabung Haji, Jalan Ayer Molek, Johor Bahru, Johor [No Ruj:-] … Puan Rosaziana Binti Mohd Salleh S/N 4YazRpRhCkia6bKL73hCOA **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 Kes-kes yang dirujuk: 1. Mudajaya Corporation Bhd v Leighton Contractors (M) Sdn Bhd [2015] 10 MLJ 745; [2015] 5 CLJ 848; [2015] MLRHU 223; [2015] 3 AMR 688 2. Goh Teng Whoo & Anor v Ample Objectives Sdn Bhd [2021] 3 MLJ 159; [2021] 4 CLJ 348; [2021] 2 MLRA 682; [2021] 3 AMR 881 3. CIMB Bank Berhad v Goh Tai Pak & Anor [2009] 1 LNS 1320; [2009] 11 MLRH 858; [2009] AMEJ 0332 4. Leung Kai Fook Medical Co Pte Ltd & Anor v Ninso Global Sdn Bhd [2023] MLJU 1704; [2023] 1 LNS 1531 5. Berkenaan: Murugaveloo Narayanan; Ex Parte: Alliance Bank Malaysia Berhad [2023] MLJU 32; [2023] MLRHU 78 6. Dato’ Ramesh Rajaratnam v Datin Zaleha Abd Rahman & Ors [2014] 6 MLJ 651; [2014] 5 CLJ 669; [2015] 1 MLRA 41 7. Re Mohana Sundari M Subramaniam Ex P United Prime Corporation Bhd [2004] 5 MLJ 227; [2004] 1 CLJ 624; [2003] 3 MLRH 719; [2004] 2 AMR 141 8. Lim Soh Wah & Anor v Wong Sin Chong & Anor & Another Appeal [2001] 2 CLJ 344; [2001] 1 MLRA 116; [2001] 2 AMR 2001 S/N 4YazRpRhCkia6bKL73hCOA **Note : Serial number will be used to verify the originality of this document via eFILING portal Isu awalan: Sama ada permohonan JC kepada Mahkamah adalah di luar had masa yang ditetapkan menurut seksyen 33B(4) Akta Tersebut Bertarikh: 5 Oktober 2023 Pihak-pihak:

Tika 2.6.0

WA-22NCC-391-08/2020

PLAINTIF WRP Asia Pacific Sdn Bhd DEFENDAN 1. ) Lee Son Hong 2. ) Too Sooi Keng 3. ) KSG Engineering Sdn Bhd 4. ) TSEN KET SHUNG @ KON SHUNG 5. ) Kok Mee Yen

Companies and Corporations — Directors' Duties — Directors’ duties to act honestly and in best interests of company — Whether directors acted in breach of statutory duties, fiduciary duties, common law duties — Whether directors failed to act in good faith and in the best interest of company — Whether such failure caused losses and damages to company — Defendants' failure to testify — Whether defendants liable — Companies Act 2016 s 213, 214, 221, 218 and 219

22/11/2023

YA Puan Liza Chan Sow Keng

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=7db8863a-d5c6-47dd-999c-ce63192c66df&Inline=true

IN THE HIGH COURT OF MALAYSIA AT KUALA LUMPUR (COMMERCIAL DIVISION) CIVIL SUIT NO.: WA-22NCC-391-08/2020 BETWEEN WRP ASIA PACIFIC SDN BHD (COMPANY NO.: 147817-V) … PLAINTIFF AND 1. LEE SON HONG (NRIC NO.: 570226-08-5145) 2. TOO SOOI KENG (NRIC NO.: 570713-08-6532) 3. KSG ENGINEERING SDN BHD (COMPANY NO.: 922460-A) 4. TSEN KET SHUNG @ KON SHUNG (NRIC NO.: 710719-12-5119) 5. KOK MEE YEN (NRIC NO.: 660907-05-5194) … DEFENDANTS GROUNDS OF JUDGMENT Introduction [1] This action was filed on 19.8.2020 against the 1st Defendant (“D1”), 2nd Defendant (“D2”) and three other Defendants inter alia, for breach of fiduciary duties, conspiracy to injure the Plaintiff by unlawful means and dishonest assistance. 22/11/2023 08:51:01 WA-22NCC-391-08/2020 Kand. 269 S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 [2] The Plaintiff has discontinued the action against KSG Engineering Sdn Bhd (“KSG”) the 3rd Defendant, the 4th Defendant and the 5th Defendant (D5). Consequently, the Statement of Claim (“SOC”) was amended to drop the claims of conspiracy to injure the Plaintiff by unlawful means and dishonest assistance. [3] The Plaintiff seeks inter alia the following relief against D1 and D2: 3.1 A declaration that D1 and/or D2 breached their fiduciary duties as directors of the Plaintiff; 3.2 A declaration that D1 and D2 are jointly and severally liable to make payment and/or account for the sum of RM13,100,000.00; 3.3 An order that D1 and/or D2 pay the sum of RM13,100,000.00 to the Plaintiff; 3.4 damages, interest and costs. [4] During trial lasting 7 non-consecutive days, the Plaintiff called 10 witnesses to give evidence in support of its claim. Both D1 and D2 did not testify nor called any witness . Background facts [5] The Plaintiff, is a company incorporated in Malaysia carrying on business in manufacturing and marketing of disposable medical, industrial S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 and other specialty gloves, urological catheters and other related products and services. [6] D1 and D2 are husband and wife. Both D1 and D2 were at all material times directors and shareholders of the Plaintiff. Together, they had majority control of the Plaintiff’s Board of Directors. D1 was the Managing Director (“MD”) and the Chief Executive Officer (“CEO”) of the Plaintiff and was responsible for the day-to-day management of the Plaintiff’s business operations. [7] Equatorion Sdn Bhd (“Equatorion”) is a company related to D1 and D2. D2 is a major shareholder of Equatorion, controlling 66.7% of its shareholding. D1 and/or D2 were also former directors and/or shareholders of Advanced Healthcare Products Sdn Bhd (“AHP”), Advanced Medical Products Sdn Bhd (“AMP”), Asia Cosmopolitan Sdn Bhd (“Asia Cosmopolitan”) and Grand Ten Holdings Sdn Bhd (“GTH”). [8] KSG is a company incorporated in Malaysia, involved in engineering works, producing and assembling of glove machines and supplies glove machinery parts. [9] The Plaintiff alleged that: 9.1 D1 and D2 had caused the Plaintiff to enter into several transactions and/or agreements with KSG to supply glove dipping lines 9, 10, 11 and 12 (“the factory lines”) to the Plaintiff’s Factory 3, fraudulently priced at RM 8,196,000.00 S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 for each line which included the price of the auxiliary equipment of the factory lines without intention that the auxiliary equipment will be supplied, installed and commissioned by KSG. Each factory line was priced at RM4,000,000.00 extra; 9.2 D1 and D2 caused the Plaintiff and its financiers Maybank Berhad, Tokyo Century Capital (Malaysia) Sdn Bhd and Pac Lease Berhad to pay KSG a total sum of RM32,784,000.00 for the factory lines. KSG then channelled a sum RM13,100,000.00 to Equatorion, purportedly for Equatorion’s supply of auxiliary equipment which Equatorion did not; thus causing a loss of RM13,100,000.00 to the Plaintiff; 9.3 D1 and D2 controlled Equatorion through relatives and staff of the Plaintiff; and 9.4 D1 and D2 made a secret profit of RM13,100,000.00 at the Plaintiff’s expense; 9.5 D1 and D2’s actions are in breach of their duties as directors to the Plaintiff; and 9.6 The Plaintiff has suffered loss arising from D1 and D2’s breaches of duties . S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 [10] D1 and D2’s Defence essentially is one of denial and summarised as follows: 10.1 deny any fraudulent overpayment as alleged by the Plaintiff as it would have been the Financiers who paid for the same. The Financiers would have inspected and valued the factory lines (including any auxiliary equipment) and had never raised any issue or concern on overpricing or missing equipment; 10.2 The Plaintiff had approved the supply of auxiliary equipment in its ordinary course of business. At all material times, D1 as MD and CEO is empowered to commit the Plaintiff into the said transactions; 10.3 The Plaintiff’s action based on transactions in 2013 is statute barred; 10.4 the Plaintiff is was not the right party to bring the action, the proper plaintiff should have been the financiers as the factory lines are owned by the financiers. [11] D1’s solicitors discharged themselves before trial was completed. As alluded earlier, D1 and D2 did not testify. In my view, it becomes a question whether the Plaintiff has made out a prima facie case against them. D1 and D2 are entitled to rely on the Plaintiff’s evidence. This is because, in S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 discharging its evidential burden in a civil case, one party’s evidence is the other’s as well. See: (a) Tan Kah Khiam v Liew Chin Chuan & Anor [2007] 2 MLJ 445 (CA) at [3]; (b) Md Hilmi bin Md Noor v Azman bin Ahmad & Ors [2016] 6 MLJ 205 (CA) at [23-24]; (c) Tenaga Nasional Berhad v Bukit Lenang Development Sdn Bhd [2017] MLJU 782 (CA) at [66]; and (d) U-RE Auto Sdn Bhd v York Pacific Holdings Ltd [2004] 3 CLJ 172 (CA) Issues [12] D2 filed a post trial submission, D1 did not. It can be gleaned from D2’s post trial submission that she has abandoned the limitation and locus standi points. [13] Thus the issues to be determined in my view boil down to 2 as follows: 13.1 Whether D1 and D2 have breached their duties as directors of the Plaintiff in causing the payment of a sum of RM13,100,000 to Equatorion for the purported supply of auxiliary equipment; and S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 13.2 If issue 1 is answered in the affirmative, whether the Plaintiff had suffered losses as a result of D1 and D2’s breaches and if so, liable to compensate the Plaintiff for such losses. Burden of proof [14] In Dato’ Pardip Kumar Kukreja & Anor v Vell Paari a/l Samy Vellu [2016] 4 MLJ 649; [2015] 1 LNS 1482 CA, Vernon Ong JCA (later FCJ) succinctly explained: [24] It is settled law that the party who desires the court to give judgment as to any legal right or liability bears the burden of proof (s 101(1) of the Evidence Act 1950). The burden of proof is on that party is twofold: (a) the burden of establishing a case; and (b) the burden of introducing evidence. The burden of proof lies on the party throughout the trial. The standard of proof required of the plaintiff is on the balance of probabilities. The evidential burden of proof is only shifted to the other party once that party has discharged its burden of proof. If that party fails to discharge the original burden of proof, then the other party need not adduce any evidence. In this respect it is the plaintiff who must establish his case. If he fails to do so, it will not do for the plaintiffs to say that the defendants have not established their defence (Selvaduray v Chinniah [1939] 1 MLJ 253 (CA); s 102 of the Evidence Act 1950). On the effect of the burden of proof not being discharged, Terrell Ag CJ in Selvaduray v Chinniah, adopting the position stated by the Court of Appeal in Abrath v North Eastern Railway Co [1883] 11 QBD 440 said: S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 In such a case as the present the position has been clearly stated in the judgment of Brett MR in Abrath v North Eastern Railway Co [1883] 11 QBD 440 at p 452: But then it is contended (I think fallaciously), that if the plaintiff has given prima facie evidence, which, unless it be answered, will entitle him to have the question decided in his favour, the burden of proof is shifted on to the defendant as the decision of the question itself. This contention seems to be the real ground of the decision in the Queen’s Bench Division. I cannot assent to this. It seems to me that the propositions ought to be stated thus: the plaintiff may give prima facie evidence which, unless it be answered either by contradictory evidence or by the evidence of additional facts, ought to lead the jury to find the question in his favour: the defendant may give evidence either by contradicting the plaintiff’s evidence or by proving other facts: the jury have to consider upon the evidence given upon both sides, whether they are satisfied in favour of the plaintiff with respect to the question which he calls them to answer; if they are, they must find for the plaintiff; but if upon consideration of the facts they come clearly to the opinion that the question ought to be answered against the plaintiff; they must find for the defendant. Then comes this difficulty — suppose that the jury, after considering the evidence, are left in real doubt as to which way they are to answer the question put to them on behalf of the plaintiff: in that case also the burden of proof lies upon the plaintiff, and if the defendant has been able by the additional facts which he has adduced to bring the minds of the whole jury to a real state of doubt, the plaintiff has failed to satisfy the burden of proof which lies upon him. S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 [15] The Federal Court in Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697; [2017] 5 CLJ 418 FC speaking through Jeffrey Tan FCJ at [48] to [63] offers valuable guidance on this subject. Particularly at [56] and [57], His Lordship elucidated: “[56] Thus, a plaintiff has both the burden of proof as well as the initial onus of proof. In Britestone Pte Ltd v Smith & Associates Far East, Ltd [2007] 4 SLR 855, the Singapore Court of Appeal per VK Rajah JCA, delivering the judgment of the court, explained that at the start of the plaintiff’s case the burden of proof and the onus of proof coincide: … at the start of the plaintiff’s case, the legal burden of proving the existence of any relevant fact that the plaintiff must prove and the evidential burden of some (not inherently incredible) evidence of the existence of such fact coincide. Upon adduction of that evidence, the evidential burden shifts to the defendant, as the case may be, to adduce some evidence in rebuttal. If no evidence in rebuttal is adduced, the court may conclude from the evidence of the defendant. If, on the other hand, evidence in rebuttal is adduced, the evidential burden shifts back to the plaintiff. If, ultimately, the evidential burden comes to rest on the defendant, the legal burden of proof of the relevant fact would have been discharged by the plaintiff. The legal burden of proof — a permanent and enduring burden — does not shift. A party who has the legal burden of proof on any issue must discharge it throughout. Sometimes, the legal burden is spoken of, inaccurately, as ‘shifting’; but what is truly meant is that another issue has been engaged, on which the opposite party hears the legal burden of proof. S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 [57] The rule is that ‘the onus of proof of any particular fact lies on the party who alleges it, not on him who denies it; et incumbit probation qui decit, non qui negat, Actori incibit probation … The plaintiff is bound in the first instance, to show a prima facie case, and if he leaves it imperfect, the court will not assist him. Hence the maxim Potior est condition defendantis. A plaintiff cannot obviously advantage himself by the weakness of the defence. A plaintiff’s case must stand or fall upon the evidence adduced by him. When, however, the defendant, or either litigant party, instead of denying what is alleged against him, relies on some new matter which, if true, is an answer to it, the burden of proof changes sides; and he, in his turn, is bound to show a prima facie case at least and, if he leaves it imperfect, the court will not assist him. Reus excipendo fit actor’ (Woodroffe and Amir Ali, Vol 3 at pp 3190-3191). (Emphasis added) [16] See also [17] of Yeohata Machineries Sdn Bhd & Anor v Coil Master Sdn Bhd & Ors [2015] 6 MLJ 810 CA, also a judgment of Vernon Ong JCA (later FCJ): “… there must be some preponderance in the plaintiffs’ favour at the conclusion of the whole case. Even if the plaintiffs had established a prima facie case, but if at the conclusion of the trial the court finds that the position was exactly even, then any preponderance in favour of the plaintiffs has ceased to exist. If that happens, then the plaintiffs have failed to discharge the burden of proof which is upon it, and the plaintiffs must necessarily fail (Abrath v The North Eastern Railway Co (1883) 11 QBD 440, at p 452).” [17] I would thus remind myself that if the Plaintiff does not discharge its burden of showing a prima facie case, the claim would be dismissed notwithstanding whether the defence is or is not established. I now deal with the issues. S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 Director’s duties and fiduciaries [18] The Federal Court in Board of Trustees of the Sabah Foundation & Ors v Datuk Syed Kechik bin Syed Mohamed & Anor [2008] 5 MLJ 469 at [30] has adopted Millet LJ ‘s definition of a fiduciary in Bristol and West Building Society v Mothew (t/a Stapley & Co) [1998] Ch 1 at p 11 as follows: A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of the fiduciary. The nature of the obligation determines the nature of the breach. The various obligations of a fiduciary merely reflect different aspects of his mere core duties of loyalty and fidelity. Breach of fiduciary obligation, therefore, connotes disloyalty or infidelity competence is not enough. A servant who loyally does his incompetent best for his master is not unfaithful and is not guilty of a breach of fiduciary duty.” [19] The law is clear that a director of a company is in fiduciary relationship with his company and as such he is precluded from acting in a manner which will bring his personal interest into conflict with that of his S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 company - per Salleh Abas LP in Avel Consultants Sdn Bhd & Anor v Mohamed Zain Yusof & Ors [1985] 2 MLJ 209 SC. [20] In Ford's Principles of Corporations Law in Chapter 8 at para [8.050] at p 312, a director is subject to the fiduciary's duty of loyalty and the duty to avoid conflicts of interest. Walter Woon on Company Law states that: Firstly, a director must act in what he honestly considers to be the company’s interests and not in the interests of some other person or body. This is a director’s main and overriding duty at common law; Secondly, a director must employ the powers and assets that he is entrusted with for proper purposes and not for any collateral purpose; Thirdly, a director must not place himself in a position whereby his duty to the company and his personal interests may conflict. [21] Section 213(1) Companies Act 2016 (“CA 2016’) requires directors to exercise their powers in good faith and in the best interests of the company whilst s 213 (2) provides directors must exercise reasonable care, skill and diligence: “Section 213(1) CA 2016: (1) A director of a company shall at all times exercise his powers in accordance with this Act, for a proper purpose and in good faith in the best interest of the company. (2) A director of a company shall exercise reasonable care, skill and diligence with: (a) The knowledge, skill and experience which may reasonably be expected of a director having the same responsibilities; and S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 (b) Any additional knowledge, skill and experience which the director in fact has.” [22] In Pioneer Haven Sdn Bhd v Ho Hup Construction Co Bhd & Anor and other appeals [2012] 3 MLJ 616 at p 654 the Court of Appeal held that ss 132(1) and 132(1A) [re- enacted as s 213 (1) and (2) CA 2016] do not alter the law in this area but enhance the common law duty of care and equitable fidicuary duties. The Court of Appeal said at para 233: … The prior provision of s 132(1) requires a director to act honestly. The current s 132(1) of the Act, requires a director to act in good faith in the best interests of the company. It is accepted that for all intents and purposes, the scope of the directors’ duties to act honestly under the old s 132(1) and the new s 132(1) are the same. Thus the old case law relating to the duty to act honestly continues to be relevant (see Cheam Tat Pang v Public Prosecutor [1996] 1 SLR 541). It is also recognised that the duty to act in the best interests of the company means different things, depending on the factual circumstances. [23] The statutory no conflict rule encapsulated in s. 221(1) CA 2016 (s. 131 of the CA 1965) mandates disclosure where a director is in any way whether directly or indirectly interested in a transaction with the company. It reads: “Section 221 CA 2016: (1) Subject to this section, every director of a company who is in any way, whether directly or indirectly, interested in a contract or proposed contract with the company shall, as soon as practicable after the relevant facts have come to the director's knowledge, declare the nature of his interest at a meeting of the board of directors.” S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 [24] Section 221(9) CA 2016 makes plain that interest in the shares of a company include that of a spouse. [25] The learned author Dato’ Loh Siew Cheang in ‘Corporate Powers Accountability’ explained the no-conflict and underlying fiduciary principle as follows: “14-4 The no-conflict principle embodies two fundamental themes. First, directors cannot engage in 'self-dealings' or enter into transactions with a company in which they are directly or indirectly interested. Second, directors cannot make improper use of their office, company's property or information to make profits for themselves directly or indirectly. This is commonly known as the no-profit rule. There are many ways in which directors may misuse their office to benefit themselves-from usurpation of corporate opportunities, receiving bribes or commission and misapplying company's property. The rule prohibiting undisclosed self-dealings and secret profits is a positive rule. 14-5 The underlying fiduciary principle against the abuse of office is well established. In Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o Pennusamy & Ors (on their behalf and for the 213 sub-purchasers of plots of land known as PN35553, Lot 9108, Mukim Hutan Melintang, Hilir Perak) and other appeals, the Federal Court said: [69] It is trite law that a person in a fiduciary position is not entitled to make a profit and he is not allowed to put himself in a position where his interest and duty are in conflict. In Boardman v Phipps [1966] 3 WLR 1009 Lord Hodson explained the rule as follows: Whether this aspect is properly to be regarded as part of the trust assets is, in my judgment, immaterial. The appellants obtained knowledge by reason of their fiduciary position and they cannot S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 escape liability by saying that they were acting for themselves and not as agents of the trustees. Whether or not the trust or the beneficiaries in their stead could have taken advantage of the information is immaterial, as the authorities clearly show. No doubt it was but a remote possibility that Mr Boardman would ever be asked by the trustees to advice on the desirability of an application to the Court in order that the trustees might avail themselves of the information obtained. Nevertheless, even if the possibility of conflict is present between personal interest and the fiduciary position the rule of equity must be applied. This appears from the observations of Lord Cranworth LC in Aberdeen Railway Co v Blaikie 1 Macq 461, 471. In the later case of Bray v Ford [1896] AC 44 Lord Herschell ... said: It is an inflexible rule of a Court of Equity that a person in a fiduciary position, such as the respondent's is not, unless otherwise expressly provided, entitled to make a profit; he is not allowed to put himself in a position where his interest and duty conflict. It does not appear to me that this rule is, as has been said, founded upon principles of morality. I regard it rather as based on the consideration that human nature being what it is, there is danger, in such circumstances, of the person holding a fiduciary position being swayed by interest rather than by duty, and thus prejudicing those whom he was bound to protect. It has, therefore, been deemed expedient to lay down this positive rule. But I am satisfied that it might be departed from in many cases, without any breach of morality, without any wrong being inflicted, and without any consciousness of wrong-doing. Indeed, it is obvious that it might sometimes be to the advantage of the beneficiaries that their trustee should act for them professionally rather than a stranger, even though the trustee were paid for his services. [Emphasis added] S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 14-6 In Furs Ltd v Tomkies, the High Court of Australia explained the rationale as follows: No director shall obtain for himself a profit by means of a transaction in which he is concerned on behalf of the company unless all the material facts are disclosed to the shareholders and by resolution in a general meeting approves of his doing so, or all the shareholders acquiesce. An undisclosed profit which a director so derives from the execution of his fiduciary duties belongs in equity to the company. It is no answer to the application of the rule that the profit is of a kind which the company could not itself have obtained, or that no loss is caused to the company by the gain of the director. It is a principle resting upon the impossibility of allowing the conflict of duty and interest which is involved in the pursuit of private advantage in the course of dealing in a fiduciary capacity with the affairs of the company. If, when it is his duty to safeguard and further the interests of the company, he uses the occasion as a means of profit to himself, he raises an opposition between the duty he has undertaken and his own self interest, beyond which it is neither wise nor practicable for the law to look for a criterion of liability. The consequences of such a conflict are not discoverable. Both justice and policy are against their investigation. [Emphasis added]” [26] The common law no-profit rule is also statutorily embodied in s. 218(1) CA 2016 which stipulates: “Section 218 Prohibition against improper use of property, position, etc. (1) A director or officer of a company shall not, without the consent or ratification of a general meeting- (a) use the property of the company; S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 (b) use any information acquired by virtue of his position as a director or officer of the company; (c) use his position as such director or officer; (d) use any opportunity of the company which he became aware of, in the performance of his functions as the director or officer of the company; or (e) engage in business which is in competition with the company, to gain directly or indirectly, a benefit for himself or any other person, or cause detriment to the company.” [27] Nallini Pathmanathan JCA (now FCJ) in Taz Logistics Sdn Bhd v Taz Metals Sdn Bhd & Ors [2019] 3 MLJ 510; [2019] 2 CLJ 48 explained the ‘no profit rule’ as follows: “[112] The landmark case and starting point for the no profit rule must be Regal (Hastings) Ltd v. Gulliver and Others [1942] 1 All ER 378 more particularly the speech of Lord Russell where he explained the rule: ... The rule of equity which insists on those, who by use of a fiduciary position make a profit, being liable to account for that profit, in no way depends on fraud, or absence of bona fides; or upon such questions or considerations as whether the profit would or should otherwise have gone to the plaintiff or whether the profiteer was under a duty to obtain the source of the profit for the plaintiff, or whether he took a risk or acted as he did for the benefit of the plaintiff, or whether the plaintiff has in fact been damaged or benefited by his action. The liability arises from the mere fact of a profit having, in the stated circumstances, been made. The profiteer, however honest and well-intentioned, cannot escape the risk of being called upon to account.” (emphasis added) S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 [28] As D2 in her submissions had referred to the business judgment rule in s. 214 CA 2016, it is best that this court reproduce it for ease of reference: “214. Business Judgment Rule (1) A Director who make a business judgment is deemed to meet the requirement of the duty under Section 213(2) and the equivalent duties of the common law and in equity if the director– (a) Makes the business decision for a proper purpose and in good faith; (b) Does not have a material personal interest in the subject matter of the business decision; (c) Is informed about the subject matter of the business judgment to the extent the director reasonably believes to be appropriate under the circumstances; (d) Reasonably believes the business judgment is in the best interest of the company. (2) For the purposes of this section, “business judgment” means any decision whether or not to take action in respect of a matter relevant to the business of the company.” [29] In Petra Perdana Berhad v. Tengku Dato’ Ibrahim Petra Tengku Indra Petra & Ors [2014] 11 MLJ 1; Nallini Pathmanathan J (now FCJ) succinctly explained the duties of directors to exercise their powers in good faith and in the best interests of the company and the business judgment rule pursuant to ss132 (1), (1A) and (1B) of the Companies Act 1965, (re-enacted S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 as ss 213(1), (2) and 214 CA 2016 respectively) which I produce in extenso as follows: “[212] In Pioneer Haven Sdn Bhd v. Ho Hup Construction Co Bhd & Anor and Other Appeals [2012] 4 MLRA 210; [2012] 3 MLJ 616 at 654; [2012] 5 CLJ 169 the Court of Appeal held that ss 132(1) and 132(1A) do not alter the law in this area but enhance the common law duty of care and equitable fiduciary duties. At para 233, p 654 this is what the Court said: "...The prior provision of s 132(1) requires a director to act honestly. The current s 132(1) of the Act, requires a director to act in good faith in the best interests of the company. It is accepted that for all intents and purposes, the scope of the directors' duties to act honestly under the old s 132(1) and the new s 132(1) are the same. Thus, the old case law relating to the duty to act honestly continues to be relevant (see Cheam Tat Pang v. Public Prosecutor [1996] 1 SLR 541). It is also recognised that the duty to act in the best interests of the company means different things, depending on the factual circumstances." [213] And the test to be adopted in determining whether there was a breach of such statutory duty was defined as follows at para 238 at p 655: “[238] ... The test is nicely condensed in Ford's Principles of Corporations Law (para 8.060), that there will be a breach of duty if the act or decision is shown to be one which no reasonable board could consider to be within the interest of the company. [239] This test is adopted in Charterbridge Corpn Ltd v. Lloyds Bank Ltd [1970] Ch 62 at p 74, in that, to challenge a decision of the directors the test is whether: “....an intelligent and honest man in the position of the director of the company concerned, could in the whole of the existing circumstances have reasonably believed that the transactions were for the benefit of the company." [240] The above principle is often referred to as the 'Charterbridge Principle'. S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 ………… [242] It is important to note, following high authority, such as Howard Smith Ltd v. Ampol Petroleum Ltd [1974] AC 821, that the court does not substitute its own decision with that of the directors, since the decision of the directors to enter into the JDA is a management decision.” [214] This encapsulates the core of the duties owed by director under statute. [215] Of relevance in the instant case is the statutory business judgment rule in s 132(1B) which states as follows: "A director who makes a business judgment is deemed to meet the requirements of the duty under subsection (1A) and the equivalent duties under the common law and in equity if the director: (a) Makes the business judgment in good faith for a proper purpose; (b) Does not have a material personal interest in the subject matter of the business judgment; (c) Is informed about the subject matter of the business judgment to the extent the director reasonably believes to be appropriate under the circumstances; and (d) Reasonably believes that the business judgment is in the best interests of the company." [216] The statutory business judgment rule encapsulates the common law business judgment rule as set out in Howard Smith Ltd v. Ampol Ltd [1974] AC 821. In that case there was a challenge to the validity of an issue of shares by the directors of a company. The Court had to decide whether the said directors had been motivated by any purpose or personal gain or advantage or whether they had acted bona fide in the interests of the company. The judge found that the primary purpose of the allotment was to proportionately reduce the shareholdings of certain majority shareholders such S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 that a take-over could be facilitated by another entity. It was found in those circumstances that the directors had improperly exercised their powers. The matter proceeded to the Privy Council where the Judicial Committee found, dismissing the appeal that, although the directors had acted honestly and had power to make the allotment, to alter a majority shareholding was to interfere with an element of the company's constitution which was separate from the directors' powers and accordingly it was unconstitutional for the directors to use their fiduciary powers over the shares in the company for the purpose of destroying an existing majority or creating a new majority. And since the directors' primary object for the allotment of shares was to alter the majority shareholding, the directors had improperly exercised their powers and the allotment was invalid. [217] In so holding the Judicial Committee commented inter alia, in relation to the business judgment rule as follows: ".... In order to assist him in deciding upon the alternative motivations contended for, the judge considered first at some length, the objective question whether Millers was in fact in need of capital. This approach was criticised before their Lordships: it was argued that what mattered was not the actual financial condition of Millers, but what the majority directors bona fide considered that condition to be. Their Lordships accept that such a matter as the raising of finance is one of management, within the responsibility of the directors: they accept that it would be wrong for the court to substitute its opinion for that of the management, or indeed to question the correctness of the management's decision on such a question, if bona fide arrived at. There is no appeal on merits from management decisions to courts of law: nor will courts of law assume to act as a kind of supervisory board over decisions within the powers of management honestly arrived at. S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 But accepting all of this, when a dispute arises whether directors of a company made a particular decision for one purpose or another, or whether there being more than one purpose, one or other purpose was the substantial or primary purpose, the court, in their Lordships' opinion, is entitled to look at the situation objectively in order to estimate how critical or pressing or substantial or, per contra, insubstantial an alleged requirement might have been. If it finds that a particular requirement, though real, was not urgent, or critical, at the relevant time, it may have reason to doubt, or discount the assertions of individuals that they acted solely in order to deal with it, particularly when the action they took was unusual or even extreme." [218] …… Fiduciary duties [219] A company director is recognised as having a fiduciary relationship with his company. As stated in Ford's Principles of Corporations Law in Chapter 8 at para [8.050] at p 312, a director is therefore subject to the fiduciary's duty of loyalty and the duty to avoid conflicts of interest. Case-law establishes under the scope of a director's fiduciary duty that he must exercise his powers bona fide and in the best interests of the company as a whole. This is similar to, and captured by the duties imposed by statute (see s 132(1) above). The essence of the fiduciary duty is a duty to act bona fide in the interests of the company and not for a collateral purpose (see In Re Smith and Fawcett, Limited [1942] 1 Ch 304 at pp 306 and 308 and Multi-Pak Singapore Pte Ltd (in receivership v. Intraco Ltd & Ors [1994] 2 SLR 282 at p 287). Although the directors are vested with powers which carry implicitly some degree of discretion, such powers must be exercised bona fide, meaning for the purpose for which they were conferred and not arbitrarily or at the will of the directors, but in the interests of the company. (See S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 Greenhalgh v. Ardene Cinemas Ltd [1951] Ch 287 at 291; Blackwell v. Moray and Anor (1991) 3 ACSR 255). Did Tengku Ibrahim, Lawrence Wong and Tiong who were directors of the Plaintiff at the material time exercise their powers for a proper purpose or for an improper purpose when they decided to undertake the Second and Third Divestments? [220] If the impugned directors exercised their powers for a proper purpose, it then follows that they acted bona fide in the interest of the company. If, however they exercised their powers for an improper purpose as is alleged by the Plaintiff, then they have failed to act in the best interests of the company and would be in breach of their statutory, fiduciary and common law duties as directors. [221] In order to answer this question in relation to the two divestments this Court needs to ascertain the substantial object or purpose for which the board decided to divest of the PEB shares. (see Howard Smith Ltd v. Ampol Ltd (above). [222] In ascertaining the substantial object or purpose for which each of these three directors decided to divest of the PEB shares, it is necessary to ascertain their individual states of mind at the time when the decision to undertake the Divestments was made. In ascertaining the state of mind of the directors, regard may be had to the circumstances surrounding the decision. In Hindle v. John Cotton Ltd (1919) 56 Sc LR 625 at 630-1, Viscount Findlay stated as follows: "Where the question is one of absence of powers, the state of mind of those who acted and motive on which they acted are all important, and you may go into the question of what their intention was, collecting from the surrounding circumstances all the materials which genuinely throw light upon that question of the state of mind of the directors so as to show S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 whether they were honestly acting in the discharge of their powers in the interests of the company or were acting from some bye-motive, possibly of personal advantage or for any other reason."(emphasis added) [30] Her Ladyship Nallini Pathmanathan J (now FCJ) further explained: “[364] Business judgment has been defined to mean ‘any decision on whether or not to take action in respect of a matter relevant to the business of the company’ (see s 132 of the Companies Act). In Australian Securities and Investments Commission v Rich (2009) 75 ACSR 1 Austin J accepted a wide interpretation of the scope of ‘business judgment’. The words ‘in respect of, ‘matter’ and ‘relevant’ were accorded considerable breadth. As such it follows that an issue such as a shortage of cash flow and the disposal of assets falls squarely within this definition. [365] The effect of the statutory business judgment rule in the current context is this: If the impugned directors can show that they made the decisions to affect the second and third divestments, as a business judgment within the scope of s 132(1B) of the Companies Act 1965, then they are deemed to have met their obligations and duties as directors under statute, common law and equity. In other words, the requirements of s 132(1A) of due care and diligence in the exercise of their duties would have been met. [366] How then is this to be ascertained? The courts do not undertake the exercise of assessing the merits of a commercial or business judgment (see Smith (Howard) Ltd v Ampol Petroleum Ltd [1974] AC 821). [367] In the Australian case of Australian Securities and Investments Commission v. Rich [2009] ACSR 1('the Rich case') the enquiry related to the managing director Rich and the finance director, Silberman's failure to advise the board of directors that the company was insolvent. It should be highlighted that the statutory Australian provision equivalent to s 132(1B) is similar to our S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 provision save for the use of the words 'rationally believes' rather than 'reasonably believes' in our section. While it has been argued by the American Law Institute that 'rationally believe' is considerably wider than 'reasonably believe' I am unable to subscribe entirely to that construction. Rational by definition alludes to a decision based on reason or logic. Reasonable as a word has much the same effect, namely a decision premised on logic or sense. The distinction does not therefore appear to be as wide as is suggested. [368] In the Rich case, Austin J. set out a compendium of requirements that need to be satisfied in or order to satisfy this requirement of 'rational' belief. As 'rational' is not entirely dissimilar to 'reasonable' it appears that the criteria set out in Rich's case are applicable under s 132(1B). Austin J. held there that reasonableness should be assessed by reference to: (a) the importance of the business judgment that is to be made; (b) the time available for obtaining information; (c) the costs related to obtaining information; (d) the director's confidence in exploring the matter; (e) the state of the company's business at that time and the nature of the competing demands on the board's attention; and (f) whether or not the information is available to the director. [369] The Supreme Court of Canada in Peoples Department Stores Inc (Trustee of) v. Wise [2004] 3 SCJ No 64 held as follows at para 64: "Business decisions must sometimes be made with high stakes and under considerable time pressure in circumstances in which detailed information is not available. It might be tempting for some to see unsuccessful business decisions as unreasonable or imprudent in light of information that becomes available ex post facto. Because of this risk of hindsight bias, Canadian courts S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 have developed a rule of defence to business decisions called the "business judgment rule". [370] Reference was made to Maple Leaf Foods Inc v. Schenieder Corp (1998) 42 OR (3d) 177: "The law as it has evolved in Ontario and Delaware has the common requirements that the court must be satisfied that the directors have acted reasonably and fairly. The court looks to see that the directors made a reasonable decision not a perfect decision. Provided that the decision taken is within a range of reasonableness, the court ought not to substitute its opinion for that of the board even though subsequent events may have cast doubt on the board's determination. As long as the directors have selected one of several reasonable alternatives, deference is accorded to the board's decision. This formulation of deference to the decision of the Board is known as the "Business judgment rule". The fact that alternative transactions were rejected by the directors is irrelevant unless it can be shown that a particular alternative was definitely available and clearly more beneficial to the company than the chosen transaction." (Emphasis added) [31] The Federal Court in Tengku Dato’ Ibrahim Petra Tengku Indra Petra v. Petra Perdana Berhad & Another Case [2018] 2 MLJ 177 affirmed the High Court decision of Nallini Pathmanathan J (now FCJ), and in its judgment delivered by Azahar Mohamed FCJ ( later CJM) elucidated and held that the true test for breach of duty as a director to act in good faith and in the ‘best interest of the company' is a combination of both the subjective and objective tests: “[165] What then is the true test for breach of duty as a director to act in good faith and in the ‘best interest of the company'? The question is whether it is a subjective or objective test to judge whether directors acted in the best interest of the company. It is to this we now turn. S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 [166] In our judgment, the correct test combines both subjective and objective tests. The test is subjective in the sense that the breach of the duty is determined on an assessment of the state of mind of the director; the issue is whether the director (not the court) considers that the exercise of discretion is in the best interest of the company. In this regard, in Corporate Law by Hans Tjio, Pearlie Koh and Lee Pey Woan at p 361, the learned authors said that the director’s conduct is tested by reference to an essentially subjective barometer. The classic formulation of the subjective element in the test is found, as we have discussed earlier at para 157, in Re Smith & Fawcett, Limited in which Lord Greene MR said that ‘directors must exercise their discretion bona fide in what they consider — not what a court may consider — is in the interest of the company’. The duty is to act in what the director believes, not what the court believes, to be the best interest of the company. The subjective nature of the test can be seen in Regentcrest Plc (in liq) v Cohen [2001] BCC 494 where Jonathan Parker J said: … the question whether the director honestly believed that his act or omission was in the interests of the company. The issue is as to the director’s state of mind. No doubt, where it is clear that the act or omission under challenge resulted in substantial detriment to the company, the director will have a harder task persuading the court that he honestly believed it to be in the company’s interest; but that does not detract from the subjective nature of the test. [167] The test is objective in the sense that the director’s assessment of the company’s best interest is subject to an objective review or examination by the courts. In an article entitled Directors’ Duty to Act in the Interests of the Company: Subjective or Objective? [2015] JBL Issue 2, the writers said that courts have introduced objective elements into the duty to act in good faith and in the best interest of the company to address the problem identified by Browen LJ in Hutton v West Cork Railway Company (1883) 23 Ch D 654 at p 671 where the learned judge said: S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 Bona fides cannot be the sole test, otherwise you might have a lunatic conducting the affairs of the company, and paying away its money with both hands in a manner perfectly bona fide yet perfectly irrational. The test must be what is reasonably incidental to, and within the reasonable scope of carrying on, the business of the company. [168] The Singapore Court of Appeal in Goh Chan Peng and Others v Beyonics Technology Ltd and another and another appeal [2017] 2 SLR 592; [2017] SGCA 40 explained the preferred approach which combines both subjective and objective tests as follows: Indeed, there are both subjective and objective element in the test. The subjective element lies in the court’s consideration as to whether a director had exercised his discretion bona fide in what he considered (and not what the court considers) is in the interests of the company: Re Smith & Fawcett Ltd [1942] Ch 304 at 306, as accepted by this court in Cheong Kim Hock v Lin Securities (Pte) (in liquidation) [1992] 1 SLR (R) 497 at 26 and in Ho Kang Peng v Scintronix Corp Ltd (formerly known as TTL Holdings Ltd) [2014] 3 SLR 329 (‘Ho Kang Peng’) at 37. Thus, a court will be slow to interfere with commercial decisions made honestly but which, on hindsight, were financially detrimental to the company. The objective element in the test relates to the court’s supervision over directors who claim to have been genuinely acting to promote the company’s interest even though, objectively, the transactions were not in the company’s interests. The subjective belief of the directors cannot determine the issue: the court has to assess whether an intelligent and honest man in the position of a director of the company concerned could, in the whole of the existing circumstances, have reasonably believed that the transactions were for the benefit of the company. This is the test set out in Charterbridge Corporation Ltd v Lloyds Bank Ltd [1970] 1 Ch 62 S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 (at 74) and it has been applied here since adopted by this court in Intraco Ltd v Multi-Pak Singapore Pte Ltd [1994] 3 SLR (R) 1064 (at [28]). [32] The Federal Court at [177] and [178] reaffirmed the Charterbridge Principle exposited by Zainun Ali JCA (later FCJ) in Pioneer Haven Sdn Bhd v Ho Hup Construction Co Bhd & Anor and other appeals in that, to challenge a decision of the directors, the test is whether: an intelligent and honest man in the position of the director of the company concerned, could in the whole of the existing circumstances have reasonably believed that the transactions were for the benefit of the company. Evaluations and Findings Whether D1 and D2 have breached their duties as directors of the Plaintiff [33] Guided by the instructive principles set out in the preceding paragraphs, I now deal with this issue. [34] As starters, having heard the evidence of the 10 witnesses called for the Plaintiff, examined and read the relevant documents and submission of the parties, I am of the respectful view that the Plaintiff has proven a prima facie case on a balance of probability that D1 and D2 had acted in breach of their duties to the Plaintiff and the Plaintiff has suffered losses as a consequence of their breaches of duties. [35] In this regard, the Plaintiff has adduced clear evidence to show: S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 35.1 A total of RM32,784,000 was paid by the Plaintiff and its financiers to KSG for the supply of the factory lines including auxillary equipment. Out of this sum, RM13,100,000 was paid by KSG to Equatorion purportedly for supply of auxiliary equipment based on fabricated documents (invoices and official receipts from Equatorion); 35.2 Mr. Tsen, PW1 from KSH testified that in March and April 2014, KSG completed the supply, installation and commissioning of the Main Lines; when commissioning the factory lines, he observed that the auxiliary equipment had already been supplied and installed by another supplier; neither he nor KSG had prior dealings with Equatorion in respect of the auxiliary equipment; In May 2014, KSG received invoices from Equatorion for amount of RM16,000,000 and he was asked 2 months later by D1 to pay them; he received 2 receipts from Equatorion totalling RM2,900,000 dated 24.03.2014 and 14.05.2014 only in August 2014; 35.3 Madam Kok, PW9 assistant manager between 2007 to 2020 from the Plaintiff’s Procurement Department gave evidence of considerable weight that she knew Equatorion’s business is that of a canteen food supplier; there were no quotations and purchase orders between Equatorion and the Plaintiff, it was standard operating procedure for the Procurement Department to be involved in the S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 procurement of assets, there was no such appointment of Equatorion by Plaintiff nor purchase orders or quotations issued between the Plaintiff and Equatorion to supply the auxiliary equipment; she testified that the auxiliary equipment was not supplied by Equatorion, but was in fact supplied by the following third- party suppliers: (i) Ripcol Industries Sdn Bhd (“Ripcol”) supplied items relating to the chlorination system of the Factory Lines; (ii) Xin Xin Engineering Sdn Bhd supplied items relating to the glove stripping / autostripping machines of the Factory Lines; (iii) Perfect Combustion supplied items relating to the gas burners of the Factory Lines; and (iv) Zibo Haoxiang Ceramics Trading or PT Mark Dynamics supplied items relating to the glove formers of the Factory Lines. In her Q&A 20, 22 and 22, PW9 testified: i. “...Equatorion was Dato’ Lee’s company.”; ii. “...it was common knowledge that “Equatorion is Dato Lee’s company.”; S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 iii. “anything related to Equatorion would require Dato’ Lee’s approval”; iv. she was acting on the instructions of D1 in respect of Equatorion. 35.4 Chia Jenn Chuan (PW8) business development director from Ripcol testified that Ripcol is the sole supplier of the chlorination systems of the Plaintiff’s Factory Lines; Ripcol for its supply has received payment from the Plaintiff. Both PW8 and PW1 from KSG testified that they have never heard of Equatorion being in the business of supply, install and/or commission of auxiliary equipment; in this regard, the Court notes that D2’s submission that no one from Ripcol was called to give evidence and that an adverse inference should be drawn against the Plaintiff is misconceived; 35.5 KSG paid Equatorion RM13,100,000 as evidenced by its bank statements; the receipt of the RM13,100,000 by Equatorion from KSG is also corroborated by the bank statements of Equatorion as confirmed by Puan Rozaimah bin Abdul Razak (PW2), branch manager of RHB Banking Berhad (where Equatorion’s bank account was opened); 35.6 D1 and D2 ultimately controlled Equatorion: S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 35.6.1 D2 held 66.67% of Equatorion’s shareholding (100,000 out of 150,000 ordinary shares); 35.6.2 Lee Soon Khim, D1’s cousin (see testimony of PW10, Martin Tupila, forensic accountant from Ernst and Young Advisory Pte. Ltd, Singapore) and a known nominee and/or agent of D1 and D2 is a director of Equatorion; 35.6.3 Cheong Ah Yoke, a Senior Project Executive and an employee of the Plaintiff from 2005 to 2019 whose appointment was signed off by D1 in the Plaintiff and other companies related to D1 and D2 namely AHP and AMP, is a director and shareholder in Equatorion with 33.33% shareholding (49,998 of 150,000 ordinary shares); 35.6.4 D1 is a signatory for: (i) 2 out of 3 Equatorion’s bank accounts in RHB Bank Nilai as confirmed by PW2, the Branch Manager of RHB Bank Berhad, Nilai branch; and (ii) Various commercial documents for Equatorion as confirmed by Fadzillah binti Awaludin (PW4), Plaintiff’s Accounts Assistant Manager. 35.7 D1 paid himself RM3,663,000 through Equatorion: S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 35.7.1 On 09.09.2014, RM300,000 was paid via RENTAS; 35.7.2 On 26.08.2015, RM1,600,000 was paid via Equatorion; D1 was one of the signatories of the cheque; 35.7.3 On 26.8.2015, another RM1,763,000 was paid via Equatorion to the Plaintiff where D1 is one of the signatories which was classified in Plaintiff’s books “FOR PRODUCTION LINE COST” and then on 30.11.2015, the entry was re-classified as “AMOUNT OWING TO DIRECTOR-LSH”; 35.8 D1 and/or D2 were former directors and/or shareholders of AHP, AMP, Asia Cosmopolitan and GTH – these companies received in total a sum of RM5,371,000 from the secret profit made by D1 and D2 vide Equatorion; 35.9 Equatorion’s invoices and report and financial year statement as at 31.12.2010 bear the same address as the Plaintiff; 35.10 D1’s employees eg. PW9 were used to faci litate Equatorion’s activities within the Plaintiff ’s premises; and S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 35.11 Other than the questionable invoices and receipts, there is no evidence to show that Equatorion had actually supplied the auxiliary equipment. [36] In the face of such demonstrably overwhelming evidence, D1 and D2 in my view have a case to answer in respect of the fictitious supply of auxillary equipment by Equatorion through fabricated invoices and receipts; secretly profi ting of the sum of RM13,100,0000 and gaining a personal benefit therefrom that point towards their breaches of duties as directors . I find the fate of the claim against them for breach of duties as directors was sealed when both D1 and D2 did not testify since they claimed in their defence that the transactions entered into with KSG was proper. Their subjective belief is simply not good enough, it was critical for them to testify on what they D1 and D2 as directors believe and to enable the court to assess their state of mind and the motive on which they acted on the basis of whether an intelligent and honest man in the position of D1 and D2 as directors of the Plaintiff could, in the whole of the existing circumstances, have reasonably believed that the transactions with KSG were for the benefit of the Plaintiff company. It would be critical to ascertain the true state of affairs by resort to cross-examination. D1 and D2 irrevocably undermined their position by not testifying. I can be forgiven for concluding that both were avoiding cross examination. It behoves them to give evidence to rebut the Plaintiff’s case. S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 36 [37] In Takako Sakao (f) v Ng Pek Yuen (f) Anor (2009) 6 MLJ 751, the Federal Court speaking through Gopal Sri Ram FCJ, provided a useful guide when there is no evidence put forth by a party in a civil case: “[4] In our judgment, two consequences inevitably followed when the first respondent who was fully conversant with the facts studiously refrained from giving evidence. In the first place, the evidence given by the appellant ought to have been presumed to be true. As Elphinstone CJ said inWasakah Singh v Bachan Singh (1931) 1 MC 125 at p 128: If the party on whom the burden of proof lies gives or calls evidence which, if it is believed, is sufficient to prove his case, then the judge is bound to call upon the other party, and has no power to hold that the first party has failed to prove his case merely because the judge does not believe his evidence. At this stage, the truth or falsity of the evidence is immaterial. For the purpose of testing whether there is a case to answer, all the evidence given must be presumed to be true. Now, what the trial judge did in the present case is precisely what he ought not to have done. He expressed dissatisfaction with the appellant's evidence without asking himself that most vital question: does the first defendant/respondent have a case to answer? This failure on the part of the trial judge is a serious non-direction amounting to a misdirection which occasioned a miscarriage of justice. The trial judge was at that stage not concerned with his belief of the appellant's evidence. She had given her explanation as to the discrepancies in the figures. And her evidence does not appear to be either inherently incredible or inherently improbable. In these circumstances it was the duty of the judge to have accepted her evidence as true in the absence of any evidence from the first respondent going the other way. He however failed to direct himself in this fashion thereby occasioning a serious miscarriage of justice. S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 37 [5] The second consequence is that the court ought to have drawn an adverse inference against the first respondent on the amount of the appellant's contribution to the purchase price as well as the existence and the terms of the mutual understanding or agreement that she had with the first respondent. Where, as here, the first respondent being a party to the action provides no reasons as to why she did not care to give evidence the court will normally draw an adverse inference. SeeGuthrie Sdn Bhd v Trans-Malaysian Leasing Corp Bhd [1991] 1 MLJ 33. See alsoJaafar bin Shaari & Anor (suing as Administrators of the Estate of Shofiah bte Ahmad, deceased) v Tan Lip Eng & Anor [1997] 3 MLJ 693 where Peh Swee Chin FCJ said: 'The respondents had chosen to close the case at the end of the appellants' case. Although they were entitled to do so, they would be in peril of not having the evidence of their most important witness and of having an adverse inference drawn against them for failing to call such evidence should the circumstances demand it.' ….. The other case isCrawford v Financial Institutions Services Ltd (Jamaica) [2005] UKPC 40, where Lord Walker of Gestingthorpe when delivering the advice of the Privy Council said: It is well settled that in civil proceedings the court may draw adverse inferences from a defendant's decision not to give or call evidence as to matters within the knowledge of himself or his employees. Sarkar on Evidence (16th Ed) at p 1837 states: It is the bounden duty of a party personally knowing the whole circumstances to give evidence and to submit to cross-examination. Non-appearance as a witness would be the strongest possible circumstance to discredit the truth of his case Gurbakhsh v Gurdial AIR 1927 PC 230. S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 38 [6] In the present instance, there is no doubt that the first respondent had intimate knowledge of the material facts relevant to the dispute and that she was privy to the several steps through which the transaction had proceeded. Based on the authorities already cited, it is patently clear that the trial judge in the present case ought to have held that the failure of the first respondent to give evidence apart from discrediting her case strengthened the appellant's case on those vital points that lay at the axis of the dispute between the parties. This, the trial judge clearly omitted to do. Instead, he treated the first respondent's failure to appear and give evidence as a matter of no apparent consequence. His non-direction upon such a crucial point as this certainly amounts to a misdirection which has occasioned a miscarriage of justice. To conclude the first issue, it is our judgment that there was no judicial appreciation of the appellant's evidence. A reasonable tribunal correctly directing itself on the facts and the relevant law would have held that the appellant had indeed contributed RM194,610 towards the purchase price of the building; that there was a mutual understanding between the appellant and the first respondent that they shall be beneficial co owners of the property in question in equal shares; and that the first respondent had acted in breach of that understanding.” [38] Both D1 and D2 are clearly material witnesses due to their forming the majority of the Board of Directors of the Plaintiff and their obvious control of Equatorion and beneficial interest therein. This court is thus entitled to draw an adverse inference against D1 and D2 where, as here, both were conversant thoroughly with the material facts of the case, advanced no credible reason as to why they did not care to give evidence. Following Takako Sakao , such failure to testify also entitles this court to presume to be true the evidence given by the Plaintiff’s witnesses. At any rate, even after reminding myself of the limits that the court does not substitute its own S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 39 decision with that of the directors, since the decision to enter into the KSG transactions is a management decision, even so, from the body of evidence adduced by the Plaintiff, I find inflating the cost for each of the factory line by RM4,000,000 and have the monies then siphoned to Equatorion which both D1 and D2 are beneficially interested in, and at the expense of the Plaintiff, is not conduct of loyalty and fidelity to the Plaintiff when both of them were placed in a position of confidence and trust. An intelligent and honest man in the positions of either D1 and D2 simply could not, in the whole of the existing circumstances, have reasonably believed that what they did was acting primarily in good faith, bona fide and would be in the best interest of the Plaintiff company. As fiduciaries, the foremost consequence is that both would owe a duty of undivided loyalty to the Plaintiff and must be held accountable. They had from the evidence adduced, undoubtedly personally profited from the KSG transactions when a substantial portion of the funds for the purchase of the factory lines originating from the Plaintiff and their financiers ended up in D1’s own bank account or in companies related to them. It is pure and simple a case of the proverbial “Harap pagar, pagar makan padi”. [39] In Words, Phrases and Maxims Legally and Judicially Defined - Anandan Krishnan, “good faith” is defined amongst others, as: “The phrase ‘good faith’ lays emphasis on honesty and fair play to the expulsion of any pretence, deceit and wanton or willful negligence. (Ram Saran v Kuriamal, 1988 AL] 1288). The words..."good faith’ conveys the absence of intent to deceive. (Sir Padam Pat Singhania v Commissioner of Gift Tax 1988 UPTC 71). S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 40 ‘In order to act in good faith, a person must act honestly. A “'person who acts in a particular manner in the discharge of his duties in spite of the knowledge and consciousness that injury to some one or group of persons is likely to result from his act or omission he cannot be said to act with honesty or good faith’. [40] It is trite that where there is a question as to the good faith of a transaction between parties, one of whom stands to be the other in position of active confidence, the burden of proving the good faith of the transaction is on the party who is in position of active confidence. See: Khaw Cheng Bok & Anor v Khaw Cheng Poon & Ors [1998] 3 MLJ 457; Tengku Abdullah Ibni Sultan Abu Bakar & Ors v Mohd Latiff bin Shah Mohd & Ors and other appeals [1996] 2 MLJ 265; Lim Kim Hua v Ho Chui Lan & Anor [1995] 3 MLJ 165; Loi Hieng Chiong v Kon Tek Shin [1983] 1 MLJ 31; Siti Haida bt Ismail v Siti Maznah bt Yahya & Ors (as administrators for the estate of Yahya bin Shafii, deceased) [2018] 6 MLJ 701CA BUT D1 and D2 failed to testify. I am thus constrained to find that bad faith is not dispelled. [41] Evident from a consideration of the totality of the evidence adduced by the Plaintiff, there is no escaping that D1 and D2 have indubitably failed to exercise their powers as directors for a proper purpose, failed to exercise reasonable care skill and diligence in the discharge of their duties; breached their duty to act in good faith and in the best interest of the Plaintiff, breached their duty of permitting their interest to conflict with that of the Plaintiff, breached their duty not to make a secret profit with impugnity and breached their duty to disclose to the Plaintiff’s Board their personal interest in Equatorion. The Plaintiff’s shareholders’ consent at a general meeting was not sought to allow D1 and D2 to make the profit of RM13,100,000. Even if D2 did not actively participate in the KSG transactions, she is not absolved S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 41 as by her silence, amounts to her tacit approval of all that was wreaked by D1, she was thus complicit in the plunder of the Plaintiff. D2 as majority shareholder of Equatorion which is a canteen food supplier, in the circumstances of extraordinary bounty of multi millions of Ringgit going through its bank accounts, should have excited D2’s grave suspicion and vigilance. She had allowed Equatorion to be used as a vehicle by D1 to loot the Plaintiff in dereliction of her duties to safeguard the interests of the Plaintiff as a whole. With utmost respect, her post trial submission does not assist her one whit as the Plaintiff’s evidence stands unrebutted. [42] Issue 1 is answered in the affirmative. Whether the Plaintiff had suffered losses as a result of D1 and D2’s breaches and if so, liable to compensate the Plaintiff for such losses. [43] As alluded earlier, a total sum of RM32,784,000 was paid by the Plaintiff and its financiers to KSG for the supply of the factory lines including auxillary equipment. Out of this sum, it is patently clear that RM13,100,000 was paid by KSG to Equatorion. PW10 testified that from a company search, Equatorion has been dissolved on 23.5.2018. I find the Plaintiff has suffered losses in respect of this sum of RM13,100,000 as well as finance charges on the said sum arising from the various hire-purchase agreements with the financiers which PW10 calculated at RM2,532,608.04 as set out in his witness statement at enc. 225. I also find that the Plaintiff’s losses are causally connected directly to D1 and D2’s breaches of directors’ statutory and fiduciary duties to the Plaintiff. S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 42 [44] It is trite that the remedy imposed on the wrongdoers for breach of fiduciary duties would be compensation in equity. The measure of compensation is to put the Plaintiff in the position it would have been had the breach not been committed, see Newacres Sdn Bhd v Sri Alam Sdn Bhd [2000] 2 MLJ 353 (FC) at p 378. [45] It follows there will be judgment for the Plaintiff as follows: 45.1 A declaration that D1 and D2, Lee Son Hong and Too Sooi Keng have breached their fiduciary obligations as directors of the Plaintiff under the Companies Act 2016 and/or at common law; 45.2 A declaration that D1 and D2 are jointly and/or severally liable to pay and/or account to the Plaintiff the sum of RM13,100,000; 45.3 The sum of RM RM2,532,608.04 as finance charges on the sum of RM13,100,000; 45.4 Interest at 5% per annum on the said sums of RM13,100,000 and RM2,532,608.04 from date of judgment to full payment; 45.5 costs of RM120,000.00 subject to allocator to be paid to the Plaintiff; 45.6 All sums including interest and costs awarded to the Plaintiff are to be paid by D1 and D2 jointly and/or severally to the Plaintiff. S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 43 [46] I have not overlooked that D2 in her submission has disputed that PW10 is not an expert. Even so, he is a Plaintiff’s witness with 20 years background in accountancy. In awarding the sum of RM2,532,608.04 as finance charges incurred on the sum of RM13,100,000, I have considered that D1 and D2 have not rebutted PW10’s calculation which I find to be a genuine estimate. The burden is on D1 and D2 to show that the calculation was manifestly erroneous but both offered not a jot of evidence to assist the court. [47] As this is not a bifurcated trial, there will be no separate assessment of damages on interest paid by the Plaintiff to various financiers arising from RM13,100,000 as urged upon this court by the Plaintiff. Added to that, the request at this eleventh hour, makes it wholly impracticable for me to arrange a hearing due to my wider responsibilities to other litigants before I retire from the judiciary next weekend. [48] The costs awarded commensurate with the criteria in O 59 r 16 Rules of Court 2012 and includes the costs of the application for stay of proceedings both here and at the Court of Appeal where costs was ordered to be costs in the cause. Dated: 17th November 2023 - sgd - ………………………. Liza Chan Sow Keng Judge High Court of Malaya at Kuala Lumpur S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 44 COUNSEL: For the Plaintiff : Nathalie Annette Kee Messrs Thomas Philip For the 2nd Defendant : Emily Wong Messrs Wong & Co. CASES REFERRED: Tan Kah Khiam v Liew Chin Chuan & Anor [2007] 2 MLJ 445 Md Hilmi bin Md Noor v Azman bin Ahmah & Ors [2016] 6 MLJ 205 Tenaga Nasional Berhad v Bukit Lenang Development Sdn Bhd [2017] MLJU 782 U-RE Auto Sdn Bhd v York Pacific Holdings Ltd [2004] 3 CLJ 172 Dato’ Pardip Kumar Kukreja & Anor v Vell Paari a/l Samy Vellu [2016] 4 MLJ 649; [2015] 1 LNS Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697; [2017] 5 CLJ 418 Yeohata Machineries Sdn Bhd & Anor v Coil Master Sdn Bhd & Ors [2015] 6 MLJ 810 Board of Trustees of the Sabah Foundation & Ors v Datuk Syed Kechik bin Syed Mohamed & Anor [2008] 5 MLJ 469 Avel Consultants Sdn Bhd & Anor v Mohamed Zain Yusof & Ors [1985] 2 MLJ 209 Pioneer Haven Sdn Bhd v Ho Hup Construction Co Bhd & Anor and other appeals [2012] 3 MLJ 616 Taz Logistics Sdn Bhd v Taz Metals Sdn Bhd & Ors [2019] 3 MLJ 510; [2019] 2 CLJ 48 S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 45 Petra Perdana Berhad v. Tengku Dato’ Ibrahim Petra Tengku Indra Petra & Ors [2014] 11 MLJ 1 Tengku Dato’ Ibrahim Petra Tengku Indra Petra v. Petra Perdana Berhad & Another Case [2018] 2 MLJ 177 Takako Sakao (f) v Ng Pek Yuen (f) Anor (2009) 6 MLJ 751 Newacres Sdn Bhd v Sri Alam Sdn Bhd [2000] 2 MLJ 353 STATUTE/LEGISLATION REFERRED: Section 213, 214, 221, 218 and 219 of the Companies Act 2016 S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

WA-22NCC-391-08/2020

PLAINTIF WRP Asia Pacific Sdn Bhd DEFENDAN 1. ) Lee Son Hong 2. ) Too Sooi Keng 3. ) KSG Engineering Sdn Bhd 4. ) TSEN KET SHUNG @ KON SHUNG 5. ) Kok Mee Yen

Companies and Corporations — Directors' Duties — Directors’ duties to act honestly and in best interests of company — Whether directors acted in breach of statutory duties, fiduciary duties, common law duties — Whether directors failed to act in good faith and in the best interest of company — Whether such failure caused losses and damages to company — Defendants' failure to testify — Whether defendants liable — Companies Act 2016 s 213, 214, 221, 218 and 219

22/11/2023

YA Puan Liza Chan Sow Keng

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=7db8863a-d5c6-47dd-999c-ce63192c66df&Inline=true

IN THE HIGH COURT OF MALAYSIA AT KUALA LUMPUR (COMMERCIAL DIVISION) CIVIL SUIT NO.: WA-22NCC-391-08/2020 BETWEEN WRP ASIA PACIFIC SDN BHD (COMPANY NO.: 147817-V) … PLAINTIFF AND 1. LEE SON HONG (NRIC NO.: 570226-08-5145) 2. TOO SOOI KENG (NRIC NO.: 570713-08-6532) 3. KSG ENGINEERING SDN BHD (COMPANY NO.: 922460-A) 4. TSEN KET SHUNG @ KON SHUNG (NRIC NO.: 710719-12-5119) 5. KOK MEE YEN (NRIC NO.: 660907-05-5194) … DEFENDANTS GROUNDS OF JUDGMENT Introduction [1] This action was filed on 19.8.2020 against the 1st Defendant (“D1”), 2nd Defendant (“D2”) and three other Defendants inter alia, for breach of fiduciary duties, conspiracy to injure the Plaintiff by unlawful means and dishonest assistance. 22/11/2023 08:51:01 WA-22NCC-391-08/2020 Kand. 269 S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 [2] The Plaintiff has discontinued the action against KSG Engineering Sdn Bhd (“KSG”) the 3rd Defendant, the 4th Defendant and the 5th Defendant (D5). Consequently, the Statement of Claim (“SOC”) was amended to drop the claims of conspiracy to injure the Plaintiff by unlawful means and dishonest assistance. [3] The Plaintiff seeks inter alia the following relief against D1 and D2: 3.1 A declaration that D1 and/or D2 breached their fiduciary duties as directors of the Plaintiff; 3.2 A declaration that D1 and D2 are jointly and severally liable to make payment and/or account for the sum of RM13,100,000.00; 3.3 An order that D1 and/or D2 pay the sum of RM13,100,000.00 to the Plaintiff; 3.4 damages, interest and costs. [4] During trial lasting 7 non-consecutive days, the Plaintiff called 10 witnesses to give evidence in support of its claim. Both D1 and D2 did not testify nor called any witness . Background facts [5] The Plaintiff, is a company incorporated in Malaysia carrying on business in manufacturing and marketing of disposable medical, industrial S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 and other specialty gloves, urological catheters and other related products and services. [6] D1 and D2 are husband and wife. Both D1 and D2 were at all material times directors and shareholders of the Plaintiff. Together, they had majority control of the Plaintiff’s Board of Directors. D1 was the Managing Director (“MD”) and the Chief Executive Officer (“CEO”) of the Plaintiff and was responsible for the day-to-day management of the Plaintiff’s business operations. [7] Equatorion Sdn Bhd (“Equatorion”) is a company related to D1 and D2. D2 is a major shareholder of Equatorion, controlling 66.7% of its shareholding. D1 and/or D2 were also former directors and/or shareholders of Advanced Healthcare Products Sdn Bhd (“AHP”), Advanced Medical Products Sdn Bhd (“AMP”), Asia Cosmopolitan Sdn Bhd (“Asia Cosmopolitan”) and Grand Ten Holdings Sdn Bhd (“GTH”). [8] KSG is a company incorporated in Malaysia, involved in engineering works, producing and assembling of glove machines and supplies glove machinery parts. [9] The Plaintiff alleged that: 9.1 D1 and D2 had caused the Plaintiff to enter into several transactions and/or agreements with KSG to supply glove dipping lines 9, 10, 11 and 12 (“the factory lines”) to the Plaintiff’s Factory 3, fraudulently priced at RM 8,196,000.00 S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 for each line which included the price of the auxiliary equipment of the factory lines without intention that the auxiliary equipment will be supplied, installed and commissioned by KSG. Each factory line was priced at RM4,000,000.00 extra; 9.2 D1 and D2 caused the Plaintiff and its financiers Maybank Berhad, Tokyo Century Capital (Malaysia) Sdn Bhd and Pac Lease Berhad to pay KSG a total sum of RM32,784,000.00 for the factory lines. KSG then channelled a sum RM13,100,000.00 to Equatorion, purportedly for Equatorion’s supply of auxiliary equipment which Equatorion did not; thus causing a loss of RM13,100,000.00 to the Plaintiff; 9.3 D1 and D2 controlled Equatorion through relatives and staff of the Plaintiff; and 9.4 D1 and D2 made a secret profit of RM13,100,000.00 at the Plaintiff’s expense; 9.5 D1 and D2’s actions are in breach of their duties as directors to the Plaintiff; and 9.6 The Plaintiff has suffered loss arising from D1 and D2’s breaches of duties . S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 [10] D1 and D2’s Defence essentially is one of denial and summarised as follows: 10.1 deny any fraudulent overpayment as alleged by the Plaintiff as it would have been the Financiers who paid for the same. The Financiers would have inspected and valued the factory lines (including any auxiliary equipment) and had never raised any issue or concern on overpricing or missing equipment; 10.2 The Plaintiff had approved the supply of auxiliary equipment in its ordinary course of business. At all material times, D1 as MD and CEO is empowered to commit the Plaintiff into the said transactions; 10.3 The Plaintiff’s action based on transactions in 2013 is statute barred; 10.4 the Plaintiff is was not the right party to bring the action, the proper plaintiff should have been the financiers as the factory lines are owned by the financiers. [11] D1’s solicitors discharged themselves before trial was completed. As alluded earlier, D1 and D2 did not testify. In my view, it becomes a question whether the Plaintiff has made out a prima facie case against them. D1 and D2 are entitled to rely on the Plaintiff’s evidence. This is because, in S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 discharging its evidential burden in a civil case, one party’s evidence is the other’s as well. See: (a) Tan Kah Khiam v Liew Chin Chuan & Anor [2007] 2 MLJ 445 (CA) at [3]; (b) Md Hilmi bin Md Noor v Azman bin Ahmad & Ors [2016] 6 MLJ 205 (CA) at [23-24]; (c) Tenaga Nasional Berhad v Bukit Lenang Development Sdn Bhd [2017] MLJU 782 (CA) at [66]; and (d) U-RE Auto Sdn Bhd v York Pacific Holdings Ltd [2004] 3 CLJ 172 (CA) Issues [12] D2 filed a post trial submission, D1 did not. It can be gleaned from D2’s post trial submission that she has abandoned the limitation and locus standi points. [13] Thus the issues to be determined in my view boil down to 2 as follows: 13.1 Whether D1 and D2 have breached their duties as directors of the Plaintiff in causing the payment of a sum of RM13,100,000 to Equatorion for the purported supply of auxiliary equipment; and S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 13.2 If issue 1 is answered in the affirmative, whether the Plaintiff had suffered losses as a result of D1 and D2’s breaches and if so, liable to compensate the Plaintiff for such losses. Burden of proof [14] In Dato’ Pardip Kumar Kukreja & Anor v Vell Paari a/l Samy Vellu [2016] 4 MLJ 649; [2015] 1 LNS 1482 CA, Vernon Ong JCA (later FCJ) succinctly explained: [24] It is settled law that the party who desires the court to give judgment as to any legal right or liability bears the burden of proof (s 101(1) of the Evidence Act 1950). The burden of proof is on that party is twofold: (a) the burden of establishing a case; and (b) the burden of introducing evidence. The burden of proof lies on the party throughout the trial. The standard of proof required of the plaintiff is on the balance of probabilities. The evidential burden of proof is only shifted to the other party once that party has discharged its burden of proof. If that party fails to discharge the original burden of proof, then the other party need not adduce any evidence. In this respect it is the plaintiff who must establish his case. If he fails to do so, it will not do for the plaintiffs to say that the defendants have not established their defence (Selvaduray v Chinniah [1939] 1 MLJ 253 (CA); s 102 of the Evidence Act 1950). On the effect of the burden of proof not being discharged, Terrell Ag CJ in Selvaduray v Chinniah, adopting the position stated by the Court of Appeal in Abrath v North Eastern Railway Co [1883] 11 QBD 440 said: S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 In such a case as the present the position has been clearly stated in the judgment of Brett MR in Abrath v North Eastern Railway Co [1883] 11 QBD 440 at p 452: But then it is contended (I think fallaciously), that if the plaintiff has given prima facie evidence, which, unless it be answered, will entitle him to have the question decided in his favour, the burden of proof is shifted on to the defendant as the decision of the question itself. This contention seems to be the real ground of the decision in the Queen’s Bench Division. I cannot assent to this. It seems to me that the propositions ought to be stated thus: the plaintiff may give prima facie evidence which, unless it be answered either by contradictory evidence or by the evidence of additional facts, ought to lead the jury to find the question in his favour: the defendant may give evidence either by contradicting the plaintiff’s evidence or by proving other facts: the jury have to consider upon the evidence given upon both sides, whether they are satisfied in favour of the plaintiff with respect to the question which he calls them to answer; if they are, they must find for the plaintiff; but if upon consideration of the facts they come clearly to the opinion that the question ought to be answered against the plaintiff; they must find for the defendant. Then comes this difficulty — suppose that the jury, after considering the evidence, are left in real doubt as to which way they are to answer the question put to them on behalf of the plaintiff: in that case also the burden of proof lies upon the plaintiff, and if the defendant has been able by the additional facts which he has adduced to bring the minds of the whole jury to a real state of doubt, the plaintiff has failed to satisfy the burden of proof which lies upon him. S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 [15] The Federal Court in Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697; [2017] 5 CLJ 418 FC speaking through Jeffrey Tan FCJ at [48] to [63] offers valuable guidance on this subject. Particularly at [56] and [57], His Lordship elucidated: “[56] Thus, a plaintiff has both the burden of proof as well as the initial onus of proof. In Britestone Pte Ltd v Smith & Associates Far East, Ltd [2007] 4 SLR 855, the Singapore Court of Appeal per VK Rajah JCA, delivering the judgment of the court, explained that at the start of the plaintiff’s case the burden of proof and the onus of proof coincide: … at the start of the plaintiff’s case, the legal burden of proving the existence of any relevant fact that the plaintiff must prove and the evidential burden of some (not inherently incredible) evidence of the existence of such fact coincide. Upon adduction of that evidence, the evidential burden shifts to the defendant, as the case may be, to adduce some evidence in rebuttal. If no evidence in rebuttal is adduced, the court may conclude from the evidence of the defendant. If, on the other hand, evidence in rebuttal is adduced, the evidential burden shifts back to the plaintiff. If, ultimately, the evidential burden comes to rest on the defendant, the legal burden of proof of the relevant fact would have been discharged by the plaintiff. The legal burden of proof — a permanent and enduring burden — does not shift. A party who has the legal burden of proof on any issue must discharge it throughout. Sometimes, the legal burden is spoken of, inaccurately, as ‘shifting’; but what is truly meant is that another issue has been engaged, on which the opposite party hears the legal burden of proof. S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 [57] The rule is that ‘the onus of proof of any particular fact lies on the party who alleges it, not on him who denies it; et incumbit probation qui decit, non qui negat, Actori incibit probation … The plaintiff is bound in the first instance, to show a prima facie case, and if he leaves it imperfect, the court will not assist him. Hence the maxim Potior est condition defendantis. A plaintiff cannot obviously advantage himself by the weakness of the defence. A plaintiff’s case must stand or fall upon the evidence adduced by him. When, however, the defendant, or either litigant party, instead of denying what is alleged against him, relies on some new matter which, if true, is an answer to it, the burden of proof changes sides; and he, in his turn, is bound to show a prima facie case at least and, if he leaves it imperfect, the court will not assist him. Reus excipendo fit actor’ (Woodroffe and Amir Ali, Vol 3 at pp 3190-3191). (Emphasis added) [16] See also [17] of Yeohata Machineries Sdn Bhd & Anor v Coil Master Sdn Bhd & Ors [2015] 6 MLJ 810 CA, also a judgment of Vernon Ong JCA (later FCJ): “… there must be some preponderance in the plaintiffs’ favour at the conclusion of the whole case. Even if the plaintiffs had established a prima facie case, but if at the conclusion of the trial the court finds that the position was exactly even, then any preponderance in favour of the plaintiffs has ceased to exist. If that happens, then the plaintiffs have failed to discharge the burden of proof which is upon it, and the plaintiffs must necessarily fail (Abrath v The North Eastern Railway Co (1883) 11 QBD 440, at p 452).” [17] I would thus remind myself that if the Plaintiff does not discharge its burden of showing a prima facie case, the claim would be dismissed notwithstanding whether the defence is or is not established. I now deal with the issues. S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 Director’s duties and fiduciaries [18] The Federal Court in Board of Trustees of the Sabah Foundation & Ors v Datuk Syed Kechik bin Syed Mohamed & Anor [2008] 5 MLJ 469 at [30] has adopted Millet LJ ‘s definition of a fiduciary in Bristol and West Building Society v Mothew (t/a Stapley & Co) [1998] Ch 1 at p 11 as follows: A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of the fiduciary. The nature of the obligation determines the nature of the breach. The various obligations of a fiduciary merely reflect different aspects of his mere core duties of loyalty and fidelity. Breach of fiduciary obligation, therefore, connotes disloyalty or infidelity competence is not enough. A servant who loyally does his incompetent best for his master is not unfaithful and is not guilty of a breach of fiduciary duty.” [19] The law is clear that a director of a company is in fiduciary relationship with his company and as such he is precluded from acting in a manner which will bring his personal interest into conflict with that of his S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 company - per Salleh Abas LP in Avel Consultants Sdn Bhd & Anor v Mohamed Zain Yusof & Ors [1985] 2 MLJ 209 SC. [20] In Ford's Principles of Corporations Law in Chapter 8 at para [8.050] at p 312, a director is subject to the fiduciary's duty of loyalty and the duty to avoid conflicts of interest. Walter Woon on Company Law states that: Firstly, a director must act in what he honestly considers to be the company’s interests and not in the interests of some other person or body. This is a director’s main and overriding duty at common law; Secondly, a director must employ the powers and assets that he is entrusted with for proper purposes and not for any collateral purpose; Thirdly, a director must not place himself in a position whereby his duty to the company and his personal interests may conflict. [21] Section 213(1) Companies Act 2016 (“CA 2016’) requires directors to exercise their powers in good faith and in the best interests of the company whilst s 213 (2) provides directors must exercise reasonable care, skill and diligence: “Section 213(1) CA 2016: (1) A director of a company shall at all times exercise his powers in accordance with this Act, for a proper purpose and in good faith in the best interest of the company. (2) A director of a company shall exercise reasonable care, skill and diligence with: (a) The knowledge, skill and experience which may reasonably be expected of a director having the same responsibilities; and S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 (b) Any additional knowledge, skill and experience which the director in fact has.” [22] In Pioneer Haven Sdn Bhd v Ho Hup Construction Co Bhd & Anor and other appeals [2012] 3 MLJ 616 at p 654 the Court of Appeal held that ss 132(1) and 132(1A) [re- enacted as s 213 (1) and (2) CA 2016] do not alter the law in this area but enhance the common law duty of care and equitable fidicuary duties. The Court of Appeal said at para 233: … The prior provision of s 132(1) requires a director to act honestly. The current s 132(1) of the Act, requires a director to act in good faith in the best interests of the company. It is accepted that for all intents and purposes, the scope of the directors’ duties to act honestly under the old s 132(1) and the new s 132(1) are the same. Thus the old case law relating to the duty to act honestly continues to be relevant (see Cheam Tat Pang v Public Prosecutor [1996] 1 SLR 541). It is also recognised that the duty to act in the best interests of the company means different things, depending on the factual circumstances. [23] The statutory no conflict rule encapsulated in s. 221(1) CA 2016 (s. 131 of the CA 1965) mandates disclosure where a director is in any way whether directly or indirectly interested in a transaction with the company. It reads: “Section 221 CA 2016: (1) Subject to this section, every director of a company who is in any way, whether directly or indirectly, interested in a contract or proposed contract with the company shall, as soon as practicable after the relevant facts have come to the director's knowledge, declare the nature of his interest at a meeting of the board of directors.” S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 [24] Section 221(9) CA 2016 makes plain that interest in the shares of a company include that of a spouse. [25] The learned author Dato’ Loh Siew Cheang in ‘Corporate Powers Accountability’ explained the no-conflict and underlying fiduciary principle as follows: “14-4 The no-conflict principle embodies two fundamental themes. First, directors cannot engage in 'self-dealings' or enter into transactions with a company in which they are directly or indirectly interested. Second, directors cannot make improper use of their office, company's property or information to make profits for themselves directly or indirectly. This is commonly known as the no-profit rule. There are many ways in which directors may misuse their office to benefit themselves-from usurpation of corporate opportunities, receiving bribes or commission and misapplying company's property. The rule prohibiting undisclosed self-dealings and secret profits is a positive rule. 14-5 The underlying fiduciary principle against the abuse of office is well established. In Gurbachan Singh s/o Bagawan Singh & Ors v Vellasamy s/o Pennusamy & Ors (on their behalf and for the 213 sub-purchasers of plots of land known as PN35553, Lot 9108, Mukim Hutan Melintang, Hilir Perak) and other appeals, the Federal Court said: [69] It is trite law that a person in a fiduciary position is not entitled to make a profit and he is not allowed to put himself in a position where his interest and duty are in conflict. In Boardman v Phipps [1966] 3 WLR 1009 Lord Hodson explained the rule as follows: Whether this aspect is properly to be regarded as part of the trust assets is, in my judgment, immaterial. The appellants obtained knowledge by reason of their fiduciary position and they cannot S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 escape liability by saying that they were acting for themselves and not as agents of the trustees. Whether or not the trust or the beneficiaries in their stead could have taken advantage of the information is immaterial, as the authorities clearly show. No doubt it was but a remote possibility that Mr Boardman would ever be asked by the trustees to advice on the desirability of an application to the Court in order that the trustees might avail themselves of the information obtained. Nevertheless, even if the possibility of conflict is present between personal interest and the fiduciary position the rule of equity must be applied. This appears from the observations of Lord Cranworth LC in Aberdeen Railway Co v Blaikie 1 Macq 461, 471. In the later case of Bray v Ford [1896] AC 44 Lord Herschell ... said: It is an inflexible rule of a Court of Equity that a person in a fiduciary position, such as the respondent's is not, unless otherwise expressly provided, entitled to make a profit; he is not allowed to put himself in a position where his interest and duty conflict. It does not appear to me that this rule is, as has been said, founded upon principles of morality. I regard it rather as based on the consideration that human nature being what it is, there is danger, in such circumstances, of the person holding a fiduciary position being swayed by interest rather than by duty, and thus prejudicing those whom he was bound to protect. It has, therefore, been deemed expedient to lay down this positive rule. But I am satisfied that it might be departed from in many cases, without any breach of morality, without any wrong being inflicted, and without any consciousness of wrong-doing. Indeed, it is obvious that it might sometimes be to the advantage of the beneficiaries that their trustee should act for them professionally rather than a stranger, even though the trustee were paid for his services. [Emphasis added] S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 14-6 In Furs Ltd v Tomkies, the High Court of Australia explained the rationale as follows: No director shall obtain for himself a profit by means of a transaction in which he is concerned on behalf of the company unless all the material facts are disclosed to the shareholders and by resolution in a general meeting approves of his doing so, or all the shareholders acquiesce. An undisclosed profit which a director so derives from the execution of his fiduciary duties belongs in equity to the company. It is no answer to the application of the rule that the profit is of a kind which the company could not itself have obtained, or that no loss is caused to the company by the gain of the director. It is a principle resting upon the impossibility of allowing the conflict of duty and interest which is involved in the pursuit of private advantage in the course of dealing in a fiduciary capacity with the affairs of the company. If, when it is his duty to safeguard and further the interests of the company, he uses the occasion as a means of profit to himself, he raises an opposition between the duty he has undertaken and his own self interest, beyond which it is neither wise nor practicable for the law to look for a criterion of liability. The consequences of such a conflict are not discoverable. Both justice and policy are against their investigation. [Emphasis added]” [26] The common law no-profit rule is also statutorily embodied in s. 218(1) CA 2016 which stipulates: “Section 218 Prohibition against improper use of property, position, etc. (1) A director or officer of a company shall not, without the consent or ratification of a general meeting- (a) use the property of the company; S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 (b) use any information acquired by virtue of his position as a director or officer of the company; (c) use his position as such director or officer; (d) use any opportunity of the company which he became aware of, in the performance of his functions as the director or officer of the company; or (e) engage in business which is in competition with the company, to gain directly or indirectly, a benefit for himself or any other person, or cause detriment to the company.” [27] Nallini Pathmanathan JCA (now FCJ) in Taz Logistics Sdn Bhd v Taz Metals Sdn Bhd & Ors [2019] 3 MLJ 510; [2019] 2 CLJ 48 explained the ‘no profit rule’ as follows: “[112] The landmark case and starting point for the no profit rule must be Regal (Hastings) Ltd v. Gulliver and Others [1942] 1 All ER 378 more particularly the speech of Lord Russell where he explained the rule: ... The rule of equity which insists on those, who by use of a fiduciary position make a profit, being liable to account for that profit, in no way depends on fraud, or absence of bona fides; or upon such questions or considerations as whether the profit would or should otherwise have gone to the plaintiff or whether the profiteer was under a duty to obtain the source of the profit for the plaintiff, or whether he took a risk or acted as he did for the benefit of the plaintiff, or whether the plaintiff has in fact been damaged or benefited by his action. The liability arises from the mere fact of a profit having, in the stated circumstances, been made. The profiteer, however honest and well-intentioned, cannot escape the risk of being called upon to account.” (emphasis added) S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 [28] As D2 in her submissions had referred to the business judgment rule in s. 214 CA 2016, it is best that this court reproduce it for ease of reference: “214. Business Judgment Rule (1) A Director who make a business judgment is deemed to meet the requirement of the duty under Section 213(2) and the equivalent duties of the common law and in equity if the director– (a) Makes the business decision for a proper purpose and in good faith; (b) Does not have a material personal interest in the subject matter of the business decision; (c) Is informed about the subject matter of the business judgment to the extent the director reasonably believes to be appropriate under the circumstances; (d) Reasonably believes the business judgment is in the best interest of the company. (2) For the purposes of this section, “business judgment” means any decision whether or not to take action in respect of a matter relevant to the business of the company.” [29] In Petra Perdana Berhad v. Tengku Dato’ Ibrahim Petra Tengku Indra Petra & Ors [2014] 11 MLJ 1; Nallini Pathmanathan J (now FCJ) succinctly explained the duties of directors to exercise their powers in good faith and in the best interests of the company and the business judgment rule pursuant to ss132 (1), (1A) and (1B) of the Companies Act 1965, (re-enacted S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 as ss 213(1), (2) and 214 CA 2016 respectively) which I produce in extenso as follows: “[212] In Pioneer Haven Sdn Bhd v. Ho Hup Construction Co Bhd & Anor and Other Appeals [2012] 4 MLRA 210; [2012] 3 MLJ 616 at 654; [2012] 5 CLJ 169 the Court of Appeal held that ss 132(1) and 132(1A) do not alter the law in this area but enhance the common law duty of care and equitable fiduciary duties. At para 233, p 654 this is what the Court said: "...The prior provision of s 132(1) requires a director to act honestly. The current s 132(1) of the Act, requires a director to act in good faith in the best interests of the company. It is accepted that for all intents and purposes, the scope of the directors' duties to act honestly under the old s 132(1) and the new s 132(1) are the same. Thus, the old case law relating to the duty to act honestly continues to be relevant (see Cheam Tat Pang v. Public Prosecutor [1996] 1 SLR 541). It is also recognised that the duty to act in the best interests of the company means different things, depending on the factual circumstances." [213] And the test to be adopted in determining whether there was a breach of such statutory duty was defined as follows at para 238 at p 655: “[238] ... The test is nicely condensed in Ford's Principles of Corporations Law (para 8.060), that there will be a breach of duty if the act or decision is shown to be one which no reasonable board could consider to be within the interest of the company. [239] This test is adopted in Charterbridge Corpn Ltd v. Lloyds Bank Ltd [1970] Ch 62 at p 74, in that, to challenge a decision of the directors the test is whether: “....an intelligent and honest man in the position of the director of the company concerned, could in the whole of the existing circumstances have reasonably believed that the transactions were for the benefit of the company." [240] The above principle is often referred to as the 'Charterbridge Principle'. S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 ………… [242] It is important to note, following high authority, such as Howard Smith Ltd v. Ampol Petroleum Ltd [1974] AC 821, that the court does not substitute its own decision with that of the directors, since the decision of the directors to enter into the JDA is a management decision.” [214] This encapsulates the core of the duties owed by director under statute. [215] Of relevance in the instant case is the statutory business judgment rule in s 132(1B) which states as follows: "A director who makes a business judgment is deemed to meet the requirements of the duty under subsection (1A) and the equivalent duties under the common law and in equity if the director: (a) Makes the business judgment in good faith for a proper purpose; (b) Does not have a material personal interest in the subject matter of the business judgment; (c) Is informed about the subject matter of the business judgment to the extent the director reasonably believes to be appropriate under the circumstances; and (d) Reasonably believes that the business judgment is in the best interests of the company." [216] The statutory business judgment rule encapsulates the common law business judgment rule as set out in Howard Smith Ltd v. Ampol Ltd [1974] AC 821. In that case there was a challenge to the validity of an issue of shares by the directors of a company. The Court had to decide whether the said directors had been motivated by any purpose or personal gain or advantage or whether they had acted bona fide in the interests of the company. The judge found that the primary purpose of the allotment was to proportionately reduce the shareholdings of certain majority shareholders such S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 that a take-over could be facilitated by another entity. It was found in those circumstances that the directors had improperly exercised their powers. The matter proceeded to the Privy Council where the Judicial Committee found, dismissing the appeal that, although the directors had acted honestly and had power to make the allotment, to alter a majority shareholding was to interfere with an element of the company's constitution which was separate from the directors' powers and accordingly it was unconstitutional for the directors to use their fiduciary powers over the shares in the company for the purpose of destroying an existing majority or creating a new majority. And since the directors' primary object for the allotment of shares was to alter the majority shareholding, the directors had improperly exercised their powers and the allotment was invalid. [217] In so holding the Judicial Committee commented inter alia, in relation to the business judgment rule as follows: ".... In order to assist him in deciding upon the alternative motivations contended for, the judge considered first at some length, the objective question whether Millers was in fact in need of capital. This approach was criticised before their Lordships: it was argued that what mattered was not the actual financial condition of Millers, but what the majority directors bona fide considered that condition to be. Their Lordships accept that such a matter as the raising of finance is one of management, within the responsibility of the directors: they accept that it would be wrong for the court to substitute its opinion for that of the management, or indeed to question the correctness of the management's decision on such a question, if bona fide arrived at. There is no appeal on merits from management decisions to courts of law: nor will courts of law assume to act as a kind of supervisory board over decisions within the powers of management honestly arrived at. S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 But accepting all of this, when a dispute arises whether directors of a company made a particular decision for one purpose or another, or whether there being more than one purpose, one or other purpose was the substantial or primary purpose, the court, in their Lordships' opinion, is entitled to look at the situation objectively in order to estimate how critical or pressing or substantial or, per contra, insubstantial an alleged requirement might have been. If it finds that a particular requirement, though real, was not urgent, or critical, at the relevant time, it may have reason to doubt, or discount the assertions of individuals that they acted solely in order to deal with it, particularly when the action they took was unusual or even extreme." [218] …… Fiduciary duties [219] A company director is recognised as having a fiduciary relationship with his company. As stated in Ford's Principles of Corporations Law in Chapter 8 at para [8.050] at p 312, a director is therefore subject to the fiduciary's duty of loyalty and the duty to avoid conflicts of interest. Case-law establishes under the scope of a director's fiduciary duty that he must exercise his powers bona fide and in the best interests of the company as a whole. This is similar to, and captured by the duties imposed by statute (see s 132(1) above). The essence of the fiduciary duty is a duty to act bona fide in the interests of the company and not for a collateral purpose (see In Re Smith and Fawcett, Limited [1942] 1 Ch 304 at pp 306 and 308 and Multi-Pak Singapore Pte Ltd (in receivership v. Intraco Ltd & Ors [1994] 2 SLR 282 at p 287). Although the directors are vested with powers which carry implicitly some degree of discretion, such powers must be exercised bona fide, meaning for the purpose for which they were conferred and not arbitrarily or at the will of the directors, but in the interests of the company. (See S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 Greenhalgh v. Ardene Cinemas Ltd [1951] Ch 287 at 291; Blackwell v. Moray and Anor (1991) 3 ACSR 255). Did Tengku Ibrahim, Lawrence Wong and Tiong who were directors of the Plaintiff at the material time exercise their powers for a proper purpose or for an improper purpose when they decided to undertake the Second and Third Divestments? [220] If the impugned directors exercised their powers for a proper purpose, it then follows that they acted bona fide in the interest of the company. If, however they exercised their powers for an improper purpose as is alleged by the Plaintiff, then they have failed to act in the best interests of the company and would be in breach of their statutory, fiduciary and common law duties as directors. [221] In order to answer this question in relation to the two divestments this Court needs to ascertain the substantial object or purpose for which the board decided to divest of the PEB shares. (see Howard Smith Ltd v. Ampol Ltd (above). [222] In ascertaining the substantial object or purpose for which each of these three directors decided to divest of the PEB shares, it is necessary to ascertain their individual states of mind at the time when the decision to undertake the Divestments was made. In ascertaining the state of mind of the directors, regard may be had to the circumstances surrounding the decision. In Hindle v. John Cotton Ltd (1919) 56 Sc LR 625 at 630-1, Viscount Findlay stated as follows: "Where the question is one of absence of powers, the state of mind of those who acted and motive on which they acted are all important, and you may go into the question of what their intention was, collecting from the surrounding circumstances all the materials which genuinely throw light upon that question of the state of mind of the directors so as to show S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 whether they were honestly acting in the discharge of their powers in the interests of the company or were acting from some bye-motive, possibly of personal advantage or for any other reason."(emphasis added) [30] Her Ladyship Nallini Pathmanathan J (now FCJ) further explained: “[364] Business judgment has been defined to mean ‘any decision on whether or not to take action in respect of a matter relevant to the business of the company’ (see s 132 of the Companies Act). In Australian Securities and Investments Commission v Rich (2009) 75 ACSR 1 Austin J accepted a wide interpretation of the scope of ‘business judgment’. The words ‘in respect of, ‘matter’ and ‘relevant’ were accorded considerable breadth. As such it follows that an issue such as a shortage of cash flow and the disposal of assets falls squarely within this definition. [365] The effect of the statutory business judgment rule in the current context is this: If the impugned directors can show that they made the decisions to affect the second and third divestments, as a business judgment within the scope of s 132(1B) of the Companies Act 1965, then they are deemed to have met their obligations and duties as directors under statute, common law and equity. In other words, the requirements of s 132(1A) of due care and diligence in the exercise of their duties would have been met. [366] How then is this to be ascertained? The courts do not undertake the exercise of assessing the merits of a commercial or business judgment (see Smith (Howard) Ltd v Ampol Petroleum Ltd [1974] AC 821). [367] In the Australian case of Australian Securities and Investments Commission v. Rich [2009] ACSR 1('the Rich case') the enquiry related to the managing director Rich and the finance director, Silberman's failure to advise the board of directors that the company was insolvent. It should be highlighted that the statutory Australian provision equivalent to s 132(1B) is similar to our S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 provision save for the use of the words 'rationally believes' rather than 'reasonably believes' in our section. While it has been argued by the American Law Institute that 'rationally believe' is considerably wider than 'reasonably believe' I am unable to subscribe entirely to that construction. Rational by definition alludes to a decision based on reason or logic. Reasonable as a word has much the same effect, namely a decision premised on logic or sense. The distinction does not therefore appear to be as wide as is suggested. [368] In the Rich case, Austin J. set out a compendium of requirements that need to be satisfied in or order to satisfy this requirement of 'rational' belief. As 'rational' is not entirely dissimilar to 'reasonable' it appears that the criteria set out in Rich's case are applicable under s 132(1B). Austin J. held there that reasonableness should be assessed by reference to: (a) the importance of the business judgment that is to be made; (b) the time available for obtaining information; (c) the costs related to obtaining information; (d) the director's confidence in exploring the matter; (e) the state of the company's business at that time and the nature of the competing demands on the board's attention; and (f) whether or not the information is available to the director. [369] The Supreme Court of Canada in Peoples Department Stores Inc (Trustee of) v. Wise [2004] 3 SCJ No 64 held as follows at para 64: "Business decisions must sometimes be made with high stakes and under considerable time pressure in circumstances in which detailed information is not available. It might be tempting for some to see unsuccessful business decisions as unreasonable or imprudent in light of information that becomes available ex post facto. Because of this risk of hindsight bias, Canadian courts S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 have developed a rule of defence to business decisions called the "business judgment rule". [370] Reference was made to Maple Leaf Foods Inc v. Schenieder Corp (1998) 42 OR (3d) 177: "The law as it has evolved in Ontario and Delaware has the common requirements that the court must be satisfied that the directors have acted reasonably and fairly. The court looks to see that the directors made a reasonable decision not a perfect decision. Provided that the decision taken is within a range of reasonableness, the court ought not to substitute its opinion for that of the board even though subsequent events may have cast doubt on the board's determination. As long as the directors have selected one of several reasonable alternatives, deference is accorded to the board's decision. This formulation of deference to the decision of the Board is known as the "Business judgment rule". The fact that alternative transactions were rejected by the directors is irrelevant unless it can be shown that a particular alternative was definitely available and clearly more beneficial to the company than the chosen transaction." (Emphasis added) [31] The Federal Court in Tengku Dato’ Ibrahim Petra Tengku Indra Petra v. Petra Perdana Berhad & Another Case [2018] 2 MLJ 177 affirmed the High Court decision of Nallini Pathmanathan J (now FCJ), and in its judgment delivered by Azahar Mohamed FCJ ( later CJM) elucidated and held that the true test for breach of duty as a director to act in good faith and in the ‘best interest of the company' is a combination of both the subjective and objective tests: “[165] What then is the true test for breach of duty as a director to act in good faith and in the ‘best interest of the company'? The question is whether it is a subjective or objective test to judge whether directors acted in the best interest of the company. It is to this we now turn. S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 [166] In our judgment, the correct test combines both subjective and objective tests. The test is subjective in the sense that the breach of the duty is determined on an assessment of the state of mind of the director; the issue is whether the director (not the court) considers that the exercise of discretion is in the best interest of the company. In this regard, in Corporate Law by Hans Tjio, Pearlie Koh and Lee Pey Woan at p 361, the learned authors said that the director’s conduct is tested by reference to an essentially subjective barometer. The classic formulation of the subjective element in the test is found, as we have discussed earlier at para 157, in Re Smith & Fawcett, Limited in which Lord Greene MR said that ‘directors must exercise their discretion bona fide in what they consider — not what a court may consider — is in the interest of the company’. The duty is to act in what the director believes, not what the court believes, to be the best interest of the company. The subjective nature of the test can be seen in Regentcrest Plc (in liq) v Cohen [2001] BCC 494 where Jonathan Parker J said: … the question whether the director honestly believed that his act or omission was in the interests of the company. The issue is as to the director’s state of mind. No doubt, where it is clear that the act or omission under challenge resulted in substantial detriment to the company, the director will have a harder task persuading the court that he honestly believed it to be in the company’s interest; but that does not detract from the subjective nature of the test. [167] The test is objective in the sense that the director’s assessment of the company’s best interest is subject to an objective review or examination by the courts. In an article entitled Directors’ Duty to Act in the Interests of the Company: Subjective or Objective? [2015] JBL Issue 2, the writers said that courts have introduced objective elements into the duty to act in good faith and in the best interest of the company to address the problem identified by Browen LJ in Hutton v West Cork Railway Company (1883) 23 Ch D 654 at p 671 where the learned judge said: S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 Bona fides cannot be the sole test, otherwise you might have a lunatic conducting the affairs of the company, and paying away its money with both hands in a manner perfectly bona fide yet perfectly irrational. The test must be what is reasonably incidental to, and within the reasonable scope of carrying on, the business of the company. [168] The Singapore Court of Appeal in Goh Chan Peng and Others v Beyonics Technology Ltd and another and another appeal [2017] 2 SLR 592; [2017] SGCA 40 explained the preferred approach which combines both subjective and objective tests as follows: Indeed, there are both subjective and objective element in the test. The subjective element lies in the court’s consideration as to whether a director had exercised his discretion bona fide in what he considered (and not what the court considers) is in the interests of the company: Re Smith & Fawcett Ltd [1942] Ch 304 at 306, as accepted by this court in Cheong Kim Hock v Lin Securities (Pte) (in liquidation) [1992] 1 SLR (R) 497 at 26 and in Ho Kang Peng v Scintronix Corp Ltd (formerly known as TTL Holdings Ltd) [2014] 3 SLR 329 (‘Ho Kang Peng’) at 37. Thus, a court will be slow to interfere with commercial decisions made honestly but which, on hindsight, were financially detrimental to the company. The objective element in the test relates to the court’s supervision over directors who claim to have been genuinely acting to promote the company’s interest even though, objectively, the transactions were not in the company’s interests. The subjective belief of the directors cannot determine the issue: the court has to assess whether an intelligent and honest man in the position of a director of the company concerned could, in the whole of the existing circumstances, have reasonably believed that the transactions were for the benefit of the company. This is the test set out in Charterbridge Corporation Ltd v Lloyds Bank Ltd [1970] 1 Ch 62 S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 (at 74) and it has been applied here since adopted by this court in Intraco Ltd v Multi-Pak Singapore Pte Ltd [1994] 3 SLR (R) 1064 (at [28]). [32] The Federal Court at [177] and [178] reaffirmed the Charterbridge Principle exposited by Zainun Ali JCA (later FCJ) in Pioneer Haven Sdn Bhd v Ho Hup Construction Co Bhd & Anor and other appeals in that, to challenge a decision of the directors, the test is whether: an intelligent and honest man in the position of the director of the company concerned, could in the whole of the existing circumstances have reasonably believed that the transactions were for the benefit of the company. Evaluations and Findings Whether D1 and D2 have breached their duties as directors of the Plaintiff [33] Guided by the instructive principles set out in the preceding paragraphs, I now deal with this issue. [34] As starters, having heard the evidence of the 10 witnesses called for the Plaintiff, examined and read the relevant documents and submission of the parties, I am of the respectful view that the Plaintiff has proven a prima facie case on a balance of probability that D1 and D2 had acted in breach of their duties to the Plaintiff and the Plaintiff has suffered losses as a consequence of their breaches of duties. [35] In this regard, the Plaintiff has adduced clear evidence to show: S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 35.1 A total of RM32,784,000 was paid by the Plaintiff and its financiers to KSG for the supply of the factory lines including auxillary equipment. Out of this sum, RM13,100,000 was paid by KSG to Equatorion purportedly for supply of auxiliary equipment based on fabricated documents (invoices and official receipts from Equatorion); 35.2 Mr. Tsen, PW1 from KSH testified that in March and April 2014, KSG completed the supply, installation and commissioning of the Main Lines; when commissioning the factory lines, he observed that the auxiliary equipment had already been supplied and installed by another supplier; neither he nor KSG had prior dealings with Equatorion in respect of the auxiliary equipment; In May 2014, KSG received invoices from Equatorion for amount of RM16,000,000 and he was asked 2 months later by D1 to pay them; he received 2 receipts from Equatorion totalling RM2,900,000 dated 24.03.2014 and 14.05.2014 only in August 2014; 35.3 Madam Kok, PW9 assistant manager between 2007 to 2020 from the Plaintiff’s Procurement Department gave evidence of considerable weight that she knew Equatorion’s business is that of a canteen food supplier; there were no quotations and purchase orders between Equatorion and the Plaintiff, it was standard operating procedure for the Procurement Department to be involved in the S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 procurement of assets, there was no such appointment of Equatorion by Plaintiff nor purchase orders or quotations issued between the Plaintiff and Equatorion to supply the auxiliary equipment; she testified that the auxiliary equipment was not supplied by Equatorion, but was in fact supplied by the following third- party suppliers: (i) Ripcol Industries Sdn Bhd (“Ripcol”) supplied items relating to the chlorination system of the Factory Lines; (ii) Xin Xin Engineering Sdn Bhd supplied items relating to the glove stripping / autostripping machines of the Factory Lines; (iii) Perfect Combustion supplied items relating to the gas burners of the Factory Lines; and (iv) Zibo Haoxiang Ceramics Trading or PT Mark Dynamics supplied items relating to the glove formers of the Factory Lines. In her Q&A 20, 22 and 22, PW9 testified: i. “...Equatorion was Dato’ Lee’s company.”; ii. “...it was common knowledge that “Equatorion is Dato Lee’s company.”; S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 iii. “anything related to Equatorion would require Dato’ Lee’s approval”; iv. she was acting on the instructions of D1 in respect of Equatorion. 35.4 Chia Jenn Chuan (PW8) business development director from Ripcol testified that Ripcol is the sole supplier of the chlorination systems of the Plaintiff’s Factory Lines; Ripcol for its supply has received payment from the Plaintiff. Both PW8 and PW1 from KSG testified that they have never heard of Equatorion being in the business of supply, install and/or commission of auxiliary equipment; in this regard, the Court notes that D2’s submission that no one from Ripcol was called to give evidence and that an adverse inference should be drawn against the Plaintiff is misconceived; 35.5 KSG paid Equatorion RM13,100,000 as evidenced by its bank statements; the receipt of the RM13,100,000 by Equatorion from KSG is also corroborated by the bank statements of Equatorion as confirmed by Puan Rozaimah bin Abdul Razak (PW2), branch manager of RHB Banking Berhad (where Equatorion’s bank account was opened); 35.6 D1 and D2 ultimately controlled Equatorion: S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 35.6.1 D2 held 66.67% of Equatorion’s shareholding (100,000 out of 150,000 ordinary shares); 35.6.2 Lee Soon Khim, D1’s cousin (see testimony of PW10, Martin Tupila, forensic accountant from Ernst and Young Advisory Pte. Ltd, Singapore) and a known nominee and/or agent of D1 and D2 is a director of Equatorion; 35.6.3 Cheong Ah Yoke, a Senior Project Executive and an employee of the Plaintiff from 2005 to 2019 whose appointment was signed off by D1 in the Plaintiff and other companies related to D1 and D2 namely AHP and AMP, is a director and shareholder in Equatorion with 33.33% shareholding (49,998 of 150,000 ordinary shares); 35.6.4 D1 is a signatory for: (i) 2 out of 3 Equatorion’s bank accounts in RHB Bank Nilai as confirmed by PW2, the Branch Manager of RHB Bank Berhad, Nilai branch; and (ii) Various commercial documents for Equatorion as confirmed by Fadzillah binti Awaludin (PW4), Plaintiff’s Accounts Assistant Manager. 35.7 D1 paid himself RM3,663,000 through Equatorion: S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 35.7.1 On 09.09.2014, RM300,000 was paid via RENTAS; 35.7.2 On 26.08.2015, RM1,600,000 was paid via Equatorion; D1 was one of the signatories of the cheque; 35.7.3 On 26.8.2015, another RM1,763,000 was paid via Equatorion to the Plaintiff where D1 is one of the signatories which was classified in Plaintiff’s books “FOR PRODUCTION LINE COST” and then on 30.11.2015, the entry was re-classified as “AMOUNT OWING TO DIRECTOR-LSH”; 35.8 D1 and/or D2 were former directors and/or shareholders of AHP, AMP, Asia Cosmopolitan and GTH – these companies received in total a sum of RM5,371,000 from the secret profit made by D1 and D2 vide Equatorion; 35.9 Equatorion’s invoices and report and financial year statement as at 31.12.2010 bear the same address as the Plaintiff; 35.10 D1’s employees eg. PW9 were used to faci litate Equatorion’s activities within the Plaintiff ’s premises; and S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 35.11 Other than the questionable invoices and receipts, there is no evidence to show that Equatorion had actually supplied the auxiliary equipment. [36] In the face of such demonstrably overwhelming evidence, D1 and D2 in my view have a case to answer in respect of the fictitious supply of auxillary equipment by Equatorion through fabricated invoices and receipts; secretly profi ting of the sum of RM13,100,0000 and gaining a personal benefit therefrom that point towards their breaches of duties as directors . I find the fate of the claim against them for breach of duties as directors was sealed when both D1 and D2 did not testify since they claimed in their defence that the transactions entered into with KSG was proper. Their subjective belief is simply not good enough, it was critical for them to testify on what they D1 and D2 as directors believe and to enable the court to assess their state of mind and the motive on which they acted on the basis of whether an intelligent and honest man in the position of D1 and D2 as directors of the Plaintiff could, in the whole of the existing circumstances, have reasonably believed that the transactions with KSG were for the benefit of the Plaintiff company. It would be critical to ascertain the true state of affairs by resort to cross-examination. D1 and D2 irrevocably undermined their position by not testifying. I can be forgiven for concluding that both were avoiding cross examination. It behoves them to give evidence to rebut the Plaintiff’s case. S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 36 [37] In Takako Sakao (f) v Ng Pek Yuen (f) Anor (2009) 6 MLJ 751, the Federal Court speaking through Gopal Sri Ram FCJ, provided a useful guide when there is no evidence put forth by a party in a civil case: “[4] In our judgment, two consequences inevitably followed when the first respondent who was fully conversant with the facts studiously refrained from giving evidence. In the first place, the evidence given by the appellant ought to have been presumed to be true. As Elphinstone CJ said inWasakah Singh v Bachan Singh (1931) 1 MC 125 at p 128: If the party on whom the burden of proof lies gives or calls evidence which, if it is believed, is sufficient to prove his case, then the judge is bound to call upon the other party, and has no power to hold that the first party has failed to prove his case merely because the judge does not believe his evidence. At this stage, the truth or falsity of the evidence is immaterial. For the purpose of testing whether there is a case to answer, all the evidence given must be presumed to be true. Now, what the trial judge did in the present case is precisely what he ought not to have done. He expressed dissatisfaction with the appellant's evidence without asking himself that most vital question: does the first defendant/respondent have a case to answer? This failure on the part of the trial judge is a serious non-direction amounting to a misdirection which occasioned a miscarriage of justice. The trial judge was at that stage not concerned with his belief of the appellant's evidence. She had given her explanation as to the discrepancies in the figures. And her evidence does not appear to be either inherently incredible or inherently improbable. In these circumstances it was the duty of the judge to have accepted her evidence as true in the absence of any evidence from the first respondent going the other way. He however failed to direct himself in this fashion thereby occasioning a serious miscarriage of justice. S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 37 [5] The second consequence is that the court ought to have drawn an adverse inference against the first respondent on the amount of the appellant's contribution to the purchase price as well as the existence and the terms of the mutual understanding or agreement that she had with the first respondent. Where, as here, the first respondent being a party to the action provides no reasons as to why she did not care to give evidence the court will normally draw an adverse inference. SeeGuthrie Sdn Bhd v Trans-Malaysian Leasing Corp Bhd [1991] 1 MLJ 33. See alsoJaafar bin Shaari & Anor (suing as Administrators of the Estate of Shofiah bte Ahmad, deceased) v Tan Lip Eng & Anor [1997] 3 MLJ 693 where Peh Swee Chin FCJ said: 'The respondents had chosen to close the case at the end of the appellants' case. Although they were entitled to do so, they would be in peril of not having the evidence of their most important witness and of having an adverse inference drawn against them for failing to call such evidence should the circumstances demand it.' ….. The other case isCrawford v Financial Institutions Services Ltd (Jamaica) [2005] UKPC 40, where Lord Walker of Gestingthorpe when delivering the advice of the Privy Council said: It is well settled that in civil proceedings the court may draw adverse inferences from a defendant's decision not to give or call evidence as to matters within the knowledge of himself or his employees. Sarkar on Evidence (16th Ed) at p 1837 states: It is the bounden duty of a party personally knowing the whole circumstances to give evidence and to submit to cross-examination. Non-appearance as a witness would be the strongest possible circumstance to discredit the truth of his case Gurbakhsh v Gurdial AIR 1927 PC 230. S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 38 [6] In the present instance, there is no doubt that the first respondent had intimate knowledge of the material facts relevant to the dispute and that she was privy to the several steps through which the transaction had proceeded. Based on the authorities already cited, it is patently clear that the trial judge in the present case ought to have held that the failure of the first respondent to give evidence apart from discrediting her case strengthened the appellant's case on those vital points that lay at the axis of the dispute between the parties. This, the trial judge clearly omitted to do. Instead, he treated the first respondent's failure to appear and give evidence as a matter of no apparent consequence. His non-direction upon such a crucial point as this certainly amounts to a misdirection which has occasioned a miscarriage of justice. To conclude the first issue, it is our judgment that there was no judicial appreciation of the appellant's evidence. A reasonable tribunal correctly directing itself on the facts and the relevant law would have held that the appellant had indeed contributed RM194,610 towards the purchase price of the building; that there was a mutual understanding between the appellant and the first respondent that they shall be beneficial co owners of the property in question in equal shares; and that the first respondent had acted in breach of that understanding.” [38] Both D1 and D2 are clearly material witnesses due to their forming the majority of the Board of Directors of the Plaintiff and their obvious control of Equatorion and beneficial interest therein. This court is thus entitled to draw an adverse inference against D1 and D2 where, as here, both were conversant thoroughly with the material facts of the case, advanced no credible reason as to why they did not care to give evidence. Following Takako Sakao , such failure to testify also entitles this court to presume to be true the evidence given by the Plaintiff’s witnesses. At any rate, even after reminding myself of the limits that the court does not substitute its own S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 39 decision with that of the directors, since the decision to enter into the KSG transactions is a management decision, even so, from the body of evidence adduced by the Plaintiff, I find inflating the cost for each of the factory line by RM4,000,000 and have the monies then siphoned to Equatorion which both D1 and D2 are beneficially interested in, and at the expense of the Plaintiff, is not conduct of loyalty and fidelity to the Plaintiff when both of them were placed in a position of confidence and trust. An intelligent and honest man in the positions of either D1 and D2 simply could not, in the whole of the existing circumstances, have reasonably believed that what they did was acting primarily in good faith, bona fide and would be in the best interest of the Plaintiff company. As fiduciaries, the foremost consequence is that both would owe a duty of undivided loyalty to the Plaintiff and must be held accountable. They had from the evidence adduced, undoubtedly personally profited from the KSG transactions when a substantial portion of the funds for the purchase of the factory lines originating from the Plaintiff and their financiers ended up in D1’s own bank account or in companies related to them. It is pure and simple a case of the proverbial “Harap pagar, pagar makan padi”. [39] In Words, Phrases and Maxims Legally and Judicially Defined - Anandan Krishnan, “good faith” is defined amongst others, as: “The phrase ‘good faith’ lays emphasis on honesty and fair play to the expulsion of any pretence, deceit and wanton or willful negligence. (Ram Saran v Kuriamal, 1988 AL] 1288). The words..."good faith’ conveys the absence of intent to deceive. (Sir Padam Pat Singhania v Commissioner of Gift Tax 1988 UPTC 71). S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 40 ‘In order to act in good faith, a person must act honestly. A “'person who acts in a particular manner in the discharge of his duties in spite of the knowledge and consciousness that injury to some one or group of persons is likely to result from his act or omission he cannot be said to act with honesty or good faith’. [40] It is trite that where there is a question as to the good faith of a transaction between parties, one of whom stands to be the other in position of active confidence, the burden of proving the good faith of the transaction is on the party who is in position of active confidence. See: Khaw Cheng Bok & Anor v Khaw Cheng Poon & Ors [1998] 3 MLJ 457; Tengku Abdullah Ibni Sultan Abu Bakar & Ors v Mohd Latiff bin Shah Mohd & Ors and other appeals [1996] 2 MLJ 265; Lim Kim Hua v Ho Chui Lan & Anor [1995] 3 MLJ 165; Loi Hieng Chiong v Kon Tek Shin [1983] 1 MLJ 31; Siti Haida bt Ismail v Siti Maznah bt Yahya & Ors (as administrators for the estate of Yahya bin Shafii, deceased) [2018] 6 MLJ 701CA BUT D1 and D2 failed to testify. I am thus constrained to find that bad faith is not dispelled. [41] Evident from a consideration of the totality of the evidence adduced by the Plaintiff, there is no escaping that D1 and D2 have indubitably failed to exercise their powers as directors for a proper purpose, failed to exercise reasonable care skill and diligence in the discharge of their duties; breached their duty to act in good faith and in the best interest of the Plaintiff, breached their duty of permitting their interest to conflict with that of the Plaintiff, breached their duty not to make a secret profit with impugnity and breached their duty to disclose to the Plaintiff’s Board their personal interest in Equatorion. The Plaintiff’s shareholders’ consent at a general meeting was not sought to allow D1 and D2 to make the profit of RM13,100,000. Even if D2 did not actively participate in the KSG transactions, she is not absolved S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 41 as by her silence, amounts to her tacit approval of all that was wreaked by D1, she was thus complicit in the plunder of the Plaintiff. D2 as majority shareholder of Equatorion which is a canteen food supplier, in the circumstances of extraordinary bounty of multi millions of Ringgit going through its bank accounts, should have excited D2’s grave suspicion and vigilance. She had allowed Equatorion to be used as a vehicle by D1 to loot the Plaintiff in dereliction of her duties to safeguard the interests of the Plaintiff as a whole. With utmost respect, her post trial submission does not assist her one whit as the Plaintiff’s evidence stands unrebutted. [42] Issue 1 is answered in the affirmative. Whether the Plaintiff had suffered losses as a result of D1 and D2’s breaches and if so, liable to compensate the Plaintiff for such losses. [43] As alluded earlier, a total sum of RM32,784,000 was paid by the Plaintiff and its financiers to KSG for the supply of the factory lines including auxillary equipment. Out of this sum, it is patently clear that RM13,100,000 was paid by KSG to Equatorion. PW10 testified that from a company search, Equatorion has been dissolved on 23.5.2018. I find the Plaintiff has suffered losses in respect of this sum of RM13,100,000 as well as finance charges on the said sum arising from the various hire-purchase agreements with the financiers which PW10 calculated at RM2,532,608.04 as set out in his witness statement at enc. 225. I also find that the Plaintiff’s losses are causally connected directly to D1 and D2’s breaches of directors’ statutory and fiduciary duties to the Plaintiff. S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 42 [44] It is trite that the remedy imposed on the wrongdoers for breach of fiduciary duties would be compensation in equity. The measure of compensation is to put the Plaintiff in the position it would have been had the breach not been committed, see Newacres Sdn Bhd v Sri Alam Sdn Bhd [2000] 2 MLJ 353 (FC) at p 378. [45] It follows there will be judgment for the Plaintiff as follows: 45.1 A declaration that D1 and D2, Lee Son Hong and Too Sooi Keng have breached their fiduciary obligations as directors of the Plaintiff under the Companies Act 2016 and/or at common law; 45.2 A declaration that D1 and D2 are jointly and/or severally liable to pay and/or account to the Plaintiff the sum of RM13,100,000; 45.3 The sum of RM RM2,532,608.04 as finance charges on the sum of RM13,100,000; 45.4 Interest at 5% per annum on the said sums of RM13,100,000 and RM2,532,608.04 from date of judgment to full payment; 45.5 costs of RM120,000.00 subject to allocator to be paid to the Plaintiff; 45.6 All sums including interest and costs awarded to the Plaintiff are to be paid by D1 and D2 jointly and/or severally to the Plaintiff. S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 43 [46] I have not overlooked that D2 in her submission has disputed that PW10 is not an expert. Even so, he is a Plaintiff’s witness with 20 years background in accountancy. In awarding the sum of RM2,532,608.04 as finance charges incurred on the sum of RM13,100,000, I have considered that D1 and D2 have not rebutted PW10’s calculation which I find to be a genuine estimate. The burden is on D1 and D2 to show that the calculation was manifestly erroneous but both offered not a jot of evidence to assist the court. [47] As this is not a bifurcated trial, there will be no separate assessment of damages on interest paid by the Plaintiff to various financiers arising from RM13,100,000 as urged upon this court by the Plaintiff. Added to that, the request at this eleventh hour, makes it wholly impracticable for me to arrange a hearing due to my wider responsibilities to other litigants before I retire from the judiciary next weekend. [48] The costs awarded commensurate with the criteria in O 59 r 16 Rules of Court 2012 and includes the costs of the application for stay of proceedings both here and at the Court of Appeal where costs was ordered to be costs in the cause. Dated: 17th November 2023 - sgd - ………………………. Liza Chan Sow Keng Judge High Court of Malaya at Kuala Lumpur S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 44 COUNSEL: For the Plaintiff : Nathalie Annette Kee Messrs Thomas Philip For the 2nd Defendant : Emily Wong Messrs Wong & Co. CASES REFERRED: Tan Kah Khiam v Liew Chin Chuan & Anor [2007] 2 MLJ 445 Md Hilmi bin Md Noor v Azman bin Ahmah & Ors [2016] 6 MLJ 205 Tenaga Nasional Berhad v Bukit Lenang Development Sdn Bhd [2017] MLJU 782 U-RE Auto Sdn Bhd v York Pacific Holdings Ltd [2004] 3 CLJ 172 Dato’ Pardip Kumar Kukreja & Anor v Vell Paari a/l Samy Vellu [2016] 4 MLJ 649; [2015] 1 LNS Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697; [2017] 5 CLJ 418 Yeohata Machineries Sdn Bhd & Anor v Coil Master Sdn Bhd & Ors [2015] 6 MLJ 810 Board of Trustees of the Sabah Foundation & Ors v Datuk Syed Kechik bin Syed Mohamed & Anor [2008] 5 MLJ 469 Avel Consultants Sdn Bhd & Anor v Mohamed Zain Yusof & Ors [1985] 2 MLJ 209 Pioneer Haven Sdn Bhd v Ho Hup Construction Co Bhd & Anor and other appeals [2012] 3 MLJ 616 Taz Logistics Sdn Bhd v Taz Metals Sdn Bhd & Ors [2019] 3 MLJ 510; [2019] 2 CLJ 48 S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 45 Petra Perdana Berhad v. Tengku Dato’ Ibrahim Petra Tengku Indra Petra & Ors [2014] 11 MLJ 1 Tengku Dato’ Ibrahim Petra Tengku Indra Petra v. Petra Perdana Berhad & Another Case [2018] 2 MLJ 177 Takako Sakao (f) v Ng Pek Yuen (f) Anor (2009) 6 MLJ 751 Newacres Sdn Bhd v Sri Alam Sdn Bhd [2000] 2 MLJ 353 STATUTE/LEGISLATION REFERRED: Section 213, 214, 221, 218 and 219 of the Companies Act 2016 S/N Ooa4fcbV3UeZnM5jGSxm3w **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

JA-29NCC-745-12/2022

PEMIUTANG PENGHAKIMANCOSCO SHIPPING LINES (MALAYSIA) SDN BHDPENGHUTANG PENGHAKIMANMUHAMMAD NUR RAMADHAN B. ABDULLAH

Sama ada permohonan Penghutang Penghakiman untuk mengetepikan Notis Kebankrapan yang difailkan dan diserahkan oleh Pemiutang Penghakiman wajar dibenarkan

22/11/2023

Tuan Arun A/L Noval Dass

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=255c1d5f-d847-422a-a19f-35721ff25070&Inline=true

1 DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA DALAM PERKARA KEBANKRAPAN NO.JA-29NCC-745-12/2022 BERKENAAN : MUHAMMAD NUR RAMADHAN B. ABDULLAH … PENGHUTANG PENGHAKIMAN EX-PARTE : COSCO SHIPPING LINES (MALAYSIA) SDN BHD … PEMIUTANG PENGHAKIMAN ---------------------------------------------------------------------------------------------------- ALASAN PENGHAKIMAN ---------------------------------------------------------------------------------------------------- 22/11/2023 13:32:48 JA-29NCC-745-12/2022 Kand. 30 S/N Xx1cJUfYKkKhnzVyH/JQcA **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Pengenalan 1. Pemiutang Penghakiman (selepas ini dirujuk sebagai JC) telah memulakan suatu tindakan sivil terhadap Penghutang Penghakiman (selepas ini dirujuk sebagai JD) dan terhadap Bonanza Shipping Agencies Sdn Bhd (selepas ini dirujuk sebagai Bonanza) yang dinamakan sebagai Defendan Kedua, antara lain bagi caj-caj demuraj kontainer-kontainer Defendan-defendan. 2. JD dan Bonanza telah diwakili oleh peguam yang sama dalam tindakan sivil tersebut. JD dan Bonanza telah memfailkan Pembelaan mereka masing-masing melalui peguam tersebut. Setelah perbicaraan penuh, Mahkamah Majistret telah membenarkan tuntutan JC pada 18.10.2022. 3. JD tidak merayu terhadap keputusan Mahkamah Majistret tersebut. JC telah mengeluarkan surat tuntutan kepada JD namun JD masih enggan membayar tuntutan JC. Maka, JC telah memfailkan tindakan kebankrapan ini terhadap JD pada 14.12.2022. 4. JC telah menyampaikan Notis Kebankrapan terhadap JD secara kediri pada 22.12.2022. Lanjutan itu, JD telah memfailkan Saman Dalam Kamar (Lampiran 11) pada 19.4.2023 untuk antara lain mengetepikan Notis Kebankrapan tersebut yang menjadi subjek pertikaian di hadapan Mahkamah ini. S/N Xx1cJUfYKkKhnzVyH/JQcA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 Analisis dan keputusan Mahkamah Isu Pertama: Jumlah tuntutan dalam Notis Kebankrapan adalah berlebihan 5. JD berhujah bahawa Penghakiman bertarikh 18.10.2022 hanya memerlukan JD membayar wang sebanyak RM64,083.20 dan bukan keseluruhan RM128,166.40, kerana JD adalah salah satu pihak daripada dua pihak yang perlu membayar tuntutan JC. JD berhujah bahawa Penghakiman tersebut tidak menyatakan bahawa Defendan- defendan perlu membayar JC secara bersesama dan berasingan. 6. Sebagai sokongan kepada hujahan ini, JD merujuk kepada kes Sumathy a/p Subramaniam v Subramaniam a/l Gunasegaran and another appeal [2017] 6 MLJ 753; [2018] 2 CLJ 305; [2017] MLRAU 280; [2017] 5 AMR 346 di mana Mahkamah Rayuan memutuskan bahawa:- “[12] It is the argument of both appellants that while the respondent may be entitled to enter judgment for the same single sum, which the respondent did, the liability of each of them is necessarily joint. This is because, the summary judgment that was entered has not specified that both appellants are jointly and severally liable for that single sum. Where the judgment is silent or has not specified that liability is joint and several, the liability is necessarily joint. Where liability is joint, each of the appellant as defendant, shares that liability equally - see In Re Dato' Dr Elamaran M Sabapathy; ex p RHB Bank Bhd [2011] 10 CLJ 262. And so, when it comes to enforcing the judgment, the respondent has a right to enforce only half the judgment sum against each appellant. The respondent is not entitled to enforce the full sum against both of them, certainly not at the same time. [13] We agree with the submissions of learned counsel for the appellants…” S/N Xx1cJUfYKkKhnzVyH/JQcA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 7. Sebagai isu permulaan, Mahkamah merujuk kepada seksyen 3(2) Akta Insolvensi 1967 (selepas ini dirujuk sebagai Akta Tersebut) yang memperuntukkan bahawa:- “(2) A bankruptcy notice under this Act shall be in the prescribed form and shall state the consequences of non-compliance therewith and shall be served personally to a debtor: Provided that a bankruptcy notice- …(ii) shall not be invalidated by reason only that the sum specified in the notice as the amount due exceeds the amount actually due unless the debtor within the time allowed for payment gives notice to the creditor that he disputes the validity of the notice on the ground of such mistake; but if the debtor does not give such notice he shall be deemed to have complied with the bankruptcy notice, if within the time allowed he takes such steps as would have constituted compliance with the notice had the actual amount due been correctly specified therein.” 8. Peruntukan tersebut dengan jelas menyatakan bahawa setelah menerima Notis Kebankrapan, JD seharusnya memberi notis dalam tempoh masa yang dinyatakan dalam Notis Kebankrapan kepada JC bahawa jumlah yang dituntut adalah melebihi dari apa yang sepatutnya dituntut oleh JC, bagi membolehkan JD mencabar Notis Kebankrapan tersebut. Dalam hal ini, Mahkamah merujuk kepada kes Kuala Excel Sdn Bhd v Chua Liang Hong [2022] MLJU 1350; [2022] 1 LNS 1336; [2022] MLRHU 1179; [2022] AMEJ 0802 di mana Mahkamah memutuskan bahawa:- “[24] The true meaning and purport of proviso (ii) to s. 3(2) of the Act is that, if within the time allowed for payment under the BN the JD does not object to the amount stated in the BN, he cannot thereafter object to the amount or ask for the BN to be invalidated on that ground.” S/N Xx1cJUfYKkKhnzVyH/JQcA **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 9. Dalam kes di hadapan Mahkamah, Notis Kebankrapan telah diserahkan kediri kepada JD pada 22.12.2022. JD memfailkan Notis Perlantikan Peguamcara dan Saman Dalam Kamar pada 19.4.2023 iaitu selepas hampir 4 bulan. Namun, tiada sebarang keterangan di hadapan Mahkamah bahawa JD telah memberi notis sebagaimana dikehendaki di bawah seksyen 3(2)(ii) Akta Tersebut kepada JC. Mahkamah juga dapati permohonan JD tersebut hanya difailkan selepas Petisyen Pemiutang difailkan pada 6.3.2023 dan diserahkan secara kediri kepada JD pada 4.4.2023. Malah, JD sendiri mengakui dalam perenggan 5 Afidavit Balasan JD (Lampiran 16) berkenaan kelewatan pemfailan Saman Dalam Kamar dalam Lampiran 11. 10. Maka, berdasarkan rekod di hadapan Mahkamah, JD jelas telah memungkiri peruntukan seksyen 3(2)(ii) Akta Tersebut. Mahkamah dalam hal ini merujuk kepada kes Mahkamah Rayuan Goh Kein Hooi v OCBC Bank (Malaysia) Berhad & Another Appeal [2014] 1 MLJ 516; [2014] 4 CLJ 274; [2014] 1 MLRA 287; [2013] 5 AMR 635 di mana Mahkamah memutuskan bahawa:- “[9] Here, the JD gave no such notice. It must be borne in mind that the JD came into the picture as early as on 14 September 2010 and that was during the stage of the creditors' petition. It has been held in Loh Kok Huah, Re: Ex P; Ban Hin Lee Bank Bhd [1991] 3 CLJ 1817; [1991] 3 CLJ (Rep) 183, that a judgment debtor who seeks to invalidate a bankruptcy notice on the ground that the amount claimed therein exceeds the amount actually due must do so within the time stipulated in the bankruptcy notice for the payment to be made expeditiously. And every bankruptcy notice prescribes that the payment of the amount claimed therein must be made within seven days after the service of the notice not including the day of the service. [10] In so far as this appeal is concerned, on the authority of the Court of Appeal case in David Lim Hong Kee v. Perwira Affin Bank Berhad [2003] 4 CLJ 44, the BN was duly served based on the date of its advertisement and that would be on 12 November 2009. The JD had seven days from 13 November 2009 to challenge the amount claimed in the BN. Unfortunately, the JD did not do so. The challenge is mounted too late in the day - at the time when the CP is being heard.” S/N Xx1cJUfYKkKhnzVyH/JQcA **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 11. Dalam hal ini, Mahkamah juga dapati JD tidak pernah memohon sebarang lanjutan masa dalam Lampiran 11 berkenaan keperluan memberi notis dalam tempoh masa yang ditetapkan menurut seksyen 3(2)(ii) Akta Tersebut. Undang-undang adalah mantap bahawa tempoh yang dinyatakan dalam seksyen 3(2)(ii) Akta Tersebut adalah mandatori dan Mahkamah tidak mempunyai sebarang bidang kuasa untuk merektifikasi pengabaian peruntukan mandatori oleh JD. Dalam hal ini, Mahkamah merujuk kepada kes Re Liew Choo; Ex P Chuah Teng Heng [2016] MLJU 1836; [2016] 9 CLJ 598; [2016] MLRHU 763; [2016] AMEJ 1611 di mana Mahkamah Tinggi memutuskan bahawa:- “[20] The preponderance of case law authorities on the point is thus unmistakably well established. Adherence to the time period stated in s. 3(2)(ii) of the BA is mandatory. Non-compliance is not a mere irregularity capable of attracting the curative provisions of s. 131 of the BA for it is established law that not all forms of irregularities will justify the setting aside of a bankruptcy notice… [22] Clearly, s. 131 is designed more to cure defects that would not mislead or prejudice a debtor. In the instant case, the non-compliance and defect was occasioned by the JD himself. In this context, it would be a tautology to speak of the JD being misled by his own mistake.” 12. Jikapun Mahkamah ingin melanjutkan tempoh masa menurut seksyen 93(4) Akta Tersebut atas usul Mahkamah sendiri, Mahkamah berpendapat bahawa JD tidak memberikan sebarang alasan yang munasabah untuk mewajarkan lanjutan tersebut dalam permohonan JD. Mahkamah dapati antara asas untuk permohonan mengetepikan Notis Kebankrapan oleh JD adalah keberhutangan di bawah penghakiman tersebut wajar ditanggung oleh kedua-dua Defendan secara sama rata memandangkan Penghakiman yang dimasukkan didakwa tidak menyatakan JD bertanggungan “bersesama dan berasingan” dengan defendan yang lain. S/N Xx1cJUfYKkKhnzVyH/JQcA **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 13. Asas ini sememangnya telah wujud semasa JD menerima Notis Kebankrapan. Selain menyatakan kelewatan yang dialami adalah kesilapan bona fide dan tidak disengajakan oleh JD, tiada sebarang penjelasan yang munasabah dari JD berkenaan kelewatan ini. Malah, JD menyatakan bahawa peguam yang mewakili JD telah memfailkan dokumentasi di Mahkamah Majistret tanpa pengetahuan JD dan walaupun nama JD tersenarai dalam senarai saksi, JD tidak pernah dipanggil untuk memberi keterangan di Mahkamah. JD mendakwa hanya mengetahui berkenaan penghakiman yang dimasukkan selepas perbicaraan penuh, hanya selepas menerima penghakiman tersebut dari peguam JD. Namun, JD tidak pernah mengambil langkah mengetepikan Penghakiman tersebut. Malah, apabila JD diserahkan dengan Notis Kebankrapan pada 22.12.2022, wujud persoalan mengapa JD tidak mengambil sebarang tindakan terutama untuk memberi notis mengenai tuntutan berlebihan sehingga CP diserahkan kepada JD pada 4.4.2023. 14. Maka, atas alasan ini sendiri, permohonan JD untuk mengetepikan Notis Kebankrapan atas dakwaan JC menuntut melebihi apa yang sepatutnya dalam Notis Kebankrapan wajar ditolak kerana JD gagal memenuhi keperluan di bawah seksyen 3(2)(ii) Akta Tersebut. Namun, bagi kesempurnaan, Mahkamah akan meneliti merit permohonan JD. 15. JD berhujah bahawa jumlah yang dituntut oleh JC adalah salah dan berlebihan kerana JC menuntut RM128,166.40 iaitu jumlah keseluruhan penghakiman tersebut. JD berhujah bahawa berdasarkan terma-terma penghakiman tersebut, penghakiman yang S/N Xx1cJUfYKkKhnzVyH/JQcA **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 dimasukkan adalah terhadap kedua-dua Defendan tanpa menyatakan bahawa JD dikehendaki untuk membayar jumlah penghakiman tersebut secara bersesama dan berasingan dengan Defendan yang lain. 16. JC dalam hujahannya menafikan dakwaan JD dan berhujah bahawa penghakiman telah dimasukkan terhadap JC dan Bonanza secara bersesama dan/atau berasingan. Maka, JC berhujah bahawa dakwaan JD bahawa JD hanya perlu membayar separuh daripada penghakiman adalah tidak benar. 17. Mahkamah merujuk kepada penghakiman yang dimasukkan dalam tindakan asal seperti berikut (Eksibit A-2 Lampiran 15):- “MAKA ADALAH PADA HARI INI DIHAKIMI bahawa Penghakiman dimasukkan terhadap Defendan Pertama dan Defendan Kedua secara bersesama dan/atau berasingan bagi:- 1. RM68,200.00; 2. Faedah pada kadar 0.1% sehari berdasarkan jumlah penghakiman dari 24.9.2020 sehingga tarikh pembayaran penuh; dan 3. Kos sebanyak RM4,588.00 dibayar kepada Plaintif.” 18. Mahkamah dapati adalah jelas penghakiman dimasukkan terhadap Defendan Pertama dan Defendan Kedua secara “bersesama dan berasingan”. Berdasarkan penghakiman tersebut, JC telah membuat tuntutan terhadap JD dalam Notis Kebankrapan seperti berikut:- S/N Xx1cJUfYKkKhnzVyH/JQcA **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 (a) Jumlah RM68,200.00 (b) Faedah pada kadar 0.1% sehari RM55,378.00 (c) berdasarkan Jumlah Penghakiman dari 24.9.2020 sehingga 14.12.2022 (dan berterusan) Kos RM4,588.00 Jumlah RM128,166.40 19. Mahkamah dapati tuntutan JC adalah menurut penghakiman bertarikh 18.10.2022 yang memasukkan penghakiman terhadap Defendan-defendan secara bersesama dan berasingan. Penghakiman tersebut tidak pernah diketepikan dan/atau dirayu oleh JD. Maka, Penghakiman tersebut adalah Penghakiman yang sah dan kebergantungan JD terhadap keputusan Sumathy Subramaniam (supra) adalah salah arah kerana penghakiman dalam kes ini dengan jelas menetapkan pembayaran secara “bersesama dan berasingan” oleh Defendan-defendan. Dalam hal ini, Mahkamah merujuk kepada kes Sri Bukit Tunku Sdn Bhd v Ariffin Ab Hamid & Ors [2021] MLJU 1395; [2021] 1 LNS 1144; [2021] MLRHU 1038 di mana Mahkamah memutuskan bahawa:- “[13] It is trite law that a perfected judgment which has been sealed cannot be set aside except by a fresh action (See: Badiaddin bin Mohd Mahidin & Anor v. Arab Malaysian Finance Bhd [1998] 2 CLJ 75; [1998] 1 MLJ 393; Adam Primus Varghese bin Abdullah v. Wee Loke Choon & Ors and another appeal [2019] 2 CLJ 190; [2019] 3 MLJ 402 Rohaya bt Ali Haidar v. AmBank (M) Bhd (previously known as 'MBf Finance Bhd') [2016] 4 CLJ 563; [2016] 2 MLJ 819).” S/N Xx1cJUfYKkKhnzVyH/JQcA **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 20. Dalam apa jua keadaan, Mahkamah dapati prinsip dalam kes Sumathy Subramaniam (supra) telah dikaji semula dan diterbalikkan dalam kes Mahkamah Persekutuan Lembaga Kumpulan Wang Simpanan Pekerja v Edwin Cassian Nagappan [2021] 5 MLJ 253; [2021] 7 CLJ 823; [2021] 5 MLRA 178; [2021] 6 AMR 429. Perkara ini ada dirumuskan dalam kes Re Mohd Saiful Azuar Md Isa; Ex P Bank Kerjasama Rakyat Malaysia Bhd [2021] 12 MLJ 474; [2021] 8 CLJ 785; [2021] MLRHU 895; [2021] AMEJ 1029 seperti berikut:- “Postscript [75] I had settled the grounds of this judgment on 14 July 2021 in preparation for the delivery of my decision on 16 July 2021. However, before releasing the grounds of this judgment, it came to my attention that the Federal Court had delivered its grounds of decision on 19 July 2021 in Lembaga Kumpulan Wang Simpanan Pekerja v.Edwin Cassian Nagappan [2021] 7 CLJ 823 wherein the Federal Court overturned the decision of the Court of Appeal in Edwin Cassian (supra), overruled the Court of Appeal decision in Sumathy (supra) and approved the reasoning which led to the conclusion of the Court of Appeal in Kejuruteraan Bintai Kindenko (supra) that a judgment entered for payment of a sum of money against several judgment debtors imposed upon each of them, a joint and several liability to honour the entire judgment debt, and not merely an equal portion of it, unless otherwise stated…” 21. Memandangkan keputusan Mahkamah Persekutuan tersebut mengikat kesemua Mahkamah bawahan, Mahkamah merujuk kepada prinsip- prinsip yang diputuskan dalam kes tersebut seperti berikut:- “The Position In Malaysia [24] In this jurisdiction in any event, the common law is inapplicable, as we are governed by the Contracts Act 1950. Section 44 of the Contracts Act 1950 (Act 136) ("the Contracts Act") is the relevant provision relating to joint liability… [26] In summary therefore, unless a contrary intention is expressed in the contract, all joint contracts effectively impose a full liability for the debt on each of the promisors, by virtue of s. 43 of the Indian Contract Act, 1872: S/N Xx1cJUfYKkKhnzVyH/JQcA **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 see Pollock & Mulla: Indian Contract and Specific Relief Acts - vol. 1, 13th edn., (India: LexisNexis, 2009), at p. 1043-1044. Thus, where the debts are jointly incurred, each promisee is liable for the whole amount: see Dhanki Mahajan v. Rana Chandubha Vakhatsing AIR 1969 SC 69. [27] Accordingly, so long as a judgment debt remains unrealised, the judgment creditor is entitled to proceed against one or any number of judgment debtors to secure the performance of an obligation in its entirety… [39] In our considered opinion, the courts below erred in law in invoking the presumption that joint liability means liability for only half the debt and not the full amount. As mentioned earlier, joint and several liability gives rise to one joint obligation and to as many several obligations as there are joint and several promises. The promisee, ie, the Board, is therefore entitled to proceed against one promisor, or the other, or both, in order to procure full performance as is evident from s. 44 of the EPF Act.” 21. Secara spesifik, Mahkamah Persekutuan juga memutuskan bahawa ketiadaan perkataan “joint and several” dalam penghakiman tidak menghalang Pemiutang Penghakiman dari menuntut keseluruhan penghakiman dari setiap Defendan. Mahkamah Persekutuan memutuskan bahawa:- “[40] Furthermore, there is a notable absence of terms creating "joint" liability in the judgment itself. Even if such a term had been inserted that would not entitle the courts to conclude that liability is somehow halved between the two obligors or promisors. Given the prevailing interpretation of s. 44 of the EPF Act, merely inserting the word "jointly" in the consent judgment would not suffice to halve liability as there must be express words to that effect to state that the liability of the joint promisors is to be borne in equal proportions. Moreover, such halved liability should take root from the original promise whereby the liability of a promisor for a debt owed to a creditor is expressly stated to be only half of the debt. If we are to accept the premise that "joint and several liability" cannot be read into the judgment due to an absence of such words, it similarly follows that a silent judgment cannot automatically be inferred to impose "joint" liability where there is no such mention. This is especially so when the liability that arises is explicitly stipulated by statute. In the circumstances, liability under the consent judgment must necessarily be both joint and several in light of our discussion above.” S/N Xx1cJUfYKkKhnzVyH/JQcA **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 22. Mahkamah merujuk kepada hujahan tambahan JD bahawa prinsip kes Mahkamah Persekutuan tersebut tidak mengikat Mahkamah ini kerana kes ini tidak melibatkan tafsiran peruntukan Akta Kumpulan Wang Simpanan Pekerja 1991, sebagaimana dalam kes Mahkamah Persekutuan tersebut. Mahkamah berpendapat, walaupun petikan di atas merujuk kepada seksyen 44 Akta KWSP, namun prinsip tersebut tidak hanya terhad kepada kes-kes KWSP semata-mata tetapi juga kepada kesemua kes lain secara am. Perkara ini ada diputuskan dalam kes Per: Chan Wai Fong v Ex-Parte: Everest Web Sdn Bhd [2022] MLJU 1253; [2022] 1 LNS 1277; [2022] AMEJ 0733 di mana Mahkamah memutuskan bahawa:- “[6] Thus, based on the above Federal Court decision, it is clear that the said decision was not limited to the Employees Provident Fund Act 1991 only but that the liability of the JD herein is joint and several and as the said Judgment has not been satisfied, the JD continues to remain in law jointly and severally liable for the same under section 44 of the Contracts Act 1950.” 23. Malah, perkara ini juga kelihatan jelas apabila Mahkamah Persekutuan mengendors prinsip-prinsip kes Kejuruteraan Bintai Kindenko Sdn Bhd v Fong Soon Leong [2021] 2 MLJ 234; [2021] 5 CLJ 1; [2021] 3 MLRA 594; [2021] 2 AMR 676 seperti berikut:- “…The Court of Appeal, speaking through Justice Darryl Goon Siew Chye, in a meticulous and comprehensive judgment examining a long line of cases, concluded that it differed in reasoning with Sumathy. However, the Court of Appeal was constrained to dismiss the appeal as it regarded itself bound by the decision in Sumathy based on the rule of stare decisis as enunciated in Young v. Bristol Aeroplane Co Ltd [1944] KB 718. We would, with respect concur with the reasoning in Kejuruteraan Bintai Kindenko Sdn Bhd v. Fong Soon Leong [2021] 5 CLJ 1; [2021] 2 MLJ 234.” S/N Xx1cJUfYKkKhnzVyH/JQcA **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 24. Dalam kes Kejuruteraan Bintai (supra), Mahkamah Rayuan memutuskan bahawa:- “[49] Where an order is made or judgment recovered against two or more parties for payment of a sum of money, without more, it simply means that all the judgment debtors and each of them is liable for the amount adjudged to be due. There is no need to read into such a judgment or order the idea of joint and several liability because in the manner of its pronouncement that is already its effect, unless stated otherwise. In this, we agree with the observation of Lee Swee Seng JC in Lim Koon Chow v. AmBank (M) Bhd at para. [109] of His Lordship's judgment, referred to above. [50] Indeed, what should also not be done is to read into and to qualify such a judgment as only creating a "joint liability" for the sum adjudged or ordered, with the additional consequence that each defendant is only liable for an equal portion of the judgment debt. [51] If a borrower of a fixed sum of money is adjudged liable to repay that sum, he remains liable for that sum. It cannot be that if there exists a guarantor found to be jointly liable, the principal debtor's debt and liability therefore becomes half the amount if judgment is entered against both the principal debtor and his guarantor. Without having to be expressed, the liability of the principal for the whole amount borrowed remains. The guarantor's liability is also necessarily for the same amount guaranteed. They are both thus jointly liable for the same amount adjudged or ordered. They are also each individually liable for that amount. They are both jointly and severally liable… [56] Upon the authorities discussed and the consistency of judicial views expressed, we are inclined to conclude that a judgment entered for payment of a sum of money against several judgment debtors imposes upon them and each of them, a joint and several liability to honour the entire judgment debt, and not merely an equal portion of it, unless otherwise stated. It is unfortunate that the conclusion that has been arrived at in this case is at variance with the decision in Sumathy.” 25. Berdasarkan nas-nas di atas, Mahkamah berpendapat bahawa hujahan JD bahawa JD hanya bertanggungan secara sama rata terhadap keseluruhan hutang tertunggak adalah tidak bermerit. S/N Xx1cJUfYKkKhnzVyH/JQcA **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 26. Mahkamah juga dapati JD mendakwa bahawa JC berniat jahat apabila hanya membawa tindakan kebankrapan terhadap JD di sini dan bukan terhadap Syarikat Bonanza. Mahkamah dapati aduan JD tersebut tidak berasas kerana syarikat Bonanza telah digulungkan pada 25.5.2022 dan JC telah memfailkan borang bukti hutang terhadap syarikat Bonanza melalui surat peguam JC kepada Jabatan Insolvensi bertarikh 28.12.2022 (Eksibit A3 Lampiran 15). Undang- undang adalah mantap bahawa setelah sesuatu syarikat digulungkan dan bukti hutang telah difailkan, tiada lagi tindakan pelaksanaan lain yang dapat diambil terhadap syarikat tersebut. Dalam hal ini, Mahkamah merujuk kepada kes Gan Khian Pin v Malayan Banking Berhad [2021] MLJU 3039; [2021] 1 LNS 2433; [2021] AMEJ 2100 di mana Mahkamah memutuskan bahawa:- “The principal debtor has been wound-up on 13.5.2020 and Proof of Debt has been filed by the JC against the principal debtor. There is no confirmation by the Liquidator that the assets or property of the principal debtor company, if any, is sufficient to satisfy all the claims lodged by its creditors. The effect of a winding up order was to deprive the company of the beneficial ownership of all its property. See Yamamori (Hong Kong) Ltd v. Borneo Hotel Sdn Bhd & Anor [1991] 4 CLJ Rep 235. Hence, there is no avenue left for the JC to recover the debt from the principal borrower by using other modes of execution and enforcement within the meaning of s. 5(4) & (6) of the IA 1967. From the Affidavit evidence, this Court is satisfied that the JC has exhausted all modes of execution and enforcement to recover the debt owed to them by the JD. See KKRMC Trading Sdn Bhd v. Tan Tiang Lai [2020] 1 LNS 852 (HC).” 27. Maka, atas alasan-alasan yang dinyatakan di atas, Mahkamah menolak hujahan JD atas isu pertama yang ditimbulkan. S/N Xx1cJUfYKkKhnzVyH/JQcA **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 Isu Kedua: Sama ada terdapat “set-off” terhadap Pemiutang Penghakiman 28. JD mendakwa bahawa JD mempunyai tuntutan set-off terhadap JC dalam guaman sivil yang mana penghakiman bertarikh 18.10.2022 dimasukkan. JD mendakwa bahawa semasa JD berjumpa dengan peguam yang mewakili JD pada ketika itu, JD dimaklumkan bahawa tuntutan tersebut tidak melibatkan JD dan hanya syarikat Bonanza (Defendan Kedua) yang terlibat. JD mendakwa bahawa JD tidak mempunyai pengetahuan mengenai kes tersebut sehingga mendapat sesalinan penghakiman daripada peguam tersebut. 29. JD mendakwa bahawa dokumen-dokumen yang difailkan dalam guaman tersebut oleh peguam tersebut dibuat tanpa pengetahuan atau kelulusan oleh JD. JD mendakwa bahawa walaupun nama JD diletakkan dalam senarai saksi Defendan-defendan, JD langsung tidak dipanggil memberi keterangan dalam perbicaraan tersebut. 30. Dalam hal ini, Mahkamah dapati JD tidak pernah mengambil sebarang langkah untuk mengetepikan penghakiman yang dimasukkan terhadap JD selepas perbicaraan penuh walaupun JD mendeposkan isu-isu yang dinyatakan di atas. Undang-undang adalah mantap bahawa sesuatu penghakiman yang tidak diketepikan adalah penghakiman yang sah dan perlu dihormati oleh kesemua pihak. Undang-undang juga adalah jelas bahawa Mahkamah Kebankrapan tidak boleh mengkaji merit penghakiman tersebut melainkan terdapat isu fraud atau perlanggaran kaedah keadilan dalam memperolehi penghakiman tersebut. Dalam hal ini, Mahkamah merujuk kepada kes Chan Wai Fong (supra) di mana Mahkamah memutuskan bahawa :- S/N Xx1cJUfYKkKhnzVyH/JQcA **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 “[7] As the said Judgment has not been stayed or overturned, the Judgment remains valid and binding and the JD must obey the said Judgment. I refer to Re Tioh Ngee Heng [2000] 1 LNS 197 where Steve Shim J (as His Lordship then was) held: "It is trite law that an order, even if irregular, is valid and enforceable until set aside. This principle is particularly relevant in bankruptcy proceedings where the court generally will not look behind the judgments or order save in very limited circumstances of fraud or illegality, etc. In Isaacs v. Robertson [1985] AC 97, Lord Diplock speaking for the Privy Council approved the proposition advanced by Romer LJ in Hadkinson v. Hadkinson [1952] 2 All ER 567 who said at p. 569:- It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. Lord Cottenham, LC, said in Chuck v. Cremer [1846] 1 Coop temp Cott 338 at p 342, 47 ER 884 at p. 885): 'A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it. It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid-whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.' Such being the nature of this obligation, two consequences will, in general, follow from its breach. The first is that anyone who disobeys an order of the court is in contempt and may be punished by committal or attachment or otherwise. This principle has been followed by our Supreme Court in Sovereign General Insurance Sdn Bhd v. Koh Tian Bee [1988] 1 CLJ 277 (Rep); [1988] 1 CLJ 155; [1988] 1 MLJ 304." [8] Following from the above, this Court cannot go behind the Judgment as stated by the Supreme Court in Sovereign General Insurance Sdn Bhd v. Koh Tian Bee [1988] 1 CLJ Rep 277; [1988] 1 MLJ 304 where it was held that "In the exercise of his jurisdiction in bankruptcy proceedings, the learned judge cannot go behind the judgment.” S/N Xx1cJUfYKkKhnzVyH/JQcA **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 31. Lebih-lebih lagi, keperluan JD untuk memohon mengetepikan penghakiman yang dimasukkan menjadi lebih mustahak memandangkan penghakiman tersebut adalah dimasukkan setelah perbicaraan penuh. Dalam hal ini, Mahkamah merujuk kepada kes Jacob Rabindranath M Krishnan v GP Autobat Sdn Bhd [2009] MLJU 106; [2009] 5 CLJ 104; [2009] 2 MLRA 49 di mana Mahkamah Rayuan memutuskan bahawa;- “[5] The leading case on the jurisdiction of a bankruptcy court to go behind a judgment and inquire into the validity of the debt is of course Re Flatau; Ex Parte Scotch Whisky Distillers Ltd [1888] 22 QBD 83 where Lord Esher MR also said this at p. 85: It is not necessary now to repeat that, when an issue has been determined in any other Court, if evidence is brought before the Court of Bankruptcy of circumstances tending to show that there has been fraud, or collusion, or miscarriage of justice, the Court of Bankruptcy has power to go behind the judgment and to inquire into the validity of the debt. But that the Court of Bankruptcy is bound in every case as a matter of course to go behind a judgment is a preposterous proposition. There is no statute which imposes any such obligation on the Court of Bankruptcy; s. 7 does no more than give a judicial discretion. [6] In Re Tunku Mariam bt Tuanku Zainal Abidin Ex Parte Arab Malaysian Finance [2007] 8 CLJ 626; [2007] 8 MLJ 714, Vincent Ng Kim Khoay J (now JCA) had occasion to consider what Lord Esher meant by the expression "miscarriage of justice". Our learned brother referred in his judgment to Re Howell [1915] 84 LJKB 1399 where the court held as follows: I have only been troubled in this case to what is the meaning of the words 'miscarriage of justice' in Flatau, In Re (22 QBD 83). I think that the working rule is that the Registrar can go behind the judgment where it is a judgment by default or compromise. He ought not to go behind it, when the judgment has been given in open Court against a person who is represented. [7] In our judgment the foregoing passage really concludes the point against the appellant. Since this was the case in which parties were represented and there was a full trial, the exception provided for in Re Flatau has no application. To reiterate, there was here no miscarriage of justice within the meaning of that expression as employed by a court of bankruptcy.” S/N Xx1cJUfYKkKhnzVyH/JQcA **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 32. Dalam kes ini, JD tidak mendeposkan sebarang fakta yang menunjukkan penghakiman tersebut diperolehi secara frod. Hujahan JD adalah JD mempunyai set-off yang sah dan memandangkan JD tidak dipanggil memberi keterangan di Mahkamah bicara, JD tidak dapat mengetengahkan pembelaan ini. Dalam hal ini, setelah meneliti kertas-kertas kausa yang difailkan JD dalam kes ini, Mahkamah bersetuju dengan hujahan JC bahawa JD tidak pernah menghuraikan apakah tuntutan balas atau set off yang bersamaan atau melebihi jumlah penghakiman yang diperolehi JC. Faktor ini bertindak fatal kepada JD sebagaimana dihujahkan JC dengan merujuk kes Datuk Lim Kheng Kim v Malayan Banking Bhd [1993] 2 MLJ 298; [1993] 3 CLJ 324; [1993] 1 MLRA 288; [1993] 2 AMR 1285 di mana Mahkamah Agung memutuskan bahawa:- “It is, therefore, necessary that the affidavit in question should, on the face of it, show a counterclaim, set-off, or cross demand which equals or exceeds the amount of the Judgment debt, and which the debtor could not have set up in the action in which the judgment or order was obtained. We are concerned here with the content of the said affidavit. It merely denies and disputes that the appellant was indebted to the respondent in the sum of RM2,603,913.28, but fails to disclose that he has a counterclaim, set-off or cross demand etc. against the respondent, which he is required to depose under s. 3(1)(i) of the Act and provided for in Form 7.” S/N Xx1cJUfYKkKhnzVyH/JQcA **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 33. Dalam hal ini, JD tidak seharusnya sekadar hanya membuat dakwaan bahawa tindakan atau peninggalan peguam JD yang menyebabkan JD tidak dapat menimbulkan pembelaan set-off dalam tindakan asal. JD seharusnya mengambil langkah lanjut untuk mengidentifikasi apakah pembelaan set-off yang tidak mungkin dibawa semasa tindakan asal tersebut masih berterusan. Kegagalan berbuat demikian akan bertindak fatal kepada JD sebagaimana diputuskan dalam kes Tan Suan Kin v Evelyn June Charlie [2015] MLJU 705; [2015] 1 LNS 898; [2015] MLRHU 251; [2015] AMEJ 1537 di mana Mahkamah memutuskan bahawa:- “The JD has not explained why she could not have set up the counterclaim, if any, in the action in which the judgment was obtained. She merely blamed her former solicitor. It is obvious that any potential counterclaim of the JD is directly related to the agreement that she signed with JC and therefore it should have been set up in the earlier action. Therefore, she ought to satisfy the court why it "could not have been set up" in the earlier action. In my opinion, the words "could not have been set up" refer to some legal impediment that had prevented the counter claim from being filed. However, the JD has only implied that her former solicitor did not do his job. Therefore, she has only explained why the counterclaim was not filed and not why it "could not have been set up". On this ground as well, the learned Deputy Registrar ought to have dismissed the application of the JD.” 34. Maka, berdasarkan alasan-alasan ini, Mahkamah berpendapat bahawa isu kedua yang ditimbulkan JD bahawa JD mempunyai set- off terhadap tuntutan JC juga turut tidak bermerit. S/N Xx1cJUfYKkKhnzVyH/JQcA **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 Kesimpulan: 35. Berdasarkan alasan-alasan yang dinyatakan di atas, Mahkamah menolak lampiran 11 dan setelah mendengar hujahan berkenaan kos, JD diperintahkan untuk membayar JC kos RM1,000.00 tertakluk kepada fi alokatur. Bertarikh: 25 September 2023 Disediakan oleh, …………………………………. ARUN A/L NOVAL DASS Timbalan Pendaftar Mahkamah Tinggi Malaya Johor Bahru S/N Xx1cJUfYKkKhnzVyH/JQcA **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 Pihak-pihak: 1. Tetuan C.S.Tan Seah & Partners Peguambela & Peguamcara Peguam Pemiutang Penghakiman Unit 312, (Lobby 6), 3rd Floor, Block C, Damansara Intan, No.1, Jalan SS 20/27, 47400 Petaling Jaya, Selangor (Ruj: SS/CSL/12223.20) … Encik Tan Chi Sian/ Puan Rosamirah Insyirah Binti Zamri 2. Tetuan M Manoharan & Co Peguambela & Peguamcara Peguam Penghutang Penghakiman Suite C5-5, 5th Floor, Tower C, Wisma Goshen, Plaza Pantai, Off Jalan Pantai Baru 59200 Kuala Lumpur (Ruj: MM/CV3169/BB) … Puan Seetahpriya Sivanathan S/N Xx1cJUfYKkKhnzVyH/JQcA **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 Kes-kes yang dirujuk: 1. Sumathy a/p Subramaniam v Subramaniam a/l Gunasegaran and another appeal [2017] 6 MLJ 753; [2018] 2 CLJ 305; [2017] MLRAU 280; [2017] 5 AMR 346 2. Kuala Excel Sdn Bhd v Chua Liang Hong [2022] MLJU 1350; [2022] 1 LNS 1336; [2022] MLRHU 1179; [2022] AMEJ 0802 3. Goh Kein Hooi v OCBC Bank (Malaysia) Berhad & Another Appeal [2014] 1 MLJ 516; [2014] 4 CLJ 274; [2014] 1 MLRA 287; [2013] 5 AMR 635 4. Re Liew Choo; Ex P Chuah Teng Heng [2016] MLJU 1836; [2016] 9 CLJ 598; [2016] MLRHU 763; [2016] AMEJ 1611 5. Sri Bukit Tunku Sdn Bhd v Ariffin Ab Hamid & Ors [2021] MLJU 1395; [2021] 1 LNS 1144; [2021] MLRHU 1038 6. Lembaga Kumpulan Wang Simpanan Pekerja v Edwin Cassian Nagappan [2021] 5 MLJ 253; [2021] 7 CLJ 823; [2021] 5 MLRA 178; [2021] 6 AMR 429 7. Re Mohd Saiful Azuar Md Isa; Ex P Bank Kerjasama Rakyat Malaysia Bhd [2021] 12 MLJ 474; [2021] 8 CLJ 785; [2021] MLRHU 895; [2021] AMEJ 1029 8. Per: Chan Wai Fong v Ex-Parte: Everest Web Sdn Bhd [2022] MLJU 1253; [2022] 1 LNS 1277; [2022] AMEJ 0733 9. Kejuruteraan Bintai Kindenko Sdn Bhd v Fong Soon Leong [2021] 2 MLJ 234; [2021] 5 CLJ 1; [2021] 3 MLRA 594; [2021] 2 AMR 676 10. Gan Khian Pin v Malayan Banking Berhad [2021] MLJU 3039; [2021] 1 LNS 2433; [2021] AMEJ 2100 11. Jacob Rabindranath M Krishnan v GP Autobat Sdn Bhd [2009] MLJU 106; [2009] 5 CLJ 104; [2009] 2 MLRA 49 12. Datuk Lim Kheng Kim v Malayan Banking Bhd [1993] 2 MLJ 298; [1993] 3 CLJ 324; [1993] 1 MLRA 288; [1993] 2 AMR 1285 13. Tan Suan Kin v Evelyn June Charlie [2015] MLJU 705; [2015] 1 LNS 898; [2015] MLRHU 251; [2015] AMEJ 1537 S/N Xx1cJUfYKkKhnzVyH/JQcA **Note : Serial number will be used to verify the originality of this document via eFILING portal DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DALAM PERKARA KEBANKRAPAN NO.JA-29NCC-745-12/2022 ---------------------------------------------------------------------------------------------------- ALASAN PENGHAKIMAN Pengenalan Analisis dan keputusan Mahkamah Kesimpulan: Bertarikh: 25 September 2023

Tika 2.6.0

PA-24NCvC-1062-11/2022

PEMOHON 1. ) NG TEE SO 2. ) SEOW BOON KOK 3. ) SAW CHANG HENG 4. ) LEE JOO PING PENCELAH LIM BOON LIN

- This Court had granted an Order ex-parte previously on 5th December 2022 declaring the four Applicants as trustees of seven properties of a Han Chiang High School Scholarship Fund pursuant to the Declaration of Trust dated 25th November 1993 as well as a Deed of Appointment of new trustees dated 26th January 2022 and that the trust properties be vested in the name of the Applicants in accordance with the Deed of Appointment of new trustees dated 26th January 2022.- Enclosure 6 - Notice of Application by the proposed intervener to intervene and to set aside the said ex-parte Order.- Issues:• Whether the Court is functus officio once it granted the ex-parte Court Order on 5th December 2022 and whether the proposed intervener has the locus standi; • Even if the proposed intervener has locus standi and the Court not functus officio, whether the ex-parte Court Order obtained on 5th December 2022 ought to be set aside in these proceedings.- The Court finds that it is not necessarily functus officio and may still proceed to consider whether there are merits to set aside the said Court Order if warranted. - The Court also finds that the proposed intervener has the necessary locus standi to intervene in this case as the net effect of the ex-parte Order was to effectively displace the proposed intervener as a trustee in the said trust lands.- However, the Court is not prepared/unable to set aside the said ex-parte Order on the basis of the affidavit evidence/materials placed before the Court and without the previous trustees being parties (as they were the ones who had appointed the Applicants as trustees vide Deed of Appointment of new trustees which was the basis of the Court making the ex-parte Order). - The proposed intervener may however commence fresh proceedings against the previous trustees and the Applicants who signed the Deed of Appointment of new trustees (or anyone else he deems necessary) to seek a declaration on the invalidity of the same and to consequentially seek an order to set aside the ex-parte Order dated 5th December 2022 in those proceedings.- Enclosure 6 is thus dismissed with costs.

21/11/2023

YA Dato' Anand Ponnudurai

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=2c86e603-1f22-4c05-87e8-1c46119375fd&Inline=true

21/11/2023 20:22:43 PA-24NCvC-1062-11/2022 Kand. 30 S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal pA—2mcvc—1ns2—11/2022 Kand. 30 21/mzmz - DALAM MAHKAMAH TINGGI IMLAVA DI Puuu PINANG SAMAN FEMIJLA No. PA-zmcvc-1on2-11/2022 Dalam perkara mengenaw sualu Deklarasr Nnanah benankh 25-11-1993 Dan Da\am perkaru mangenai sualu Deed nl Appoinlmern av New Trustees banankh 25014022 Dan Dalam perkata mengenal salu Amanah yang auxenan sebagau HAN CHIANG HIGH SCHOOL SCHOLARSHIP FUND dan Hananah-Hananah dalam Jadua\ Tanah yang dulamplrkan Dan Dalam parkara mengenai Seksyen 4o.45.«7 dsn 45 Am Famogzng Amanah 1949 (Anna may Dan Dalam perkara mengenai Seksyen 41,41 dan 53 Akin spesmx Rem1s5c(ma137) Dan Da\am parkara mengenal Seksyen M7, 420 Kanun Tanah Negara 1965 (Akla 325) Dan Dalam perksra mengenai Aluran 7, 15, 25 dan 92 Kaadah I3, Kaedah-Kzedah Mahkamah 2012 sw Aamcwauynaaxszzmrn me 1 Mn um smm ...m.mm be used m mm .. mmuny mm: dun-mm VI] muNG pm Dan 1 NG TEE soo mo. K/P 430905015443) 2 ssow soon KOK (NO. KIP: same-on 5755) :4. SAW CHANG HENG (NO KIF. 561023-fl& 5597) A. LEE J00 PING (NO K/P’ 550827-07-5665) PEMOHON-PEMOHON DAN UM BOON LIN (N0. K/P'54082H)9—5D17| (sebagai Pengerusi Jawavankuasa bagw ‘HAN CHIANG HIGH SCHOOL SCHOLARSHIP FUND‘ din/alau pemegang amanah yang dilanlik sqak 29.124993 bag! ‘HAN CHJANG HIGH SCHOOL SCHOLARSHIP FUND‘) BAKAL PENCELAH GROUNDS or JUDGMENT mroaucuon [1] The com had granted an appnum by the Apphcams harm on an awaits bass and had made cenaln Orders and asclananans on sw Aamcwauynaaxszzmrn u... 2 AI in mm smm ...m.mm be used m van; .. mmmy mm: dun-mm VIZ mum puns! .1. The pmposod Inlervensv failed. remea and neglecled In nerne Dr challenge lhe very sumed lmnslsrurs/previously revislenid land rrusvees (Dale Oo Jam Tea and Dale veon man one) aesprre wing in Ims apphcalmn as set aside the transferlcoun Order dated 5“ December 2022‘ manner was Endosure 5 even served on DaloOo.loo< Tee and Date Yeah Muh cnav. The fiilule to name or serve en me Iransfemvs causes Enclosure s to be a nullity even « rne proposed intewener Is allmrrsd In Intervene, e. The can Order was ragulany manned and more Is no allegallon afl fraud or ruegamy mused by the proposed vnlarvener nor any rssue ov wank nnunsdicnon [24] Having me benefited reearng are aflidavns and submissions of mm Dames, me two main grounds wmch reqmre ruarcvan delermmalrun are as tame: a. wnemer me Court Vs Iunclus more onte vl granled me ax-pans Court Order on 5' Dseember 2n22 and whelhu the proposed mcervener has me too»: Mandi oi Ihe proposed rncarvaner, and 1:. Even r! the pmpused inlervenev has /nous sIam11 and me Conn not Iwrcme omclo, whmhar Due wpene Cnurl Order obumeu an 5' Deoemzrer 2022 augm Ia be so! aside we Endnsum 6. W Aamcwauyfiaaxszzmln Page :1 er 1: ‘Nate s.n.r n-nhnrwm r. used m van; me nrimnnuly enn. dun-mm VIZ mum rm AnIluiIIDocising Flu; Iuu wn-mar Ihu cum I: Iuncm omcio one. It gr--I-d lhn Ix-gum coug am: an s"- Dun:-mblr nu ma wvmn-r gm grogona Inhrvouuv nu ma locus gflrldluflhn grogoud Iggmnnr Fun u [25] Yhe Apphrzanls in opposing ems appllcallon unaei Oldnr 15 ml: s ohho Ruln ofCaun 2n12 wnland max me com is Iunclus onicio once i| gr'arI|ed me ax-puns com onsei on 5' Deoembar 2022‘ To Inns and, me Appiicnnzs rely on the locus ciassicus case oi Hung Loom: Bank sna (lormorly known u Hung Loony Flruncu Bhd) v Stanhorn Sdn EM and tumor nppuin [2005] 2 ram 52: where Ihe Feaeiai coun new as loIIamvs' "[53] wnaveonclusians can be drawn horn ms pmwsians MO 15 i 6 oi the RHC and me cases discussed above? I inink, my sis as Ioiiows: [541 i=im, an nppwesiion 10 set aside an own for 30/9 by an sxisling puny la the pmcesding may [as made below the final oidei is pufeclsd, alherwiss (Ive judge is nincius ofllcio [55] secandiy, an applicaborl for /savs Io intervene in arde: to sei aside an orde: fa sale by a pan, no! a/ready a penny to the proceedings mus! be made Linda! 0 15 r 5 0/ me RHC. The appiieanon may be made at any stage of me plocsadmgs meaning asraie iuagineni, omsiwise me proceedings have in A:GLcwaLiymxaxsEzmin me 11 av u we Sum! n-nhnrwm be used m van; .. mn.u.y MIME mmn wa mum puns! concluded and them 1: no buyer a prveeedmg In exmance my me party to /Ivle/vane m The judgs has also became lunclus ammo Even men, the app/icatran must be made pvompfly Dniar 15 n a of my RHC appoes In all civil pmcsedmgs whether commenced by a writ motion or summons etc [551 Tlvrdly, an appocmn for )9-ave ta Intervene Is supported by an afidawt In other wolds. /I! won an appllculmn, the mags merely dacrdas on slfidswt swdsncs, wneznar or not leave should be granled Ag mg; gun; Q1 iuggl should not mlki -I ddflnltt flndlgg gt flgfi wjigh l§ urlvislgod by 015 I 6 ol tho RNC I/lll Ind cln Dill! bl Inldfl lllor Ill ovldonco has bun gggucid In [ill will whleh wlll Iollow tllbtcgllflnl [. [51] Fomwy, anyparty, wnezner a pany in the angmal pmcaedmg oi nol, who wants to cha//enye we order for sale, or lnr that matter, any/udgmenl, omel man a ueraumuugmenz or whats 1: 5 specifics//y pmvrded for rn the ru/es, may any do so by filly a {rush sale 1531 Fillh/y, wl-me ms principles lard dawn in Fogsng Mmmg as to exsmse ofdrscrelron are appncabls, all the mquimmants of o 15. E(2)mus1 be smrsfiad " [23] It IS me Appncanxs‘ lunher oonlermon Ihal bearing m mmd me substance cl me aHegaImns rawsed by the proposed vnrewenu IN Aamcwauyfiaaxszzmln rue u at u -m smm n-nhnrwm be used m yam .. nrimruflly mm: dun-mm VIZ mum puns! nerern, mere snouio be a lresrr sciiun cnmmenoed to sei aside me sai exparie Omar. [271 Hvwsver, iearned copneei forms pmposed inlervenev nae roireo an savaml cases which appear to have diluted somewhat the above sieprrorn principle on mnenrs omcro ano rroio inai me sarne does not apply and that «no Conn rerains an inherent jurisdiction to se| aside any ex—pane oroer wnron Is a nulhw by reason oi a breach of naiurai iuslice. [see me cases oi Loo Clui song v Magnum Cornoution consoniunr Sdn Bhd (20151 1 LNS 24:; In ne: uerorrry securixies Sun and arm Anor[2l219] 1 LNS1045, and Dlxon Khoo soon no. v Koh Jiair Chlw [ma] MLJU 14411. [231 Having read me above case: med by iearned couneei ior ine pmpcssd inrervener, peennp in mind man we proposed Inlervener was nor sawed wiin me onginenng summons arm nor given me oppormnriy In no nesro In me said ongrnaung Summons, it is arguapie (ha| ino Courl is non neoeseaniy funclus overs and may sim proooeo Io mnsidav wneiher mere are merits in set aside rne seio coon Ordev iiwarraniea. L n r [29] in Iuspaci of me propoeeo inrervenore ioeus sland Appircanir nonlarmon that me proped rnoervener acnnp alone. be n as me cnerrrnan onne um oornnnnoe or as me lvustea mine and Irusl lacks iocns slandi in repreeeniing me said (rust peoraiiywnen the posirion nnd views 0101! other lruslees were not disdosed nor made known In any evenr, Iha Applicanla also challenge Ihs IN Aamcwauyuaaxszzmln r... :4 will we s.n.r ...n.rvn re used m van; me nflginniily enn. dun-mm wa .nene wnxi posrtion atcnstrntan ofthe proposed intervenerwhtdtthe proposed trttervener contends that ne netd since 1997 wtncn the Apphcanls contend VS a dtrect cumravenltcn 01 Rule 5 M the Rates and Regulations dune HcHsst=wrnpn allwsa hmitedduraltan frtrvfftw at a Chatrman [an] In addttm KM Aupttcants stse eentend thatlhe proposed tntervener who ts neither the regtslered or beneficial miner L‘/f the trust pmperltes nor tne regtstered trustee of the sen: lrus| ptuuems does not have any InIyes1 nor rtghts in rem in the said lmsl PNDEHAGS to seek revocation or registralton in the names at me Apphcants as trustees. tt rs runner pointed out that attnpugn me pmpased rntervensratteges that he was appctmsd in 1993. he has not sought a declaration an the validtty oi ms spppirrtrnent and nettner has na been regrstared as s registered trustee. In any event, trus taaue at whether at not the proposed tnlewener vs a trustee appears to be a mrtlesled tact wtnen t esnnet deade tmvugh tne atndavie atone. [31] on true pontmry, the proposed tnrarvanarponremts that M has (ha mtcassaty locus stand; as not only has he been a trustee stnee tests. but trust ne nas been artectad by the ex-parts court order dated 5'" December 2022 [32] In my mnstdered vtew, havmg ponstdered the fact that the documents reveal that the proposed intervener was appointed as El new trustee vtda a Deed oi Appointment of new trustees dated 29“ December 1995, tt ts arguable mat rte has the neossary locus standi as the net eftect onhe sx«pans Order dated 5'" December 2022 ts to etvectivery dtsptaoetne proposed trttervener as a trustee. IN A:GLcwEuyHt!BxGEzNtID rage ts MM -use s.n.t n-rthnrwm re used m van; me nflgtrtnflly sums dun-rtnrrt n. .nuns Wm [33] Farmer, as gleaned Irdnr me afidavils and me ooniernporanepua documentary evidence before me, pursuant io ine establishment ai the HCHSSF, the working eornrninee was sat up to manage me same and me pmposed rniervener IS me pnseni Chaiiman at me said oprnmmaa. wmisi me Appiicanrs guesiidn nis current sianding as the Chairman of me said ponrmrnee, I am unable at this stage to asoerlairi me (me posmon merely on me strength oi anidavws. [34] As sucn, peiare I go any iunner, I win al this sage sraie that r am inclined rp allnrw the proposed rniervener Io intervene as prayed ipr WI prayer 1 oi Enclosure 6 Segglld Issue: Even filhe grogosed Inmrvonur hll locus sbndiand are ceug ngj nrrrgggs oficia whether rm nrflm courr Ordur eeraineg gn am ggmgg 21122 oghl to be an map via Enclosun § r351 Nprwnnsrandrng rrre lacl mat lhe proposed i Iervensr may have are rpcus srandr and are com nor necessarily Iuricfus p/acid as discussed arms, that is nor me and or me mllw. The Courl has In now consider whelher rrre ax—parla order grenred dated 5'" nadsrnpar 2022 is a NANNY as contended by me pmposrsd inlervenar. To recap‘ ine Applicants on me prner nand dpnrend that the said order has peen regrneriy obiained and cannor be sel aside and rnar in any avanr, rnis is nor me proper rprprn hm mar ina proposed intervener shouid earnrnande coliaieml proceedings or a fresh Sim IN Aamcivauytiaaxszzmin has 15 will -we semi nnvihnrwm re used M van; was nrigiruiily MIN: dun-vinrrl VIZ ariurm wnxi [36] In my view, me contention: oi the Appiicanrs are with merit in max me said ex-pane Order ought nai is be sei aside via Enclosure 5 based on the iniirming reasons: [37] misery, it is beyond pemdvenlure that me crux at me issue and/or wmplainl a1 me proposed imervenet is that Ihe Deed of Appointment or new lruslees dated 25*" January 2022 IS null and invalid In this regard, [[13 proposed inlervanersubmivs max D810 00 J00! Tee and Dam Yeah Moh Cllai had misrepresented when they aeciarea Ihal may were me any two surviving trustees ei me dale cube sen Deed cfAppoin|men| when in [am them were seven. The further Issues raised by we proposed inienienei in suppon :3! me contention that [he appomimeni M the Apphcanls ls invalid are as lalions: e. we ieeue oi me appclnlmenl 01 me Apphaanls as me ion: (4) new Iruslses being a nullity, invuia and irrngullr as me Appticanis are no: eenimmee member: oi me HCHSSF as required by me mes and Reguiamne enne HCHSSF dated 30" April 1993 men requires imeieee In be mmininee members: b, the inwnsislancies in the dues oi resignation by Dam on Joni Tee and Dam Yeah Mnh Chev ax lmslaes in the Deed af Appbinunem oi new irusieee «men 26'‘ January 2022 which IS inflamed in the police reporl dalsd12"JarIuary 2022 byTen Sri Dam sen Tm Kak Ping and the Deed ouppoinbneni af new Imsteas dated 26'” Jlnuary 2022: IN Aamcivauyfiasxszzwiln hue n cl u we s.n.i ...n.mm be used m van; ms mn.u.y MIN: dun-mm n. nFiuNG em a. me Durvonsd iener of resrgnrmerr or Ooi Tiang Krmn dated 25“ December 2021 as e irusiee rs irregularnr-efieciive as it was aedresaed in Mn trustees, Dalo Do Jooi Tee and Dale veoh Mnh Chai and not me corrimmee oi HCHSSF; a me regrslrahon of me rour new rrusrees In me documents of me was not oonciudsd by way 0! Form NA mu by virlue 01 this ax—pana Cmm Order dalad 5* December 2022 and merelore IITBQIAIEL e. we reirrrrrg irusiaee. one On Jan: Tee and Dam Vaoh Moh Chai were Iegalry incompereni |o annoml new irusieee and renire srmurraneousry. Aprxirrimern of «our new irueoees ougm to have been done flrst and not sirrruiianeousiy is was done In mrs use; and 7. me Applicants are I101 obtain me cunseru 01 me Niamey General baiore omaimrrg a couri order cormrming weir eppairmnerri as required by Suction s at me eevemmurc Procnodlngl Am us: as me scholarship runes are a public cnariiame Ims| {:3} ma Caurl was irrererare urged by me pmpoled rrriarvemr In view we need 01 Appointment 0! new lruslees dialed 26* January 2022 with suspicion arm in reieci are same. [391 From me above, ri can be surmised Ihal me crux at me prepasee iruerveners enmnlainl is me veireiry or vlhevwise 0! me Deed of Appenmreni or new trustees dated 26"‘ January 2022 and In «ms rw A:GLCWEUyH£BxGEzN1ID munmu -rue s.r.i Iuvihnrwm re used m mm ms nrwirraflly MIN: dun-mm VI] aFiuNG WM! regard, in my view, trie roles or «tie said two previous trustees, narnely new op Joel Tee and Dam veori Mon cnai are critical. Whilst the proposed inieryener nee taken iiinbrage over the lactttiat trie two were not Applicants as well, it is clenrto nie triat most oune issues raised rierein cannot be decided witrioiit hearing their side of «tie story to demie any o1 trie above issues andlor ine validity or olhelwlse the Deed cf Appeinnnenit ol new trustees dated 26"‘ January 2022 [An] In my VIEW, these issues raised new by ine proposed intenierrer oertainiy iannot be deemed merafy on atridavai evldenue and wittiotn me input of ttie said nato oo Jool Tea and Data veoti Mon cnei. l agree wmi learned Counsel lorthe Appllcanls that trie crisllenge on me app01n|men|ofIhe Applicants cannot be detennined uirougn an inienreniion application as in Enolosiire s. Tne ceiin is only able to set aside me said ex—parIs order dated 5“ laeeeintier 2022 if il can conclude based on me euidenoe oetore it triat tna said need of Appolntmenl 09 new trustees dated 26"’ January 2022 IS a nullity. wnri respeono learned counsel iorrrie proposed inteniener, witriom irie benefit of a tun Inal and/or wntioui nearing irie version lroin tne said Dan) oo Jool Tea and mild vedri Mon crioi. triis coiin is oenainty not prepared a| is slage to hold met me said need in Appointment 0! new Irusleu daled 25'" January 2022 Is a nuuity. [A1] I am 0! the turirier lirm view that the appropriate mode to challenge trie validity or tne Deed of Appotntrnent wf new Ilusleers dated 26“ January 2022 and by sxvlansian thereto, trie ex-pane Order dated 5' December 2022 on lhe eppoirnmerit 0‘ the Applicants is for vie proposed inurvener lo file a fresh suit against Ihe previous tnietees in A:GLCliEL1yH£BxGEzN1ID Fix! 1! M u ‘Nab! s.n.i n-vlhnrwlll be used M van; ii. nflglnnllly sun. dun-mm via aFluNG wml andlor Ihe Aeelicanls who executed lne need or Aopoininienl in new iruslees daled 26"‘ January 2022 (or anyone else he deems neoessary) lo seek ii declareiiori an |he invalidiry or me Deed oi Appdininienl di new lruslaes dated 26"’ January 2022 and if need be, e declarailan as |o wria lne lawful lnisiees are. In sueri a euil, lne proposed inlervener may also irien rely on Badladdlirs principles or any dlrier law to sei aside irie said ex»parIe coim order daled 5- Deeenileer 2322 [see me Federal couri case 01 Badiaddin ain Mohilrllmld Mlhidill Rosi in Mahklln ai Anor y. Arab Malays anee aerliad A Anor [1993] l MLRA183 al pp 184. 20 . 199311 ML] :93; [1993] zcu 15; (199511 AMR saw] Having reecrred Ihis oonolusronr I will nel rule on any of llie rrienis oi irie issues mised as iriey slioiild he venillaled iully in any suoli new suii riled [421 || ie also peninenl la noie inai in se lar as me proposed inlerveners applicaiion lo selaslde lrie expand order dialed 5' neeeriioarzozz rierein. ilie sariie ls noi balng eriallenged on grdunde oi lllegaliry, lraud. iii iiiai ine Court riad no lunsdiciidn lo graniine reliefs eeugril in irie originaiing surrinrene Tne only gieund pm form In eei eslde Ihe sarno in ielaisdn id irie vnhdrty of lrie Ippolrllmarll of me Appllclnu Vlfle lrie Deed olappdinirrieni elnew irueleee dalad 22- January 2:122. in my view. [he eore diepuie remains a challenge lo irieir Ippoinlmenl an 26"‘ January 2u22 and eanriol render irie said sxrplrle order made being one illegally ahlained or null and void‘ Any mnsidara|ion dime merit oflhs epeoiniinenland/orllie Vihdlly oi llie said Dead o1AppolnlmaM of new irueleee deied 26°‘ January 2u22 will have In be considered in a separale suil lo be filed IN A:GLCWELlyH£BxGEzNilD rage no out None s.n.i In-vlhnrwfll be used m van; me nflglrullly Mimi dun-mm Va nFluNG wml 5' December 2022 The pmpased lmarvener has lnrougn Enclosure 6 applied lo lnlervarls arm in he added as a panylolnese proceedings Dursuant 1:: Omar 15 ml! c of mo Rulu of calm 2012 and lor an order lnal me said ex-Pam: Cclurl orosr dated 5"- Decenioer 2022 be set aside. [21 Having heard leamsd counsels oral submissions wiln one and of lneir wrmen submissions‘ l dismissed Enclosure 6 mm wsls. I will new sex cul me background lacis. me panics’ respecnve oonlenllons/submissions and my reasons for having dismissed inc proposed lniarveners applrcalion ansr navrng anaryseo me evidence and the applicable law In relanon to me issues al hand. kgroulld FIDLI [3] The Nari c Iang High scnool in Jalan Lim Lean Teng‘ 11600 Perlang was esmlisneo WI 1952 on me land known as Lot 2755. Hakmlllk 5741, Secllorl 6 seorgecown. Nonn Eas1 Dlslriu. Penang (halelnsflar rsrenaa lo as me ‘sad trusl land‘). [A] The salo mist land was onglnally purcnassa by me pmposed lnlervenefs lava grandlamer, Llnl Lean Teng, a prnlanmmplsl III 1940 lnrougn ms proposed inlarveners uncle, me lals Lim Therlg Hln (“me Samar‘) [5] on ma da|a oi ouronuso at me said lnm lano. me senior nao uxeculad an lndalmlra (Trust Deed) dated 2w July 1945 whereby the senior conveyed the saw lrusl land to Plimsoll Ind 13 mllar trustees lo nolo an [rust (or me establishment oi a Chinese sonool IN Aamcllauymlaxszzulln ms 3 :11! None s.n.i n-vlhnrwlll be used M mm r.. nrwlrullly sun. dun-mm VI] .nunc ma [43] finally, llie proposed lrllawsner oonlends lliei lrie said expane oodri order daled 5!" December 2022 eiigrii lo be sel aside on ilie oasis lrial lliere was irialerial rloruiisclasure el lacls in that an application was made «or me replacenieriii or lines despiie ine Applicants’ solieilor being inlonned via lelier daied 14'" January 2022 try me proposed inleivenere solicitors 0131 me original lines were in their ws1ody. [441 in my VIEW‘ wriilsl iriere appears lp be such a leilar seni ie the Applicani: seliollors and whIISl mere was indeed a consequential order lor replaoeineni nf iiiles wnion was alldwed. me mix ol me applicaliori in Enddsure 1 was lor a deoiaralinn and remgniiion cl lrie appoinirneni oi ine Appllcarils iride me need oi Appoinirnenl of new inislees el 25' January 2022 and aimeequenlly lrie vesiing at irie Imsl properties onie iria Applicariia as me recognized new inialees lei irie said lrusi. [45] Having oansldeved Ihs (31:15 and clrcumslarreevs 07 the present caller I am more VIEW Ihal eased an ilie arridawi evidenoe befiure me I cannei eoriolude iiiai irie foul Appllraxnls nad knowledge dl Ihe ixeyioiie hislory oi irie said lrusi and scales el lmslees and iienoe nm he cmulderad guilty or any rneierial normlsciosura. in my view, all iriey did was move iriis couri on reliallue an die Deed of Aepoirilrneni M new iriisiees daied 2e'- January 2a22 by lire Iwo ieinairiing imsiaee naniely Data 00 Joel Tee and Data veon Men chai to seek lrie declaration sodgril [46] iii any eirani, qiiiia apan ireni ilie fact iriai siion order nas nei been eiileroad or exemled in inai me Appiioanis have no: opiained replaoemenit miss, I find mac RIB nan-disclosure 07 such lane! was in A:GLCWEUyHEBxGEzN1lD 91:: xi MIA Wain s.i.i In-vlhnrvilll be flied m van; me nflglrinllly eiiii. dun-vlnril via nFluNG wml not imponanl D7 mammal In the lorrrialien Mme Order I granted. [559 ine High own case oi Emporium Jay: (among) Sin and (In I q dafion) v. Emporium Jaya (Jnrantm) sun Bhd mini] 4 MLRH 517; [2002] I mu «:2; mm 3 cu In; [znon 4 AMR was]. Oonclul on [47] As such, based on aii matters. and upon a carelul and iumciuus consideration at me evidence oeiae me and me submission at teamed cuunsei, whilst ma court may no: he /unclux ammo and/or ins propusad iniawenei nae ine necessary locus slsndl In iniswene, hearing "I mind inai me pmposeu iniervener in essenoe anuiur In simsianae seeks In cnaiienge lha apgoinlmsfll of Appiiaans via me Does! oi Appcxnimeni ai new Iruslees dated 25- January 2022 which they uaniend in invaiia, I Im unable to sei asida me said ax-pane Older dalad 5° Decemher 2022 an lhe malarial piaoed unions me and Wilhuul me previous immea bclng panias [as] Funhev, in my men, me proposed Inlervariar is nmwllhnul reouuree In that no may mmmanne crash proceedings againsi me previous imsieae and me Aapiicanis who siuriod me Dean n1AppoinimenI :71 new imsiees denied 26" January 2022 (or anyone eise ne deems neousary) to seek a declurutinri on me irivalidlly M the Deed oi Appoinimeni of new lrusioes daled 29" January 2022 and lo oorissquenlially seek an order in am asidn ms ex—pane Ovderdaled 5!" December 2022 in A:GLciiELlyHlBxGEzN1ID vane n all! ma s.n.i n-vihnrwm as flied m van; .. nflginniily sun. m.n.n n. arium wmi [49] As such, Endosure a is dxsvmssed with com o1RM4,000 0010 be paid by the proposed inlewener to me Apphcanls. sumac: In awocamr. Dale 21* Ncvamber 202: AIIAND FONNUDURAI Judas; High Calm Gsorgslomn Pulau Pinang Conn I n Mr. Dug Vu Shin mgemar mm Mr. Lim Waoi wng and Mr Hee Ving Peng «mm The Chambers alVu sh.“ Ong Iv the Apgncams. Mr Jeyasingam salasingam and Ms KAran}ee1 Kaur (mm Messrs. Ghazi & Lim {or me Druposed imervener. cans rvflrrod to: Badraddm Bin Mohammad Mshidm Rosli Bm Momdm & Anar v. Arab Ma/aysia Finance Bemad A Anor[199.9j 1 MLRA 133 at pp 154, 202, [V995] I ML./ 393' (199812 cu 75, [1996] 1 AMR 90.9 sw Aamcwauynaaxszzmrn ha: 2: at H mm smm ...m.mm be used m mm .. mmuny mm: dun-mm VI] muNG pm Dixon Khoa Soon Hoe V Knh Jrak Chsw [2015] MLJU 1441 Empnrium ./aya (semung; Sdn 311.1 (m nquntanen; v Emporium Jays (leranluu Sdn 51141290114 MLRH 517; [21102] 1 MLJ 152, 1200213 CL./ 10,- 12001] 4 AM»? 4559 Hong Laong Bank BM (/ormel/y known as Hang Lsang Fmancs am) .1 Srsghom Sdn arm and omsr 5179661512008] 2 MLJ 622 /n Re: Mercury sscunnss Sdn BM and Anor [2019] 1 ms 1045 Lee Chafseng vMa§Inum Comoratian Cansomum Sdn 31141201511 LNS 243 Lgglslatlonh Mama to Rules ufcam 2012, Order 15m: 5 Govsmmsn! Hocssdlngs Act 1956, Section 9 sw A:GLcwEuyH£BxGEzN1ln me n ms .11.; s.n.1...m.m111.. .1‘... m mm 1.. mm-y mm: dun-mm VI] muNG Wm lorlhe purposes of educafinn and such whoa! us In be known as lhe “Han cmang School’ [51 The Imslees managed me High School [mm 1952 until 1955 mmugh a Eoard or Gm/emuls when the management was hnndsd over to a company nmmpomted m 1955 by guarantee known as Penang Han Chlang Asmaxao Chmese Schuuls Msodatmn (neranauu refened to as “Pl-OCACSA“), [7] The pmp0ssdIn|arvarIercan|1afId5(|1I|lh9 Hun Chinng Schularsmp Fund [the sumac! mnllevohhase pmoasamgs) was esmbfished m 1002 as - |ms| «mm a common ov Malayan new (Mm 200,000 00 by Lmu Lean Teng. lhe grandfather of ma pmpoaed Inlarvener m 1960 as swam which wns mmauy In: lha davelapmenl or me High School. [31 The donation was later used by me cmsoaes of me Hugh Smock ea set up the Scholarship Fund for the needy s1uden1s 01‘ me High School The proposed mtelvener mnlends that 5| is a public chamablelrusl [9] Between 1964 and I965, the oommlnee purchased six propemsa Vol sn5,nou.m arm a swarm pmpany «or RM370,D00 00 ‘VI 1995 (mm me Iund as loHmIs' a Lot I148, Section 4, Bmturwonh‘ Pmvmoa weuesley Norm Penang m Gram 30414 with premises M14165, Jalan Kampong Banggan‘ 12200 Buttalwodh, Psnanu. IN Aamcwauymsaxszzmln um um more Snr1n\:unhnrwH\I>e 0;... m van; ..a mww mm; dun-mm wa mum am la Lot 355. seem 6,Ge0r9eli1wn, North East Districl, Penning in Gran!‘ 25024 wim premises No.18, Jalsn Lim Lean Teng, nsoo Penany: c. Lo| ass, Secllml 5, Georgelmvn, Nomi East Dianna, Penang in sianr 2502:; mm premises No.26, Jaian Lim Lean Tang 1 I600 Penang. a L411 714, Ssclion as Gsorgmbwm Noah Easi Dis|ncl, Panang In Grarir mane wrlh pmmisas No.46‘ Jaian Lllll Lean Tang‘ 11600 Psnarig: e Lot 556‘ section 6. Georgetown, Nomi East Dis1ricl, Penang in Gram 25025 wim premises No.20, Jaian Lim Lean Tang‘ 11600 Penang, V. Lot 55?‘ section 6. Geurgemwn, North EastDIs1ricl, Penang with premises No 22, Jalan Llm Lean rang, iiaoo Penang: and g Loi sum, Mukvll 1, Pmvmce waiisalay Osnlml, Psnang in com MukIm:l01wiVJ'i premises Na. 17‘ Jalan Kehssa Emu. Tainan Kaiisa Emu. 13700 Prai‘ Psnang. [10] Pursuant to me esubiishment at me Han chiang High School Scholarship Fund (hareinanar revened in as 'HcHssF'), |he working committee was set up to manage me same and ma proposed Interveriev is the present chairman nurse said wmmiuee IN Aamcwauykaaxszzniln ran: 5 MIA -ma s.n.i ...m.mm be used m van; .. nflgirinflly MIN: dun-mm VIZ nF\uNG puns! [111 the Rules and Regulaltons of HCHSSF whlch regulates Ihe management or the same was lormalisec ch 30*" Aorll 1993 and signed by the then two survlvlng members or the mmmlttee whn were also trustees or the stx pmpemes namely the late P'ng Seok Ch'nia and the late Johnson Lam [12] The rematnirlg members olthe Board or Directors oltne Hlgh school are appmnled by the exretlng members or the eommmee in the event or any varenaes. [13] up ml 25'“ November 1993. saleclod mmmi||aa member: or HCHSSF had been annotated by the oommrtleo as trustees tor the six pmperliazr and had also decldad to Mgtsxer them as huslaas tn the documanls ensue [14] The trusrea of the Sald prooemes M HCHSSF were also members ol the working comminee [15] The proposed lmervener norllends met PHCACSA has no aulhomy, annual or rlgrrt or management or HCHSSF rncluorng me slavsn propemes wmch lie whh the worklng oommlltee. [16] From the evlflanoe adduced I399 Exmbn LBL-5). there was a Declaratlon onrust dated 25'” November 1993 whereby there were to be16 lrustees ol the HCHSSE [I7] Thereafier, Vide Exhlbil LEL£t ll ls apparent lhal there was an executed Deed or Apporntnrent or new truslees cetea 2w December mawhereby l3suIvivlng trustees had apoarnrea 5 new trustees one or wmch ls the proposed inrervener he ' IN Aamcllauymsaxszzmln Pale 5 all! None s.n.r ...n.mrr be used m van; me bflglnnllly sun. mmn VIZ .nune wml [IE] Thereaflev, in Enclosure 1 vmch was filed herein an 2"‘ Novcmber 2022 Ihelnur Applicants sougm the rommng orders a. A declaralion mm they are In be named as the {our new trustees or the seven properties a! the sonolarsnup Fund pursuant to ma Declaration M Trust aatoa 25* November 1993 as well as a Deed nlAppo<nKmenloVnew Imsmes damn 25" January 2022. h. Trm ms Imst propemgs be ves|sd in me name of ms new (ruslees m accordance wnn une Deed :1! Appointment at new Iruslees dated 26'” Janulry 2022; and c. Thu Aponcams be nuawed |n apply for ramaoemenl amiss. [191 In auppon owns apmoanon, it was averved byalfidavlllhsl me said trust had only two survivmg rrustea name\y one uaco oo .1004 Tee as well as one Dalo vaon Mon cnai and ma: these two surviving Irusines had axeculsd Ina Deed ul Appomunem of new lmslaes dated 25" January ZD22 appointing Illa Applicants as new lmstaes, In the amaavn m suppon ol ma appflcallon, mo Aapllcanls nan annaxed me ssm Deed o1 Apooimmenl (:1 now Imslees wmon nas been duly stamped oonfirmlng that Inare were only lwn smvwmg |ms|ees who was rehring and were appalnung lhe Appllcanls In lha slid document, whllll relevance was madalome 25'” Navember 1993 Declaration MTVIJSL no menuon was made about 01: (we new lmslees appointed an 29" Decamhav1BBG. yn Aamcwauynaaxszzmln Van 1 :0 u None sow n-nhnrwm be mad m van; .. nrimnnflly mm; mmn wa mum am [20] As me cause papers appeared to be in order, I rm granlsd war in terms of Endosure 1 on 5'" December 2022. [21] Lim Boon Lln, me proposed irirewener rm mes Enclnsure e la imervene and sex esiee me ex-parts Order grameu on 5'“ December 2022 as me Appiicams have since Ihe ex-pane Order Dean duly regisiered es Irus1ees on me said me am: as such also seeks an Omar me: me Applicants‘ Hams as uusiees on me seven uues of iris properties new by HCHSSF be deleted Th Frog ealrr eermrr enslsmm none [22] The crux or me pmposad mierveners wnlenhans/submissions IS as (aliens a He has me locus 519011! R) inierverre us he has an mieresi and/or IS dllscfly arrested by me ex-pens Ordei. u. The Court is not runczus omcia: c. The sx—pme order da\ed 5'“ December 2022 which declared me Agpiieerus as iour rrewrrusrees is nulh invalid and irreguisr as me Appiieeuis am not eemmmee members oflhe HCHSSF as required by Rule 7 or! me Runes ind Regulations of me HCHSSF cause so” April 1993 whereby mere srisii be a minimum of eleven (11) members :71 me eommmee er a maximum of Menlysone (21) members oflhe said committee. .1. There are mooflslslencles in me daies at resigriaiinri by Dam on Joe: Tee and Data veorr Mari crrai us imsiees in me Deed IN A:GLcwauyH£BxsEzm1n men all! Nuns smu I-vihnrwm be used M van; me mm.r.y mm. dun-mm VIZ nF\uNG Wm! of Appointment oi new trustees dated 26“ January 2022 which is reiiected in the poiieerapori dated 12"‘ January 2022 b'yTan Sri Dato sari ‘ran Kdk Pine and the need 111 Appoinlmenl or new trustees dated 26'” January 2022. e. The purported letter or resignation oi opi Tiang Ktiodn dated 25" December 2021 as trustee was irregular/irietlective as it was addressed to two trustees. Data on J00! Tea and Dam veon Mon ciiai and not the oonirnrttee oi HcHssF, l. The registration at itie tour new trustees on itie mice was not concluded oy way at Farm MA out by ue pt lhls ax—parle court order dated 5'" December 2022 and ttieroiere irregular. g The Applicants did not obtain trie consent at tne Attorney General oeiore obtaining a court Order confirming their appointrneni as required by section 0 of the Grwerriirient Proceedings Act 1950 as itie sctiaiarsiiip tunds are a public ctiantabie trust h. There was niatenai non-disclosure/no lull and lmrik diseiosure In ine said application Mien the Applicants‘ prayer ior auttiumy to apply tor repiaoement iitiee tor me seven prooenles oi ttie sctioieretiip Fund was made despite tne Appiicanis‘ solicitor being intonned VIE letter dated 14"- January 2022 that ttie titles were in itie ouetody ot the nropoeed iiiterveners solicitor II lne rnatenei time. iN A:GLCiiEUyH£BxGEzNilD mes and ‘Nate s.n.i In-vihnrwiii re used M me, o. nflgiriniily mi. dun-vinril 0.. nFit.ING we i That me pmpased mlarvsner being me Chairman :11 me sad carrirnmae augm lo hive been named as a newly and be served with ins onginsung Summons 1. The M0 relvringlmslees who appomledlhekpplicanls as new Imslees ought In have been named as pin: Appiscanis In ans Onglnallng Summons. nre gggloarm oonuntunnl/lubgg sslons 12:] on me oiner hand. the Applicanllr in opposing Enciasurs is may ocnlend that in: pmpassd imervaner rnusi sausiy that ha anghl lo be allowed in iriiarvene whim they submit mar he smuiu run he so allowed Sewnuly‘ mm W allowed to inlurvene, u rnusi saiisvy lhal the said Court Order dated 5* Dacember2D22 ougm In no salasioe WI me vary nme proceedings and NOT was a aoiimrui actton. In this rugurdr me Anni-unis submilas iaiious. 5 There is no ionger a ‘pmeoadIngs' in ms Origlnillng summons before mis com for me pmposed inlervener In inurvane under Ovdur 15 ml: a Man Rum o1Co1m 2012. :2. This court is fimcius oflicm upun delivering the Order var me onginanng Summons on 5'" December 2022 and me sax: Order being perieciad. c Tne pmpoura miervaner has gel no locus srandllo proceed with this present application aflher parsnrraiiy or as me sols Iruslse in me said xrusi. in Aamcwauyfiaaxszzniin rue In all! 'NnI2 s.n.i nnvihnrwm .. flied M van; .. nnginnuly sun. mmn VIZ nF\uNG Wm

Tika 2.6.0 & Pytesseract-0.3.10

WA-22M-249-02/2023

PLAINTIF SMALL MEDIUM ENTERPRISE DEVELOPMENT BANK MALAYSIA BERHAD DEFENDAN 1. ) PESAKA PERSADA SDN. BHD. 2. ) FADZIL BIN ABDUL RAHMAN 3. ) SUE HARLINA BINTI SUDIN 4. ) FARAH AMMELIA BINTI RASHID 5. ) NUR FIRDAUS BIN FADZIL 6. ) QARI MUZAFFI BIN RUSLI 7. ) RASHID BIN ZAKARIA 8. ) MARDIANA BINTI AYUB 9. ) MARNI BT MOHD JAMIL

Civil procedure – Summary judgment – Default in repayment of installments towards facility granted by Bank/plaintiff and application to strikeout defendants counterclaim holding plaintiff responsible for misrepresentation and loss of profit – Whether the plaintiff’s claim was premature - Whether plaintiff was entitled to terminate and recall facility - Whether there was manifest error in certificate of indebtedness - Doubt as to bona fides of defence – Conditional leave to defend - Whether defendant ought to be given conditional leave to defend – Whether counterclaim was obviously unsustainable – Rules of Court 2012, Order 14 rr 1, 3, 4 Order 18 r 19.

21/11/2023

YA Tuan Yusrin Faidz bin Yusoff

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=f20f1388-61c8-4cd6-a6aa-53664aabb197&Inline=true

21/11/2023 10:35:39 WA-22M-249-02/2023 Kand. 49 S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N iBMP8shh1kymqlNmSquxlw **Note : Serial number will be used to verify the originality of this document via eFILING portal HA—22)(—2I9—D2/2023 Kand. 49 21/Imm 10:35-22 IN THE HIGH coum or MALAVA AT KUALA LUMPUR (COMMERCIAL DIVISION) sun no. WA-22M»2l!-02/2013 BETWEEN SMALL MEDIUM ENTERPRISE DEVELOPMENT BANK MALAvsIA BERHAD (company No‘ : 197su1no5z9n (49572-H] PLAINTIFF AND 1. PESAKA PERSADA sun. sun. [Compmy No. 2n12nIonasa: (56010!-U1] 2. I=ADzIL BIN ABDUL RAHMAN [NRIC No. : 59|l401-lJ1~§1S3l 574751;] J. SUE HARLINA BINTI SUDIN [NRIC No. ; 750131-14-5!36lA3135u9] 4. FARAH AMIIIELIA BINTI RASHID INRIC No. : 9aInJn.o14;1s4] 5. NUR FIRDAUS BIN FADZIL [NRIC No. n5n427-7I.so:1 1 E. QARI MUZAFFI BIN RUSLI mmc No. 31011:-14-5243] 7. RASKID am ZAKARIA [NRIC No. swzI4—aI-5:51 17361331] 3. MARDIANA EINTI AYUB [NRIC No. uo5I74Ia-ens] sw IBMPashMkymq\Nm5quxIw -um Sum! ...m.mm be flied M mm .. mwmny mm: dun-mm VI] .mm mm 5 MARNI ar MOMD JAMIL [NRIC Nu. 300128-26-5220] DEFENDANTS Qsgyuns OF JUDGMEN1 INYRODUCTION [1] Thii judgment aaausm Iwc Inleflocumry appllcahons Flully‘ u concerns me Plalnmls apphcalmn for summary pmgmenl (em 10) agamsl the Defendarus undev o 14 H Mme Rules of Cnurl 2012 (‘Ihe Rules‘) Secondly u mvawes (ha P\amml‘s apphclllun (anal 12) to manual (ha Defendan|s' Counlerdalm based on 0 ca r19(a)ol(b)oHhe was and me mherenl puummmn M Ihe ccun [1] \ considered both appllcalvons swmukaneausw ana had on 11 as 2023 reached me {oHowmg declsmns — a) :5 In men summary judgment appucauon, x msmzssed me same and mslead granted me Delendams leave to delend on me cnmmon mat the sum 0! RM! 200 000 no he paid Inlu Courl wmw. so days, and com cl RM5 mom on m livuuv nllhe Plamufl, and am xEMFknMkymq\Nm5-qunw mm. Snr1n\nuuhnrwH\I>e LAIQ4 w may he mm-y mm: dnuumnl VII mum Wm! RM930,DDO oo Tms contenuun rs argued in be supparled try me semng-ofl onwo (2; Ineenm Fmgress Cenmcanes (IPC) 1 e IPC Nos 46 8.47 resuhmg m me reduced lnan wanes specmed m me said renter was 23 05 1021 [m Farmer, me Dmenuanus oanlend man |he Plammv shuwd have waned for me rswanue u1\he cenmcaxe av Commahon and Comphzno: (ccc) before makmg any aemand, as mere remams 1 sgnmcam sum no me 9 mdhon In be paid by PR1MA to me Plalnlfli based on me Dead av Assignment M s argued that me pmea was nearmg as campxenan \ e at not/, oempwauon as clatmcd by me Derendanls The Derandanls «mm argue trial the de\:y was due in me cox/nn—19 pandemic wherein PR1MA has mdlcaled men Inlenlwn 10 gram me reomrea exxensmn omme [23] 91 also alleged man me Plamuu had tepvesenled lha| |he remamlng sum due was unly RMQSQDCD 00 Much‘ upon Plammfs decwslon not I0 gram funher financing‘ encouraged D1 in arrange (M (‘NH (2) rescue contractor: namely HIS Ullrl Sdn Bhd and Ansya Ccnslmcluan Sun Brld Io camplele the Cantract On D4 02 2022. upon knwvmg that me mns|andmg sum was higher D1 contended that they weva (bread to negwal: rat the lermmzmon Mme comm mm PRIMA ow claxmad that my avemuauy tevmmzle the n m xBMF3snMkymq\Nm5~zunw «mm. smm ...m.mm .. U... w my me mmuny mm: dnuumnl Vfl mum Wm! Contract by mutu.I\ agreemenr an 1865 2022 (em 5ME—6 al EM: :1). wherein PR1MA had subsequently deducted me oanslructmn cost or RM3 5 million igmnfl me Feflormanne Guarantee Fund 0! RMEJBSJSG so The prqecl was evenruafly cnmpmed by me rescue conuaclars whevem me ccc lor me same ms rssuea on 23 ca 2023 D1 merevure argues Ihal PR1MA‘s dedumon al RM3 5 million agams| Ihelr enlmement Iowavds me Peflcrmancs Guarantee Fund wnuld not have |aken wane our lo! rne F\aInlM's nnsrepresenueuen my Tne Decenaanuv Veurned counsel med me use :1! E; nu-c sun and v Mlr em aunaer sun End [2019] 3 MLJ 435 to argue that me o M Junsdlclmn rs only he be exemsed m very clear oases wherem me In(en|IL7n Wis not to shut out auvenaancs from merr day rn court The case of ya: Nair: Mannie v Mohd I-nml A or: [1992] 1 MLJ 400 rs renea to argue that lnable rssues vrumme amdavrteuiuenae Dresented before urrs Ommare sumcuem to msrnrss the Wavnhffs applvca|ian and direct such resuos to be mad vwa was [251 In response‘ Plaxrmlfs learned counsex argues that me conlents omre Phmmfs Kenn! ualed 25 05.2021 deavly rnmcane that me Pnarnm unly 12 m rBMFssnMkymq\Nm5qx-new «mu. smm nmhnrwm .. u... m my r... uflmnnflly mm: dnuumnl vu .nuue WM pvovldod In asnmane of ma oumandmg imnunl under me Flcvlvbes The term used I e ‘plus minus‘ IS argued |o mmcals that me slated ammml av RM93o.ooo on was an eslvmaie and sumad to change based on me acmax paymems raoelved It \s :\so arguud max me ward “pnnclpal nuwizrvdlng“ used m we sa:dle1leHndI<::(esma|lhe same Is subject to mleresl and umer charges men may vary based an vanduslacmrs It Is ma Plamnws use that DI musundersoood me conuem cf the vlainms Ianer dated 2e 05 2021 wharem wt dues not amount lo a mnsslalzmem ar nusrepreaantaunn. [261 The P\aIrvtM's caunael cued the case of gum: mg; Ayn: p_a1 sdn an sank Porunlan Mala an. and [2015] 2 MLJ 55 and argued max m any event, the ex\s|erIce M a ooumerclaxm aces nnt autamallcafly imply me exIs\em:e M a mama Issue [271 on me wsaue oi oorrennasa 01 me amount craumed me F\amml argues corms applrcsnon dr aancluswe evvdence dauses wmmn me Famlmea and Guaranteu entered between games Proolaf quantum has been agreed to be nased an a certificate M mdemednesa asued an 18 05 2023 (am SME- 11 M encl 14)‘ wmcn m absence of manflest error womd be deemed onncmswve nee at me arnoum slated to be due Reliance ws made on m xaMF3snMkymq\NmS-qunw «um. am nmhnrwm .. med w my me annmuu mm: dnuumnl Vfl mum am me cases at PT Bank Mlxbank Sxariah Inuoneslu v Mlndo-Trude sun and 4. 054201515 MLJ 239, arm Camgnlu Finance arm v Ho ' ' g mum; at KH Tndir_v§] 5 nor [2006] 3 on 544 vmereun u Is an aocepled legal princlme that tune: me pmnuw hid exhvbned me oerlmcale at Indebtedness me burden then shmed In me aetennams to Show by way av evidence Ihal the caweulauan amved by me p\amIM was wrong and/or mar mere was mamfail error m we cemneane ea muemeaness As such me Plamml argues me: they are entitled to lenmna|s and receu me Facwly by rssuing a wener ol demand uaxea 01 as 2022 (exh SME—§ af encl wand me emu sun age-nu me Delendznls «or me nueraue sum Enclosure 12- s ng Ont emu Defendants‘ ouumerclairn (251 me Plalrmlfs counsel argues mat me Delenaams eaumercxeun Is based on me aflegalmn at musrepreeentemon n. umounaea based on me revevann correspondence msclnsed as weaded m me counxemlaun Tne case 09 Bandit aulluor Sdn Bhd 5 2 On v Unmd Mnlnynn Blnklng curguratinn Sdn am: [1993] 4 CLJ 7 rs relreu upon to argue mat the Defendants’ counferdaxm rs obvuauery unsustamame u sru rEMFasnMkymq\Nm5quxhw mu. sum mmhnrwm .. u... m my .. mmnnuly mm: dnuumnl VII mum WM [29] Yne Plelnlllrs counsel relles ln me case at Flngurusan nznanarla Mnlonal and v Asas Matrawllurl sun and L or: [2009] 1 LNS 1BH)|n argue lnel me Delendanls’ caunlamlalm lens in estahllsh zrly causal curlnechon belween lne Plalnulrs acuons and me alleged losses lncuned by D1 ln essence the Plzlnllflargues man mere ls no evldenoe to suggesuhal me Plamlnrs lener ur represenlauuns dlrectly led in D1‘s decrslun la lennlnale Me canlncl or lncur me alleged RM3 5 nulllon ln losses [:0] wlln regavaslo enel 12 me De1endanls' counsel relles an lne cases nl Manny 5 On v Pm M-rwluk Mltgholl 5 co 5. Anor 193711 ML! 57 and Llzh Holdlngs sun and u Pgglin Dcvelogmenl Sdn End 5 Anor [1954] 2 ML.) 105, la avgue that as me calmlerdallrl alscloses same ground el amlan me mere lacl met me Delendznl ls nal llkely lo succeed on ll 21 me mal ls no graulld ml II to be skunk am [34] The Delendanls alsu relied on the can: at Email Ellildnv Sdn gag a 2 on v Unll-d Milnxan Bunklng coral-anon Sdn and (supray Abdul Rahim In Abdul nnmld a. DB v Fenian: Merchant Elllkers and ; gg moo] 2 MLJ M1 §‘1_|h_umnr AIL vgrgmgg]. any 1 §:rloull AIL Rlllnnm poll] 5 MLJ 70‘ lndlh DI sell a u cor uuon sun Bhd A 15 em lEMPIsllMkym:\NmSauxIw “Nair Smnl n-vlhnrwm s. u... m may he nflmnnllly mm: dun-mm VII .num we Dr: V Jumo Foong cnang Yuen aanamu [zoom 1 CL: 551, Slvann Raslah 5 Or: v Che Hamzlh Che lnnall 5 9590121 1 MLJ 413. and V Kl! n G-mnan Maknuu n N cri Pahln Dlrul Mlkmur [ms] 3 cm 1 lo avgue max me counlevclalm Vs nu| a plam and ubwous case In be slruck out as wt contains an arguame dawn and reasonable cause at amen against me Plamuw [32] The cases at Sea Hang 1. Anal v Saw sang Chang [2013] 3 MLJ 235 and Hi uslnu son Ehd 5 0!: V Ar 7: i-M Sdn Bhd (20131: MLJ 511 am raferrud |n argue man me words“1rrvu\ous orvexauouz.‘ m lImb(D)ol015 us generally Iderlo a gwundless amen alslalementwnm no pmspecl av success which ws nm Ihe case wrth me Delendinls' cuunlevchlm FINDINGS AND DECISION Sumrmry Jmsgm-m (Enclouun Ill) [:31 The purpose of summary ‘uflgment Is ln gram mugn-em at an my shge ai he ungauon pvocass u \s sa grantee unau appmpnale 15 am »EMFasnMkymq\NmS-quxhw mm. am ...m.mm .. LAIQ4 w may he mm-y mm: dnuumnl VII mum Wm! cucumslances m order to save me and costs associated mm a mu Inal The Courts power in grant summary judgment can he Vound In 0 14 :1 and 3 ol the Rules [34] o 14: 1 Mine Rules read asvonows » m Where m an Amen in man this M: awl ea . smirmm at aim has been served on . delendanl and m:| aelenunnl his mum an ippeavanee m the anlmn (M pmmm may on ma ulnuud mm ummam huno «ram m a dam Included m the mu m In a pamcular run so mm a damn av has no «mm to am . mm m purl ucom an In ma nmounl at my dimlqu dawned. apply no me am Vunwdumenx aqamsl am dcfandanl (27Sub1ecI Io pirlgr-Iph :37 M5 M15 avblnes In new mzmn bigun by Wu! mhet Inan em wmm mdudu — (a): sum. hymn plammflovlwbel, slander, rulmous pvuucwulh Vibe Impruonntem saamam. ar Izmach ulpmrmle a4 mnnuvt or my . c! m W m pmnlvfl band an . -lllqam-um ullraua m ma mam mu rm Ioplylo an awon la wtucn o :1 Wu... [:5] wr-mu 0 14 r3 ohm Rum read as Follows’ - m um» an the hearing at an applraflon umllv min I eMn:1|he Conn ummsaea ma -pplumun nrihu anmam nmfia: on Cam mm mwtd n: ma clmm. mus van 0! a dawn, to me» me ipphulmn relates max (her: m In nu: orquelnm mu pm. Much mm In 54 um nrltmmm mm for some nmerliawn «one a max cl max dam a pm lh: Cmm maygwe such puflnmlni rm ma pumum lgnmxl man aeisr-dim an that mum or out as mly 1:-‘nu having vegardlo In: nature mm; vvmedy une\Ielc\:Imsd 42) nu Conn may by order am: smecna sud! conamm, Ilany. as may mun. shy Ineexecunon olanvymdgnunlflwenaiawlusl :de4em1an|unde< um ml: unm anal was In:\ a: any ammluvvlmm mida nl mud by me nefandanl m the amen SrNxEMFa:M1kymq\Nm5qn-new «mm. sm-1 ...m.mm .. U... w may he mmuny mum: flnuamnl VI mum Wm! [:91 The law gavevrllng summary nmgmenl ls Irile and had haen succlnclly slated by Hasnlm Vamp sanl SCJ (as ne men was) ln Malaygn usurancl [M sun slug vg. um ggn EM [1937] 2 MN 183 al p la: -lol Vhe umnyln; nmluluply VII ma cm: 14 nmmlorl V! In Name!!! a ulalnlm deirlyeullfled lame mmvayhvm bang delayed hlslul1gmsn|wh-rs mare V5 nu lalny ivqunhh Galina: lo me slalm Ylle pmvlalan should only M apclred la aseswhele lnm ll no ruawnable mm lnn V1: plllmlfl ll erlmled |a Ihe Judgment 0VflBl14ll nalmnaealn shu|olMIve aalenuanl Tho lunldlcllonshwla enry bl Ixnvclud VI very chat cues“ [37] In Bank uagg Mglugj 1 ulolla lyniil [1992] 1 MLJ 400, lna Cnurl nela ma! wneve an asseman, denlal or dlspule ls equlvucal or laolnng pleclslon or ls lnoanslslenl wlln undispmad contemporary documents ov omer slalemenls by me same deponenl, or Y5 lnherenily Irnprohable In libel!‘ than Inch amnlan av denial wlll be Iljacled, lrlerahy rarldenng (ha l-sue nal |rlab|e ln alnel wards‘ leave In defend wlll nol be gramed based upon "mere asssmorls" hy defendant‘ lnslsad, lne COUII wlH look at me wnole alluillorl cmlcally ll: examine wnelnar me defense I5 credlbll [331 In lne Plrvy Council as. nl Eng Mu Van] ; Q5 1 Lmrlumn an 1197912 MLJ 2l2, al 2l7. Lard Dlplock explalned ll as mus 'A\lhough WV ln. numlal way u Ii nu! lppmpnlli lar . wave lo allempl lo luolv: walla; of evloenae on .«.u.nl. Mls dues nol mean max he V! Bound la Inc-pl llncnllully an I: mg a fltlpllll ul an wnlcn call. (or lullhev lrwasllgallon evyy sraleme lull in slmavn numel equwmzzl. SrNlEMF3mn1kymqlNm5qunw “Nair s.n.l nuvlhnrwm .. UIQG m may he nflnlruflly mm. dnuuvlml Vfl nrluna Wm! lsckmg m pm-uan, \n:o«amm|vnm .mm..maa cnmnmpovlry uocwnenls uvamevsulemauuhymc name account av mheranlty wmpmhibll /1| nun nmnyhe m makmgsudt ovdu mun: applmilvon .s he may mm Mr M mageamn.awun.awsuon»mcnnam uxerunlumcufly ‘(mint mm m decermnna m use firs! mslanee wlmhel sfalemank contained m ulfidmnll mu ave mm umm as V: Hg 3 n:oMHI.1 91 mama upon . re\ev.nn| Incl have swam pnma vaae nln-mmlrty va mam imlher uwuugaunn as m min mm- [31] In ma evnnl me: me coun finds man there are -me: to be mad‘ wt ms the amnomy to grant weave in de4enu as ooncenea by 0 14 r my 01 me Rules which sapulaces as vnuows — mu |u a.u...a 10 u 1 4; 4 m w my ma Cum may give a delendam agamsl whom such in ipphcwon -s mad: Vern to salt»: on lmnn wnn rnpsd w the clam: or m pin cl . danm m mm III: appncamw. males gum unmnd|l4onaHy or an sud! hvmi :1 ca glvmn Incunly or nm at man: anm av mhuwhe :| V: Imniu in M) [An] Based on me aioremenuoned pnnclple and cansndenng me vaaual cunlexl ov me Currant case. K xi unmspunaa max ma Faaluies had been gramaa |o D1‘ wnuem D2‘ D3. D4, D5‘ D5, D7‘ De 5 D9 stood as guarinlurs lo ensure perlmmance of D1 based an me Imms me me respective Facflmes :9 sm xEMPashMkymq\Nm5qunw «mm. Snr1I\nmhnrwH\I>e U... a may he mmuny -mm: dnuamnl VI mum Wm! [Al] on the Issue al the auegauon max me maumm snomd have wawteu «or wssuanoe uimeccc, «e ca conlmue wfinanoema conuact warn onnewew that the same does no! imuunl lo a mable issue nus ws sa as base on Clause 16 6(3) o1 Facility Agreemem 1 5 2‘ me Plamnn vs no! (mum! to accede \u D1‘s requestior rsslmctunng arm/ormnnerhnanung Such paws! lo rsmmccure av mcrease \s at me sa\e mscvetmn onhe F'\amIn1 [421 From me facts, u \s ewdenlthat m was unable |o serwce me Facnmes upon me mu(ua\ termmzmn onneconnacmm PR1 MA on 18 05 m2 The in av non-payment and (ennmahon uuonum mm PR1MA mnsmules an event at defaun as stipulated m Clluaes H 11) z. (5; ol Schedme 2 al Lenev ni Ofler 1; as wen as (Nauses E (1; 2. n (4) of Schedule 2 M Lelter at Offer 2 Hand on ma event cl del-ull duscnbed m mm -mamas much are repncanea m Clause 101 M Facmty Agmemenn 5. 2‘ x mm Max me Hatnhfl ws enmled nu (errmnate and remu me Facility by issumg a letter 0! demand dated m 09 2022 (exh sme-9 olencl 11), and Iheveaflerfilelhls swl against me Dafendanlsforme overdue sum The relevant noncas ware xssuad to me neaemancs m compnance av Chause 15 6(a](u)o1Fac|Ixty Agreement 1 & 2‘ as weH :3 Clause 20 \11Guaran(ee 1 am clause zeta) a1Gu:ranle: 2 all 01 m rNxEMFscM1kymq\Nm5~zn-nw «mm. smm ...m.mm .. U... w my me mmuny mm: dnuumnl Vfl mum Wm! b) as lo the Hammrs apphcauon In smke nut me Defendants‘ Caunlerclalm, I auuwea the same mm oasis o1 RMSDOD on \n favour Mme Plammr [3] As one Dedendanls «awed to sa\is1y xhe cnndlban Imposed under and we we Plamufl has proceeded to enter final judgment Preceding «ms. on us 10 2023, ms Devenaam Ned than ippefls agamu my daemons m mm endusures BACKGROUND FACTS [4] The F|rsIDe1endan( |‘D1')wIslhe cusmmer ofthe Plalnlfll bank. who had appuea fav lhu finmcmg at a cmmmcuon prmcc! Based on In (War Letter caved 12 a5 2016 (‘ Leuev ol0Wer1‘)and a Funny Agveemenl dated 05 us 2015 (“Facmty Agreemem 1‘). me F\amllll granted D1 wnn vamlmes amounting to RM 29 ooomm on (‘Families’) Tm: compmes Mcommudiry Murabahah Revolvmg Financing-1 FCMRF-x I‘) worm RMID‘D00‘D00 co‘ cummomcy Murabahah Revmvmg Fmancmg-I (‘CMRF-1 IV‘) worm RM8‘D0O,D00 no. cammmmy Murabahah Revuiving Fwnanclng-w (‘CMRF-I rNxEMFscM1kymq\Nm5-qunw «mm. smm ...m.mm .. U... w my me mmuny mm: dnuumnl Vfl mum Wm! which were deemed served 3 business days Iflev msuanoe via regwsieted post [43] My sole resewanon us: In me nultev ol quantum as amculaled in me F\ammVs wetter dated 23 05 2021, and wnemer u an be ueocncnea with me Cenlflcile or xnaemeanm famfied with me conclusive -wanes daula an mandated by the canlvarztum dncumenxs In essence‘ Icwrdmg lo me Defiendanls. the vepyesemnon of me outstanding amount .n ma Pnamnvrs lellev dated 25 as 2021 \s mconem and deceptive I repvoduce me contents onha cam Venar :1 mm DED—8 nl encl I3 - 25/5/2021 vzsnm rzrzsam sun awn ax Jahn Navmem ‘2 ram" Desa sma- moo -Ekuuaw mm mm Data ma: Amy Ranmam Dear Svr. Rzauzsv 10 means: nmwcms mm or we Exnsrme ucuurv sp-we Conxrm Fnnancmg Lme1avFRIMAn Fm‘a<:| we ubcwe mam! Mel: suns Bank huassetied youv abvvesaxd /equal mm an m mqralm miorm max yum vequesl cannot be mnsmcvsd l| um um: due is me Mlawmg Based on me mam flnancmg gmmea m m. Company the Bank many fmmuud up In an-/. muumum cupping apptvvsd Var xm pm1t¢\(MtnV2"‘ sm xBMPacnMkymq\Nm5qunw «mm. Snr1I\nmhnrwH\I>e U... m may he mmuny -mm: dnuamnl VI mum Wm! rsmsad cawvrm m olgnrulczppmg Ipplwad hym: Bankvlisavhy lataev mi mcveased be am 11- remand csppmm -s man-sud tzy yuuv Company As Wu are aware ms Bmk u ums-my Vookmg at ms nsmsmsnx :1! ms vacurm Cuvvun|pmn:Ipa\ onmmndmg u mu :2 Mn ram um OdYI\!ll| z. swung luna mdlected wunh A71 Rmzosw Unduslood mm ls plnfllnfl Dlimunl on u-mun mu worth 94 mnmx murmur wllh another lmenm non, your pvinclpal ouhlzndmq will he nmher miund m mason lplul mlnuu) We need to rum: wmk ml mn you an hm m my semelha nulxlandmg and my cancel ms licmlnes Ann «mm W; SVUO menuonfi max your Cnmpany wm negmmg wvlh pawn anWJP um utmv ma mm npeniso manned In: ms ptqecl as Inemure ms plow: can be aumptsced w. vmmd hke m mm ym fnvyoutlmelelllnd wopuahun m as ng wnn us Shoulflynu requlve my «men nnamn orclanflnalxony puns. 0 nm was no conlacl cxk Amnvn xx:-2av53m5 a. pan NM swan at an 25167417 wank you swsueu xmummmn um xsvmu. mm» Eulh-a rand Camnc Fmmlang Enmwup Eankmg [44] Based on me swdsnsa pmsentcd m we aflmlvlll Ind me argument: pul warm, I am persuaded ma: "us Is not a smmmn where I can gram summary judgment Having said that I nonelheless harbour some resarvmcns on me defence‘ pamculafly me veracny 01 me such ausgmn In view dune lacl that such claim ul musrepmsenxauon was named my aner me sun was filed At all malenal «me prior to me sum D1 did not raise any Issue on mu quanmcnhcn dr menlhe Plamlrmulhe hcuhalthey hm blen mlslepresanled :11 am not Issue any response av assemon as to me existence of rmsuepresemauon upon reoexpt ac F\a|nml‘s wetter daled 11 srNxBMFasM1kymq\Nm5qx-new «ma. s.n.‘ lunhnrwm n. U... a may n. nflmnlflly mm: dnuamnl n. mum Wm! 15 n2 2u22 (exn naD—1o ul encl 13) Much relied: the higher amslandlng amourn of RM2,3oo,92s 54 Further, none at me Darenaanxs rarse such alleganun upnn receipt 0! ma rvapecnve Vellen cf demand and «ernnnanon uarea 01 09 2022 (exn SME»5 Mano! I1) [45] In 159 gslgnabuild Sdn any v. Egggg Kgmhgug gm gm [zone] MLJU 447 wong Dnkwah J (as he men was) held mu a aetenaanrs varlure to repry to me malnlrffs aemana [or payment al a den, would suppon a summary judgment anpncauon agamsl that defendam in respeci unna debt vr Smgham J m Encu s - rnn n na V4 Soon Nln Hardwln sun am: [2009] 9 cm 215 (at 242) held as Iauows - ‘the derendanl annual rm .n Issue ana Lxmlend lhal n Is a Iname sane m the rm cl men -dmrumn rm lzrhrva In prcleu at me lust nvmllme oeponunny aaarnsr me cLIvm rm mlurasl Daymanl at endorsed In me deHv=<y order: and mvmxzsvmnn nwarreoerm By Ihem Thrscounflms mar (hue As a rank at hon: me an ma nlrl cl me aaranaanr when they ma me tssue at a late srage um mspmld the dawn rer me wmelesl payment ~ [45] Conswdelanon Is mso gwen to D1's cenauen m hveachlng me terms ouurnea m me Deed of Transfer L21 Rrgrus dated 31 m 2019 by unlawfufly dwemng payments aeargnaxaa car we Nos 48 an 49 wssuud by PRIMA, In dummy compensate men subwnlmclars Accordmg to me prmnarons wnmn me afuremermoned Deed of Transler al Rrgncs‘ such payments were nqnflmly wine In me Plzrnw By disrugardmg this contractual oblngahun and. 2: m rBMF3snMkymq\Nrv5~zunw «mm. Snr1|\nuuhnrwH\I>e U... w my r... nrW\ruH|Y mm: m.n.n Vfl aF\uNa v-max (unnennore. exchmmg nne Puaunxm In me course ov muluIHy Kermmaung me Cunlract men FRWMA Io secure a sweat clavm on me balance proceeds and rememmn sum ms acnons Carma! be deemed bane ms and are cast m an unvaumame hghl [An In my mew, Ina aforementioned cwcumslances pmvrde ample qraunos lav me (a moose Dondmons upon ma gvanl of luv: to ascend As aecneo m me case 0! Jacobs v Booms Dmlusg co [I am] as LT 62 befure condlllonil weave (a aeaena can be granted the coun must be sansnea that there Is no man sul:/slzn|\a\ queshon zb bu mad or mac there -s rm dnpule as to csccs er raw mum raises 2 reasonable doubt ms: me wammfs are enlllled to judgment In me case a! amlsn and c m oldin 1 gugm flgldingl Inc [1959] as 342 (193913 AH ER 492 [1989]3 WLR 723, n was new that where we aevence can be assumed ss lacking m bona we and perhaps shadow n has been me pracuce cl courts (0 gwe conamonal Veaveln defend The Feaerav coun In me case menu on H V us Ban Hgk [1970] 1 Mu 112 revenea no me Engnsn case or Fleldrunk Ltd v Shin [1961] 3 Au ER sax, wherein 1! was new that when mere Is some ‘ g susplcxous In me dedendanrs mode oi presenung ms case ur wneu me coun vi Iefl mm a ma! dnuhl ahoul me aerena-nrs good men 2. m xEMF3snMkymq\Nm5qunw «mu. s.n.‘ nmhnrwm .. med m my s. mn.u-y mm: mmn Vfl mum Wm! even tnougn lt cannot be said our eeltatn ttut there e not a Inable \SS|Ael lt ls enulled to make an amer mat the defendant do pay the amount claimed or any lesser sum into court or lutnlatt seeunty luv tnat amount as a wndmon to: leave to uetena [441 I behave that the eventual tull tnal woula melnly locus on the esue at quantum namely tonne Plalnllflto explaln tne alwerenoe In lne sum statea In men letters dated 25 05 2021 la 02 2022, and the eventual certnicete cf Indebtedness aatea 18 us 2023 (exn SME-ll of encl 14) As per lne case :2! gene Pm Mining ce. v Fptneage :0 w R see (I882) wneve tne olatntnt sued tot calls and velleu on lne evluenoe eve clerk that he had pasted tne letter oi altolmentl and me delence was non-recelot ol the letter leave was glven to defend on payment ai amount clilmed mlo coun to enable uetenoent to clessexamlne as to postlng ol tenet [49] Aocardlngly tne netenaants are glven leave to deleno on wnfllhun met my ueooslt tne sum at am 2oo.mm no Into coun wltrnn a 30-day Ilmelvame tollowtng the order ln me event the netenoants tell to make ltus deoosn, the Plalntltlwoule be entitled to final juagmentes per prayevs 1 2‘ 3, ano 4 olencl 1a The nipulilad sum vapresanu approxlmaxaly so=/.. nl lne 25 m lEMFkltMkyrNz\Nm54zunw “Nair s.n.l ...n.mn be u... w my t... mml-v mm. dnumlml vn mnue Wm! average «rrancrar vespcnsl my of each Delendanl (rounded up |u me nearest RM1D0‘D00.007 I emmoy the mum of average frn:n::\a\ Mammy eorrsraarrnq me fact man me Davarruanu are bamg represented av are same arm of sohcflors and have mllacrrvery filed a jmm sla(emen( 01 aevenee In Irgm anrre Defendants‘ aumrssrarr Io RM930 out: no wrrrcrr may say to be me correcl overdue sum‘ me rmposmorr of RM1.2oo,oou on 35 corrumcrr Is reaaarrama and would rarrly serva as a langnbla rrrarrrreammrr or me Deven¢ams' cnmbmed hanrlrry uaward me Plarrrmrs claim sulklnn Out Anplica an (srrcloaun 1:) [M] The provisions on sinking am or pleadings are provraea m 0 1: r 19(1) ollhe Rules which Is reproduced beh7w' - -rs Slmwnl am Na-dmul am lnuorumem: re as r 19) up The Own may ar irw mg. acme pwcsedmgs nmena he slmckuuluv amended any pleidmg ul ma anduiemenl at any wm .r. me anlmn at anylmnq m any plreadmg at m rm andorsamunl on me around mar. » rr custom no Ieasaname nun: aramm av dalervce an In: nu mly uh . windmuunr Mvmaus at vuilmul er ll miy p1e;umu.embana:some\aylhe favnul mm aeuarr or up r r. mhlrwme an aura or the Karma: m In: Conn am my under me arm to be suyed urdlvmssea ouuflumem In be enhuvd auwrdmqly. as In: ale may be * 15 srv rBMPasnMkymq\Nm5qn-aw “Nana s.r.r nmhnrwm .. med a may r... mrr.rrv mm: dnuamnl VI mum war [an Ramry Al: FCJ m nn waa Mann {A Mlnor Suing Yllmugll Gnurdlnn Ad Lllem and Non F and chuang Yin E 5 0:: v. M: an Allllnes Ehd And Omar Aggggl; [2o1e1 9 cm 425 laud out me (esflcv mu sxrikmg am av preamngs, wherein mslordImpvele1redlo|he case of Bulld rs sun Bhd. v. Unlled Mllygn Banking covgmlon arm (supra) and held as lollows 1». run my nlnkmg nul lpphcmmn umiuv u <5: <2 ac the ROC‘ an adomed by me Supreme Conn m Bandar Emldevrs are xmev aha .Is6uHaws up n is onw m plam mu amus casrsmil recourse shmna be mu In m. summary moms: under me me, an this summary praceduve can only :2. adwled when .z can be flurry seen mal a claw ovanswer men me me on u otmousw unsuslamable. (c; n rzrmnl u. uemeee by a mum. txlmmlflon .71 me donumsnll and has at me case In nvdenn see vmethsr the party has a cause alncxvon or a «mum my «me u a pomlol xaw wmch requires Ienoui dxscus-an an abymmn shown he am on me puemmg. Ind (M pom! in am my avgumem Imdev o 3:: auuneaoc, and la) me cmm must be sa1xshed(h:|Iher-1 u no veamname zause evacunn mm: nu mm are lnvwaus or vexluaus uruullhu dliencel vaned are ml llguahle - [51] me Caun M Appeal, m ‘mas Rnlan a. on v Che Mamzah Che Ismail Q ors¢supm:¢up1eame weH&eII\ed pnncims of smkmg out m we (allowing passage — ‘A slnkwng om avder shauld not be mad: wmmamy by the wall w mere .5 man: at um um mqmlu Vangmy araumenl ma m Ium mun an n mum a\su not he made a me 5 Issue oflad me: Is capame M /esalnmnn omy akerlzkmn wvmm. avmanu during max (see m Vnke Ngln !.Anov .. cmn Teck Kwee a Arm man 3 cu 305, [1997] 2 MLJ 565 [Federal Cuunfl “ :7 sm xEMFssI«Mkymq\Nm5qunw «mm. smm ...m.mm be H... w my me mmuny mm: dnuumnl Vfl mum Wm! 15.1] the nrsl rssus Is one or locus slandl re wnelner D2. D3, D4 D5, D6‘ D7, D5 3. us are enlllled to mounl a eounlerclalm agalns| me Plarnlm In the case ol Ahmld Rnhdi bin mm; 1. Bunk Ngara ulalag g [2015] 9 ML! 520 me Hlgh coun stluck am a elm on me basls mar me relallonshlp between me plalnllll and uelenaanl was he ramnle as me camraaual obllgallon anly exlsted between me Plalntlfland a lhlvd parry slnnlerly, ln me prexerll ease, me lacllllles laxen by D1 urlly cuale a contractual relarronsnrp belween lne Flilnml Ind D1 The clner laelenaams belng guaranlors are mere nyslanaers, wllh no recourse agalnstlhe Plainnll Theveioler mere are no lriable Issues ln rslalran In one clarrns al n2‘ 0:, D4. D5, De, n7, an a. as wflerelrl lnerr calmlemlalms are unnecessary. lnelevanr and obviously unsuslalrlable mus sallsfylng llmb lb) or o la r 19 0! me Rules. Juslliylng the Cnunlevclalm to he slluck out an me gmunfl lhal ll ls sclndalwus. mvnlaus or velrallaus [54] As 20 D1 ll ls pleaded ln lneir counlarelarm lnal may relred on me Flalnmfs mprssennllan at a lesser la-n balance men larnls me nasrs ul [hear declslun |o appoml rescue eonlraclors lo! lne canlreel namely HIS uxara sun EM and Arlsya conslmclron Sdrl and Upon krlowlrlg lnallne figuras wave much hlghnr. lney clalmed lo be forced lo lennlnaae me Ccnlvncl u m rEMFssnnlkymqlNm5ql-new “Nair s.n.r nuvlhnrwm rs. med u may r... mruury mm. m.n.n Vfl .rluNa Wm! wherern rne sum or was nrruron was deducted by PRIMA lvom DI's Periorrnance Guarantee Fund [55] Flrsfly. rrr order to appmrrl a rescue oonlraclur, logically rne Ccnltzct ueaween or and FR1MA has re be rerrrrrrrarea, ornerwrse PR1MA womd he exposed to a ucume claim From rne evidence D1 farled to show any documenlzry avrdence ro prave mu Hrs urm Sdn arm and Ansya cansrrucrrun Sdn anu were me appomled rescue conrracrors. lnslead based on me Muruar Temunalvon Agreement aarea 15 05 2022 me auual rescue cunrracror rs known as Army: Conlllucmvn (.lMD297A79-P) [56] Based on Re1:IlaIG A Clause 2 1 aurre Muruar Termlnauan Agreement dated us as 2022. me frnar exrensron of rrme granted by PR1 MA on B1 ended on an 04 2022, wherem a Jarnr Fmal srre Vlluaunn was none on 24 03 2022 re fix a value on work dune by D1 on me agreed cuwfl aare [51] Furrrur. based on the amdavrr evmerrce D1 rarle ru Ihuwme nuegea deduclrnn or RM3 3 mrmon by FR1MA from me sam Femrrmanoe Guarantee Fund Luukmg at me avarrable evidence wmen re Clause 4 1 or me Muurar Telmrrutron Agreemen. can be neen mar wan sum or RM: 3 nrrururr Is the m rEMFscnn1kymq\Nm5qr-my «war. s.n.r rnrnmrwm .. met! a may r... uflmnnflly mm: dnuumnl Vfl mum v-mar value agreed base: on the Jom| Fmau stte valuatten made on me dame do roadworks done by m on wmch oemfied amount is to be ssstgned ta Ansya Canslruchnn Based on tne Mtmm Termmzncn Agreement. upon ceruitcanon such sum II to be paid dlreclly te Ansya Cnnslrucnon sumac! to the maxtmum sum 0! RMn444,o9s.eo, and the taatance meteor shall be deducted by PRTMA agatns\ me Relermon Sum under tne Contract The Ptamtm ts mu plecmded from renewing the laid payment [531 Based on me said Mulual Termmaudn Agveement‘ D1 managed in secure Ihrae runner paymanls wmcn atnemne ned la be patd aver by Pm MA to tne Ptatmm Tms mcmdzs me veudwtng - 3) the sum L11 RM270 D60 93 Wmch was Messed dvrecfly In D1 an 14 4 2023 te 21 days Itdm me vssuanoe ov me ccc dated 23 03.2023 (Item 3 cf the Schedme). b) tne sum 0! RMSJJBZ an 25 which I510 he teteased to D1 wtmm 21 days 01 PRIMA‘s tecetpt of the Handmg Over cenmmte (HOG) subgeci to deducuan L71 expenses «at pte-rundtng over detects reztmcallon Walks of cdmptetton at my eutetanumg m INtBMFkM1kyrNz\Nm54zt-nw «mm. s.n.t ...n.mn s. tn... a may t... mn.uty mm: dnuumnl Vfl mum v-max llrl worm Rmsnlmoooao, and Commadlly Murabahah Revolving l:mancmg+ (“CMRF-V I lwonn RMSDOODDD on [5] The Facllllles were gramea lo enable DI In ullllle as Ihzlr womng capnal relalen la a prajecl knuwn as ‘Cadangsn Pembangunan 625 um’: Perumahan Prime 5 11 L/rm Rumah KedaidiAlas Lot PTD E671‘ Muklm um Sungsl Johan Kora nnggl Jollar Daml rmmr awarded by PRIMA Carpolallon Malaysla (‘PR1MA‘) lay me gross developmem value oi Rmsalsnzooo no (“Contract”) [5] ln mum. m through a Deed al Tmnsler of mm: dated 31 al 2019 lrrevocably Irans1erved In me Plalntfl all mania‘ lnleresls. anu rights piyable In nl under me and cnnlvacl sublocl In an. ohllgillonl contalned ln me am Conlracl m Pursuant |0 a Jmrll and Saveril Guarantee and Irldemnw Agreemerll tilled D5 O9 2015 (“Guaranlea 1')‘ the Second Delendanl l‘D2'|, Tlwd Defendant CD3‘), Fcunh Delandant (’D4')l FMI1 Defendant ('D5')‘ Slxth De1endanII‘D and sevenlh l:e1endanl(*D7'), have ]uH'|l|y and severally agrecu la guamnlee all olnsllrlding paymenls our-a CMRF-l F-Icllmss. m lBMF3cMlkymqlNm5~zlmw “Nair ml nuvlhnrwlll .. UIQG M my me mm-y ml. dnuuvlml Vfl nFluNa Wm! works wnrcn aucn amount shall be verified and anprwea by PRVMA («em 4(a) olthe Schedmej arm :2) balance mereano he umrzea by PRIMA A D1 m pay or sewn any payrnenuametecrs recnficazron works dunng aerecmraormy period must «he Cormack. and me aarance m any) snau be rercaua to or wrmrn 21 days lmm ma Issuance allhu Clmflcale ol Makmg Goad nereczs, cerlmed by me consultants and approved by PR1MA [531 N am rnazenau urner me deer on to nenmnaxe me contract and me subsequent assignment cl work dune (roadworks) under me Cuntrad Io Ansyz Conslvuman were Independent churoes made by or am: were no! rrflluenced or arrenaa ny me Fl-Ilntrfl rn lad, (hrs rs m direct areacn olD1‘s resmouve covenant under crause G (4; av scneaulez or Leller u1o«er1,as weH as crauen D (4) or Schedule 2 cl Leller of Offer 2. wmcn m assenoe prombn: D1 hem mnnrnanng me sara conlvumual onuganone mm PRIMA wnhoul the consent nl ma Plamufl Furthermore. the above payments as contained In me Mucuar Termlnallun Agreement prerumoes me Plarnnrrs nghli under me Duu a! Transfer or Rrgnn dalad 31 D1 2019 ru rEMFssnMkymq\Nm5qn-aw «mu. s.n.r mmhnrwm .. met! a may r... unmnamy -mm: dnuumnl Vfl mum v-mar [err] I thus wew me am cl mulual lermlnallurl as a sllaleglc maneuver de ned |u preclude me Plalnmllmm assenmg any clalms on me allocated pmoeeds as dellrleatefl in ma Deed omansler M Rlgms dated :1 m 2019 By suocesslully execul-ng lhls unlalmul ac|lon. DI canrml pvufil lmm Ihelr awn transgvesslons and subsequently nala me Plalnllff accounlaule lar any ensmng mnsequences Al all rrlaherlal llmesl D1 filled to substantiate any IVIIIIVICEI cl‘ me Pl-lnml breachlng obllgallon: or canlravenlng legal pmvlsluns lhal would mrealy contribute to DI‘s alleged losses The lack M ewaenee demorlsllallng me Plalnmfs culpability undelscoves the essential abtenue ul a causal llrlk betwcen me Flalnllrn salon: and ma pulpnned adverse ommmes upenenced by D1 [M] Fmm me «acts I can only wncluded ml lne pwponen mmepieserllallnn ls clezled asan allennougnl ln ordsrlo suslaln some xlnu ulcause olaclmrl agalnsl me Flalrlhfl At all malenal mes, all has lauled la emlbn any shred ol evidence lnal may had felled on me alleged mlsrepveslnlaltcn As alecusml now: me absence el contemporaneous report :1! complain! curlcemlng lne purnoned rnlsvepresenlanon resonates profoundly In me context cl me prevalllrlg uvcumslanoes ‘ms oonsplcuous vma mm quesllnrls zbuul ma timeliness anu slnumy al addlssalng me :2 sm lBMF3sMlkymqlNm5qn-nw «mm. Smnl nuvlhnrwlll .. H... a may he nflnlrullly -mm: dnuuvlml Vfl .nuna ml auegee mIsrsp1BMrIlaIIon.caImng a shauaw aver Ina ued my and weIgm of me cuurIterc\aIm II pronups a reflezmve Inqulry IMO me Ieasons behmd Ina aeIayea Isseman of gnevances po1erIlIaHy suggeshng 2 Iack or Immsdlacy or amgancy In mgNIgh|Ir\g Ihe alleged mIsrepIesema|mn Such Iempmn oonsneranans oonmhule sugnmcanny Io Ina overall ev.aIu.aImn M In veracwy and rehablliry arm: sucusatlons at nand [:21 As such I wouki agvee mm me suhmlssnon nu! ma PIaInInrs counsel mat me Defendants‘ aHegalIorIs based on men pleadmgs are unsubslanhated and do rI:1Iw:vrarIIa(rIa\ The pmem nanue adopted by Ine Dzlendams. ewdem In mew cnurIlen:\aIm, K5 palermy unIerI.Ible. Iackmg Ine necessary loundauon and obviously urIsuslaIIIable I lhevefore alrow end 12 with costs at RM5,uvJo 00 DECISION Isa: Allarconsldenng me ram ann cucummnces presumed If! (he nffldzvll evidence, (he I>IaInn«s app|II:a|IorI (or summary Judgment In end In IS dIsrrIIssed In Its stead. the oeIenaanIs are awarded oondrlmnal leave Ia deient conung-nI upon ma paym=nI U1 RM1‘200Ifl0D so -ma coun wnnm 3: m IEMFklIMkymqINm5~zImw «mm. s.n.I ...n.mn .. UIQG M my me nflmnnflly mm: dnuumnl Vfl .nunn mm cm days Cost cf RM5,00D 00 wt to be paxd by me naenuanns to me Flamml cusxs IS awarded agamst me successful Defendants an the grounds onhe Vack av Dana Ms m (hair cmenee (541 wm. vegavds to and \2, u \s evndem that me F\aImIf1 nas Mfilled me necessary cmena m an o Is r 19 applvcslvon ahgmng with me eslabhshed pnnaupxas ssl lanh m me one at Blndxr Bulldln n and. V. Unllud Mnlayan Banking coggamuon and (supra) Therelare em 12 (prayer 1 5. 2; \s aHowed wnr. casts nl RM5,DOD on payable by me Defendants to me Plamuw 4.: {YUSRIN FAIDZ am vusorr) Judlcml Cnmmlssuonu Hugh com 0! Malaya Kua\a Lumpur Dfled 17" November 202: am »EMFaa«Mkymq\Nm5-qunw mm. Snr1n\nuuhnrwH\I>e LAIQ4 w may he mm-y mm: dnuumnl VII mum Wm! For the Fllmmf Syed Fudzrl hm Halhlm Nhabshw (Nurkmsalul Asmkm Birm Arum Ram wnn mm) Messrs Sldak T2071 Wang & Denms, Level 15‘ Munara Bumwpulra-Cammerce No 11‘ .|a\an Raja Laul‘ 50350 Kuala Lumpul For the Detendanls Romaine blrm Mend Smm Messrs Hadmm Zahar & Rename Shanfludln, Na 174 Jilin Seliawangsa 5‘ Taman Setuawangsa 54200 Kuala Lumpur CASE REFERENCE: 1 Nations! Company for Foretgn Trade v Kayu Raya sun 5na[1sa41 2 MLJ son 2 Es Hvac Sdn Bhd v Muade Asset Builder sun am [2019] 3 MLJ 435 3 Bank Negara Mnlzyswa v Mend Ismail 5 Or: [1992] 1 MM 400 4 Unued trade Avena (M) sun and 5. Ors v Bank Psnaman Mmayma Bha [2u1s12 MLJ as 5 PT Bank Maybank Syinah lndunema v Mmdn»Trade Sdn EM L Ors[2D15]a MLJ 239 6 cempaka Fmanee arm v Ho La: Ymg (tramng as KH Tradmg) & Anor [2005] 3 cu 544 rNxEMFscM1kymq\Nm5-qunw «mm. smm ...m.mm .. LAIQ4 w may he mm-y mm: dnuumnl VII mum Wm! 10 11 I2 13 14 15 16 Emdav Builder Sun and 5. 2 Or: v unwed Malayan Bankrng cmpovanon sun BM [1§93]ACLJ 7. Pengumsan Danahana Nasmnax Bhd vAsas Melrovoman sun Ehd 5 0r5[2UU9]1LNS1E1D Maoney a 0:5 v Peal. Mavwlck Mnchefl 5 Cu &Anav[1967]1 MLJ 57 Lnh Hnldmgs Sdn arm v Peghn Davelupmenl Sun am 5 Anar [19a412 MLJ ms. Abdul Ramm Em Abdm Harmd A Ors v Ferdana Mercham Bankers am: & Ors (200012 MLJ an Srvakumal A/L Valalnaraw Naulu V Ganesan AIL Relanam [M111] 5 MLJ 70. mm Des: Saujana Carpovalmn Sdn BM 1. Or: v James Fauna Chang Yuan :. Another [zooay I cu as: Swarasa Raswah 5. ms v Che Hamzah Che Ismail G: Ors [20:21 I MLJ 473 Samin Gemllnng Makmur Sdn arm v xamaan Megan Pzhnng mm: Makmur [2016] 3 CLJ1. See Thong 8. Anorv Saw aeng Chang [2013] 3 MLJ 235 rNxBMF3cM1kymq\Nm5qn-new «mm. smm ...m.mm .. U... m may he mmuny -mm: dnuumnl Vfl mum Wm! 17 1s 19 20 21 22 23 24 25 26 27 28 may Irmusxrru. Sdn Em A Ors v Arensl-Maflay (M) sun am [2013] 3 MLJ 511 Ma1ayan lnsur:nce(M)Sdr1 Bhd v Asia HaleISdr1 arm [1937] 2 MLJ 15: Bank Negari Mauysu v Mchd 1srua11 [1992] 1 ML! 400 Eng Mee Vang 4. or: v LeK1:humanan[197S]2 MLJ 212 JED Das1ar1ibuHd Sun and v Bung: Kumhung sun Ehd [zone] MLJU 447 Enco Syslems Sdnfihd v Suan H111 Hardware Sdn ans [mom 9 cu 215 Jacobs v Enema Dmhllery Ca new as LT 62. Brmsh and cammunweamr Holdmgs plc v Ouadvex Holdmgs Inc [1939] GB 842 cm Chm Hum v Lae Boo Huck [1970] 1 MLJ 112 Flehirank Lm V S|e1n[1961]3 A11 ER 5&3 Cana Para Mmlng Co v Fzslnedge 30w R sao (1552) Tan W31 Hang [A Mmav Suing Thmugh Guardian Ad Lllam Ana NextFv1end cnuang Ym E) .1. 01s v Malaysm Airlines am And Omer Appea1s[2o1s]9 CLJ 425 37 rN1EMF3sM1kymq[NmS~z1-nw «mm. s.n.1...m.rw111... .1... 1: my 1... mm-y mm: dnuumnl Vfl .m1a WM 29 Anna Rama. hm Arman v Bank Negm Malaysm (201519 MU szn LEGISLATION REFERENCE: 1 order 14 :1 5. r9. 5 :4 aims was u1CourI2D12 2 Omar Ia as nlme Rules olcoun 2512 rNxEMFscM1kymq\Nm5-qunw «mm. smm ...m.mm .. LAIQ4 w may he mm-y mm: dnuumnl VII mum Wm! 11 la] we a seam letter M cflar dated 20 ca 2020 (‘Lunar o10fler2“)and at the raquesl al In, lne Plalntlll nan appreved a commoduy Mumbahah Term rinanelng-l racllny anlounllng lo RM1 ,0ou,0uo cu (“CMFT—l Faclllty“) to D1 lot me pulpoee cl llnanelng me womng capnal needs relalee to me buslness Vlde a letter 01 changes aaled 05 07 2020 rlener ol Changes“) the salt: sum lmdev cMl=r-l Facllny was veduced Io me sum ol RM500_0oo on [91 Based an Leller oicffer 2‘ a second Facility Agreement was executed an 2: 07 2020 (“Facility Agreement 2“) [10] we a Jnlnt and several Guarantee and Indemnity Agreement dates 05 as 201S(“GuivarlteI 2"l. D2‘ D3, D4 05 ns ElghtDedanflanl (Del, ana Nlr\|h oelenaant lug) nave jolmly and severally agreea to guarantee all oulsfandlng payments or me CMTF-l Facillty ml The flcllmel guaranteed by D2 untll no la amllned below — l Guananmrs Type of FaI:Hlty(les| Guaranteed CMRF-I Facllmes and CMTF—I Faclllly CMRF~I Facllltles Ind CMTF-l Faclllly m lEMF5sltMkymq\Nm5~zunw «mu. s.n.l nuvlhnrwm .. med M my me nflnlnnflly ml. dnuuvlml Vfl .nuua Wm! w) D4 ' CMRF»\Fac esand cmrmraamy D5 CMRF4 Facllmes and CMTF-I Fauury us VT CMRF-x Facnlmes D5 cumzy Faamy vm) D9 CMTF4 Facmy [12] It Is not msputed max me Plamml provided me Facllmes to D1 m Mne wwm we terms 01 Ih: menlxoned ssumfy documents and lhal D1 has zaenemeu from them [111 Eased on a Mutual Termination Aqveemanl dated 18 us 2022 (‘Mutual mmmanan Agveemanm vnmm am D1 mululuy Igvaed lo Ievmmnle ma Conlraci sumecl in me terms uumm wumn me Mumax Yennlnallon Agreement u \s ms onntenlrun men he consuucuan was ac 94°/. completmn [14] Based on ms Mutual mmmanm Agreement and me facl that m subsaquermy hflsd m same lhe mstallmenl. me Fucllmes wm wermmated was n Nam or Demand dated 0| 09 2022 (“Tevmmahon Nome‘) M at m xBMPacnMkymq\Nm5qunw «mm. Snr1I\nmhnrwH\I>e U... m may he mmuny -mm: dnuamnl VI mum Wm! so as 2022, me vauawmg sums were outstanding anu payame by me Deienaams, which was to he sewed wmmn 14 days from the Terminanan Nmice - ) A ’ ' 1) ' D1unnT$ RM1,8SD.34l 54 nnderme Facmues ' xi) {T RM5 [151 As at 03 01 2023 me Plavmfl has cemfied mac Delendanls are sml wtmly and uamauy indebted to me Plamun is venom - Delendanus) ' Amount cenmen as at 03 01.20:: T) m unlvl us RM1 521 sec 73 undar mg Facumes up D7 RMI,293‘317 59 undefme cmtm Facmhes nu)’ as a. n9 RM52 51314 under he CMTF4 Facllxly us] As me De1and:n(srlI\Id |o name me nld Imwnt‘ lhu Pnamnmnmuxea «ms sun on 24 02 2023 of which Statement av mam was subsequently amended on 03.03 2023 m xBMPacnMkymq\Nm5qunw «mm. Snr1I\nmhnrwH\I>e U... m may he mmuny -mm: dnuamnl VI mum Wm! [11] The Dslendams Ned mew Derence and coumeruaim on 25 03 2023, In wmcn may held me Plaxrmfl respansvhle lot losses mcurrea unaer men cnnnan wnh PRTMA Yhmuuh (haw Caumerdavm the Defendants nought. mler aim, me lnllawwng mheis - a) lhe sum ai RM3,suo.ooa on and n) Inleveslnifl/2 on me amount 07 RMCLBOGDDD no lrom me aaxe me counlerclawm umu mu sememem THE APPLICATIONS [11] In encl 10, ms Malnmf prayed luv 3 firm Audqment in be entered as (allows - :1 D1 D2 D3 D4.D5&DG(o zaemmyand severauynablelcrme couawmg sums - \) lhe sum of RM|.293.31759 as 303012023 under me CMRF-I Facxlmas‘ rNxEMFscM1kymq\Nm5-qunw «mm. smm ...m.mm .. U... w my me mmuny mm: dnuumnl Vfl mum Wm! up the sum al RM52e‘5I: 14 u :1 0301 2023 undev me cwr-v Facmly. by D7 to D1 pmuy and sevevzfly name lav me sum ev Rm 293,311 59 as at as 01202: under the CMRF4 Facilities‘ 5) us 5. D9 m be uamuy and Ievarafly hable lot ma sum nl RM528 613 14 as an 03 01 2oz: under me CMTF~\ Facility‘ a) late paymanl charges (Tawdh) n: me me cc 1% pet annum on each aeva-man amount «om M m 2023 um Judgmem, and 2) Val: payment crmges (Taxman; a( me prevmhng daily uvemlghl uxumuc Interbank Money Mum Rnla calcmaled an we Judgment sum lrom me date at Juagmem umil the dale M mu reznzauon [19] run encl \2. me F\aInml prayed vow me Delendanw Cuuruerclawm dated 23 us 2023 be slvuck cut and the De1endanls‘c|:vm under me coumemtaun agamil me Plnmlvlllo be dlsrmssed wim cash rN»EMF3sM1kymq\Nm5~zn-new «mu. sun-1 nmhnrwm .. med m my me DVWMIWY mm: dnuumnl Vfl mum Wm! couussus CONYEMTIONS Enc|olIlru10 — SulvllruryJudgmnnt [zn] l=lalmllrs Ieamefl counsel Syed Fadzll am Hashlm Alhabshl (Nu! Anlsllul Ashlkln Emil Abdul Ram mm mm) conlenae mal applylrlg me use cl uecloml Comgny for Fnnlgn man v Klyu up sun Bhd [1934] 2 MLJ 300, the Flalrlml has lulnllea all mree requlremenls fbro Mollhe Rules le where me Defendants have erllelad appearance on la la: 2:123. me sulemenmlclzlm has bean served on 07 oz 2:123‘ am me depcnenl la the Flalnuffs Amaavlz ln Suppon ualea as as 2023 has almmea and vellly behave mal mere I5 no defence la me Plalrmffs clalm The amen therefore nulls lo me Detenaams to sa|lify me Cuufl my ludgmem snauld nut have been glverl agalnsl them [21] We arguments presenlea by me Defendants‘ counsel Rohanle blrm Mona smm, ln nppaslllan |n me summary judgment appllcallon In and lo and the smklng cm appl-callan H1 erll:J 12 are menllcal Essenually. me Derenaanls assert man we olnslanalnp loan balance I! cnnilderahly less lrun lhe amoum snughl by me Plilrlllfl l e max lt maulu be m me sum cl m m lBMFkM1kymqlNm5-qunw “Nair s.n.l nuvlhnrwm .. LAIQ4 w may he mm-y mm: dnuuvlnnl VII .mm vtmxl

Tika 2.6.0 & Pytesseract-0.3.10

WA-45-20-11/2021

PENDAKWA RAYA Pendakwa Raya [Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] TERTUDUH 1. ) MURUKAN A/L RAMAKRISHNAN 2. ) RAJA SEKAR SELVAM

Seksyen 39B ADB 1852 – Akhir kes Pendakwaan – OKT dilepas & dibebaskan - Cannabis 493.61 gram, Methaphetamine 189.84 gram, Heroin 6.63 gram dan Monoacetylmorphine 0.93 gram – dadah dijumpai di rumah – OKT ditahan di tempat lain – Sejurus ditahan OKT membawa polis ke rumah beliau dimana dadah dijumpai

21/11/2023

YA Dato' Ahmad Bin Bache

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1 DALAM MAHKAMAH RAYUAN MALAYSIA RAYUAN JENAYAH NO.: TAHUN 2023 DI ANTARA PENDAKWA RAYA … PERAYU DAN 1. MURUKAN A/L RAMAKRISHNAN (NO. K/P: 831031-05-5619) 2. RAJA SEKAR SELVAM (NO. PASPORT: S8531729) ... RESPONDEN-RESPONDEN [Dalam Perkara Mahkamah Tinggi Malaya di Wilayah Persekutuan Kuala Lumpur Dalam Perkara Perbicaraan Jenayah No: WA-45A-83-11/2021 dan WA-45-20-11/2021 DI ANTARA PENDAKWA RAYA DAN MURUKAN A/L RAMAKRISHNAN (NO. K/P: 831031-05-5619) RAJA SEKAR SELVAM (NO. PASPORT: S8531729)] 21/11/2023 16:06:29 WA-45-20-11/2021 Kand. 17 S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 ALASAN PENGHAKIMAN A. PENDAHULUAN [1] Kedua-dua Tertuduh (OKT 1 dan OKT 2) telah dituduh bersama- sama di Mahkamah ini, bagi maksud mencapai niat bersama dengan dua (2) pertuduhan mengedar dadah berbahaya iaitu Cannabis seberat 493.61 gram dan Methaphetamine seberat 189.84 gram dan dua (2) pertuduhan memiliki dadah berbahaya iaitu Heroin seberat 6.63 gram dan Monoacetylmorphine seberat 0.93 gram. [2] Di akhir kes Pendakwaan, setelah mendengar hujahan kedua-dua pihak, Mahkamah telah memutuskan bahawa di atas penilaian maksima, Pendakwaan telah gagal membuktikan satu kes prima facie terhadap kedua-dua Tertuduh. Justeru kedua-dua Tertuduh telah dilepas dan dibebaskan tanpa dipanggil untuk membela diri. [3] Tidak berpuas hati dengan keputusan tersebut, Pendakwa Raya telah memfailkan rayuan ke Mahkamah Rayuan. [4] Ini merupakan alasan-alasan terhadap keputusan ini. Antara lain adalah kegagalan Pendakwaan membuktikan intipati-intipati pertuduhan dengan hanya memanggil tiga (3) orang saksi sahaja, sedangkan Pendakwaan akui terdapat dua (2) orang saksi lagi yang memainkan peranan yang penting di dalam kes ini. Mereka ialah Hariharan Selvam dan Suresh @ Fire yang mana kegagalan memanggil kedua-dua mereka untuk memberi keterangan telah S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 menyebabkan wujudnya kelompangan besar di dalam kes Pendakwaan dan sekaligus intipati-intipati kesalahan gagal dibuktikan. B. FAKTA KES PENDAKWAAN [5] Berdasarkan maklumat, pada 25.8.2020 jam Iebih kurang 3:00 petang, Pengadu, Inspektor Prabu (SP2) dan anggotanya telah menahan seorang lelaki (suspek) warganegara India di hadapan lif aras B2 Kompleks Mutiara Jalan Ipoh 51200 Kuala Lumpur bernama Hariharan Selvam, dengan sejumlah dadah dijumpai bersamanya. [6] Seterusnya pada pukul 3:10 petang dengan dipandu arah oleh suspek Hariharan Selvam (Hariharan), dengan menggunakan kad akses yang dirampas darinya, Hariharan telah membawa SP2 dan anggota serbuan ke alamat unit/rumah TKT 16-4 Kompleks Mutiara Jalan Ipoh 51200 Kuala Lumpur (kondo tersebut). [7] Sesampainya di unit tersebut, SP2 dapati pintu kayu dan grill tertutup dan berkunci. SP2 bersama pasukan telah umpil pintu grill besi dan tendang pintu kayu rumah sebanyak dua (2) kali sehingga terbuka. [8] SP2 dengan suspek Hariharan Selvam bersama D/Sjn Lian bersama pasukan serbuan telah masuk ke dalam unit/rumah tersebut dan ternampak dua lelaki India iaitu OKT 1 dan OKT 2 sedang duduk di atas lantai Bilik Utama sebelah kanan unit/rumah tersebut. OKT 1 S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 telah bangun dan cuba untuk menutup pintu Bilik Utama tersebut tetapi SP2 bersama D/Sjn Lian berjaya menangkap mereka berdua. [9] SP2 memperkenalkan diri kepada kedua-dua OKT dan terlihat beberapa bungkusan plastik disyaki berisi dadah berbahaya berada di atas katil dan di atas lantai di dalam Bilik Utama tersebut. [10] Seterusnya SP2 telah menjalankan pemeriksaan atas katil Bilik Utama tersebut dan telah menjumpai: (a) SATU (1) PLASTIK LUTSINAR BESAR BERISI BAHAN- BAHAN DISYAKI DADAH JENIS METHAMPHETAMINE (AB: 255 GRAM). (P8 (a)) (b) DUA (2) KETULAN MAMPAT DAUN-DAUN KERING DISYAKI DADAH JENIS GANJA YANG DIBALUT DENGAN PLASTIK LUTSINAR (AB: 478 GRAM). (P8 (B1-2)) (c) TIGA (3) PLASTIK LUTSINAR BERISI BAHAN-BAHAN DISYAKI DADAH JENIS HEROIN (AB: 175 GRAM). (P8 (C1- 3)) (d) SATU (1) BUNGKUSAN PLASTIK LUTSINAR BESAR DIDALAMNYA ADA PEKET-PEKET PLASTIK LUTSINAR KECIL YANG KOSONG. (e) SERANGKAI KUNCI ADA LAPAN (8) ANAK KUNCI. S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 (f) SATU (1) KAD AKSES BERTULIS KOMPLEKS MUTIARA. (g) SATU (1) TELEFON BIMBIT JENAMA SONY DISYAKI MILIK SUSPEK NO. 3. (h) SATU (1) TELEFON BIMBIT JENAMA VIVO DISYAKI MILIK SUSPEK NO. 2. (i) SATU (1) TELEFON BIMBIT JENAMA OPPO DISYAKI MILIK SUSPEK NO. 2. (j) SATU (1) TELEFON BIMBIT JENAMA ZTE DISYAKI MILIK SUSPEK NO. 2. (k) SATU (1) TELEFON BIMBIT JENAMA IPHONE DISYAKI MILIK SUSPEK NO. 1. (l) SATU (1) DOMPET KECIL DI DALAMNYA ADA KAD PENGENALAN ATAS PENAMA MURUKAN A/L RAMAKRISHNAN, NO. K/P: 831031-05-5619, SATU (1) KAD BONUS LINK DAN SATU (1) KAD ATM HONG LEONG BANK NO. SIRI: 5399 7400 0226 4074. [11] SP2 seterusnya telah membuat pemeriksaan lanjut di atas lantai bilik berkenaan dan telah menjumpai: S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 (a) DUA (2) KETULAN MAMPAT DAUN-DAUN KERING DISYAKI DADAH JENIS GANJA YANG DIBALUT DENGAN PLASTIK LUTSINAR (AB: 47 GRAM). (P12 (a-b)) (b) TIGA (3) PEKET PLASTIK LUTSINAR KECIL BERISI BAHAN- BAHAN DISYAKI DADAH JENIS HEROIN (AB: 21 GRAM). (P13 (1-3)) (c) TIGA (3) PEKET PLASTIK LUTSINAR BERISI BAHAN- BAHAN DISYAKI DADAH JENIS METHAMPHETAMINE (AB: 20 GRAM). (P14 (1-3)) (d) SATU (1) ALAT TIMBANG JENAMA CAMRY. (e) SATU (1) SUDU ALUMINIUM. (f) SATU (1) ALAT IMPULSE SEALER TYPE PFS-200. (P23) (g) SATU (1) BUNGKUSAN PLASTIK LUTSINAR BESAR DI DALAMNYA ADA SATU (1) IKATAN GELANG GETAH PLASTIK-PLASTIK KOSONG. [12] SP2 turut merampas dari dalam Bilik Utama tersebut, sehelai baju berwarna hitam bertulis RSS Security disyaki milik OKT 1. [13] Pemeriksaan SP2 ke atas bilik no. 2 sebelah kiri rumah tidak menjumpai apa-apa barang salah tetapi ada membuat rampasan sehelai baju lengan panjang jenama Garage warna kelabu disyaki S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 milik Hariharan Selvam dan satu (1) pasport atas penama suspek Hariharan Selvam, no. pasport: U4215019. [14] Pemeriksaan SP2 ke atas bilik no. 3 sebelah kanan rumah, tidak menjumpai apa-apa barang salah tetapi SP2 ada membuat rampasan sehelai kain pelikat warna coklat disyaki milik suspek OKT 2 dan satu (1) pasport atas penama Raja Sekar Selvam (OKT 2), no. pasport: S8531729. [15] Pemeriksaan lanjut di bahagian lain rumah tidak menjumpai apa-apa barang salah. SP2 telah merampas kesemua barang kes dan telah menangkap ketiga-tiga mereka termasuk Hariharan Selvam. Seterusnya SP2 telah membawa barang kes dan ketiga-tiga mereka ke Jabatan Siasatan Jenayah Narkotik, Ibu Pejabat Polis Kontinjen Kuala Lumpur untuk tindakan selanjutnya. [16] Pada 1.9.2020 Pegawai Penyiasat iaitu SP3 telah menghantar barang-barang disyaki dadah tersebut ke makmal kimia dan telah diterima oleh Ahli Kimia, SP1. Hasil analisa Ahli Kimia (SP1) terhadap kesemua barang kes tersebut telah mendapati ianya adalah dadah-dadah berbahaya dengan jenis-jenis seperti berikut: (a) Cannabis seberat 493.61 gram; (b) Methamphetamine seberat 189.84 gram; (c) Heroin seberat 6.63 gram; (d) Monoacetylmorphines seberat 0.93 gram. S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 C. ELEMEN-ELEMEN PERTUDUHAN [17] Elemen-elemen yang perlu dibuktikan secara prima facie dalam kes di bawah Seksyen 39B (1) (a) Akta Dadah Berbahaya 1952 terhadap Tertuduh-Tertuduh (OKT 1 dan OKT 2) ialah: (i) Dadah-dadah tersebut berada di dalam milikan Tertuduh- Tertuduh; (ii) Dadah-dadah tersebut adalah dadah berbahaya; (iii) OKT mengedar dadah-dadah tersebut. [18] Dan untuk pertuduhan-pertuduhan di bahawa Seksyen 12 (2) Akta Dadah Berbahaya 1952 elemen-elemen yang perlu dibuktikan secara prima facie adalah: (i) Dadah-dadah tersebut berada di dalam milikan Tertuduh; (ii) Dadah-dadah tersebut adalah dadah berbahaya. D. PERTUDUHAN (a) PERTUDUHAN PERTAMA (WA-45A-83-11/2021) Bahawa kamu bersama-sama pada 25.8.2020 jam Iebih kurang 3:10 petang bertempat di Tingkat 16-4 Kompleks Mutiara Jalan Ipoh, di S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 dalam Daerah Sentul, dalam Wilayah Persekutuan Kuala Lumpur bagi mencapai niat bersama telah mengedar dadah berbahaya jenis Cannabis [berat bersih: 493.61 gram], dan dengan itu kamu telah melakukan satu kesalahan di bawah Seksyen 39B (1) (a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39B (2) Akta yang sama dan dibaca bersama Seksyen 34 Kanun Keseksaan. (b) PERTUDUHAN KEDUA (WA-45A-83-1112021) Bahawa kamu bersama-sama pada 25.8.2020 jam Iebih kurang 3:10 petang bertempat di Tingkat 16-4 Kompleks Mutiara Jalan Ipoh, di dalam Daerah Sentul, dalam Wilayah Persekutuan Kuala Lumpur bagi mencapai niat bersama telah mengedar dadah berbahaya jenis Methamphetamine [berat bersih: 189.84 gram], dan dengan itu kamu telah melakukan satu kesalahan di bawah Seksyen 39B (1) (a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39B (2) Akta yang sama dan dibaca bersama Seksyen 34 Kanun Keseksaan. (c) PERTUDUHAN KETIGA (WA-45A-83-11/2021) Bahawa kamu bersama-sama pada 25.8.2020 jam Iebih kurang 3:10 petang bertempat di Tingkat 16-4 Kompleks Mutiara Jalan Ipoh, di dalam Daerah Sentul, dalam Wilayah Persekutuan Kuala Lumpur bagi mencapai niat bersama telah memiliki dadah berbahaya jenis Heroin [berat bersih: 6.63 gram], dan dengan itu kamu telah melakukan satu kesalahan di bawah Seksyen 12 (2) Akta Dadah Berbahaya 1952 S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 dan boleh dihukum di bawah Seksyen 39A (2) Akta yang sama dan dibaca bersama Seksyen 34 Kanun Keseksaan. (d) PERTUDUHAN KEEMPAT (WA-45-20-11/2021) Bahawa kamu bersama-sama pada 25.8.2020 jam lebih kurang 3:10 petang bertempat di Tingkat 16-4 Kompleks Mutiara Jalan Ipoh, di dalam Daerah Sentul, dalam Wilayah Persekutuan Kuala Lumpur bagi mencapai niat bersama telah memiliki dadah berbahaya jenis Monoacetylmorphines [berat bersih: 0.93 gram], dan dengan itu kamu telah melakukan satu kesalahan di bawah Seksyen 12 (2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 12 (3) Akta yang sama dan dibaca bersama Seksyen 34 Kanun Keseksaan. E. BEBAN PEMBUKTIAN [19] Tanggungjawab Pendakwaan di peringkat kes Pendakwaan adalah untuk menunjukkan bahawa di atas “maximum evaluation” satu kes prima facie telah berjaya dibuktikan. Seksyen 180 Kanun Acara Jenayah berbunyi seperti berikut: “Procedure after conclusion of case for prosecution (1) When the case for the prosecution is concluded, the Court shall consider whether the prosecution has made out a prima facie case against the accused. S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 (2) If the Court finds that the prosecution has not made out a prima facie case against the accused, the Court shall record an order of acquittal. (3) If the Court finds that a prima facie case has been made out against the accused on the offence charged the Court shall call upon the accused to enter on his defence.” [20] Di dalam kes PP v. Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457, Mahkamah Persekutuan memutuskan seperti berikut: “(i) At the close of the prosecution’s case, subject the evidence led by the prosecution in its totality to a maximum evaluation. Carefully scrutinize the credibility of each of the prosecution’s witnesses. Take into account all reasonable inferences that may be drawn from that evidence. If the evidence admits of two or more inferences, then draw the inference that is most favourable to the accused; (ii) ask yourself the question: If I now call upon the accused to make his defence and he elects to remain silent am I prepared to convict him on the evidence now before me? If the anwer to that question is “Yes”, then a prima facie case has been made out and the defence should be called. If the answer is “No” then, a prima facie case has not been made out and the accused should be acquitted; S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 (iii) after the defence is called, if the accused elects to remain silent, then convict; (iv) after defence is called, the accused elects to give evidence, then go through the steps out in Mat v. Public Prosecutor [1963] 1 LNS 82; [1963] MLJ 263.” [21] Mahkamah telah meneliti segala keterangan yang ada dan hujahan kedua-dua pihak iaitu dari Timbalan Pendakwa Raya dan kedua-dua Peguambela Tertuduh-Tertuduh. Pihak Pendakwaan menghujahkan bahawa di atas “maximum evaluation” kesemua intipati-intipati kesalahan telah berjaya dibuktikan. Justeru, satu kes prima facie telah berjaya dibuktikan dan Tertuduh perlu dipanggil untuk membela diri. Pihak Pembelaan menghujahkan sebaliknya dan menghujahkan kedua-dua OKT perlu dilepas dan dibebaskan tanpa dipanggil membela diri, memandangkan satu kes prima facie telah gagal dibuktikan oleh pihak Pendakwaan. [22] Manakala, Pembelaan tidak mempertikaikan bahawa dadah-dadah tersebut adalah seperti pertuduhan-pertuduhan namun dari awal lagi mereka telah tidak bersetuju bahawa milikan telah berjaya dibuktikan Pendakwaan. Ini adalah kerana Pendakwa Raya gagal membuktikan bahawa dadah-dadah tersebut adalah di dalam milikan ekslusif kedua-dua Tertuduh memandangkan Pendakwa Raya gagal menangkis kemungkinan orang-orang lain juga mempunyai akses kepada dadah-dadah tersebut, khususnya Hariharan Selvam yang turut ditangkap dan dituduh bersama di Mahkamah Majistret di S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 bawah Seksyen 39B Akta Dadah Berbahaya. Hariharan Selvam (Hariharan) ini walau bagaimanapun, tidak dituduh di Mahkamah Tinggi dan tidak pula dipanggil untuk memberi keterangan. Seorang lagi suspek ialah “Fire” atau nama sebenarnya adalah Suresh a/l Sokinggam yang turut tidak dipanggil untuk memberi keterangan yang menyebabkan wujudnya kelompangan di dalam kes Pendakwaan. Ini akan dibincangkan kemudian. F. UNDANG-UNDANG MENGENAI MILIKAN DAN PENGETAHUAN [23] Di dalam kes PP v. Danish Madhavan [2009] 2 CLJ 209, Mahkamah Persekutuan telah menafsirkan milikan seperti berikut: “[18] Thomson J, in Chan Pean Leon v. Public Prosecutor [1956] 1 LNS 17, said that “possession” for the purposes of criminal law involves possession itself - which some authorities term “custody” or "control" - and knowledge of the nature of the thing possessed. As to possession itself he cited the following definition in Stephen's Digest (9th edn, p. 304), in which the exclusive element mentioned by Taylor J appears: A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need. S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 [19] Once the elements needed to constitute possession are established, including the element of exclusive power to deal, then what is established is possession, not exclusive possession. So much for exclusive possession.” [24] Di dalam kes Chan Pean Leon v. Public Prosecutor [1956] 1 LNS 17 yang dirujuk di dalam kes PP v. Denish Madhavan (supra), Thompson J menyatakan seperti berikut: “Possession” itself as regards the criminal law is described as follows in Stephen's Digest (9th Ed), p 304): “A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need.” To put it otherwise, there is a physical element and a mental element which must both be present before possession is made out. The accused must not only be so situated that he can deal with the thing as if it belonged to him, for example have it in his pocket or have it lying in front of him on a table. It must also be shewn that he had the intention of dealing with it as if it belonged to him should he see any occasion to do so, in other words, that he had some animus possidendi. Intention is a matter of fact which in the nature of things cannot be proved by direct evidence. It can only be proved by S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 inference from the surrounding circumstances. Whether these surrounding circumstances make out such intention is a question of fact in each individualcase. If a watch is in my pocket then in the absence of anything else the inference will be clear that I intend to deal with it as if it were my own and accordingly I am in possession of it. On the other hand, if it is lying on a table in a room in which I am but which is also frequently used by other people then the mere fact that I am in physical proximity to it does not give rise to the inference that I intend to deal with it as if it belonged to me. There must be some evidence that I am doing or having done something with it that shews such an intention. Or it must be clear that the circumstances in which it is found shew such an intention. It may be found in a locked room to which I hold the key or it may be found in a drawer mixed up with my own belongings or it may be found, as occurred in a recent case, in a box under my bed. The possible circumstances cannot be set out exhaustively and it is impossible to lay down any general rule on the point. But there must be something in the evidence to satisfy the court that the person who is physically in a position to deal with the thing as his own had the intention of doing so.” Based on the above decisions, the Prosecution must discharge the duty to prove that the Accused had custody or control and knowledge of the drugs. (Mens rea possession)” [25] Mengenai pengetahuan, di dalam kes yang sama Mahkamah Persekutuan menyatakan: S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 “[16] In the case of Chan Pean Leon v. PP [1956] 1 MLJ 237, Thomson J held at Pg 239: “Here again knowledge cannot be proved by direct evidence, it can only be proved by inference from the surrounding circumstances. Again the possible variety of circumstances which will support such an inference is infinite. There may be something in the accused's behaviour that shews knowledge, or the nature of the thing may be so obvious that it is possible to say “he must have known what it was” or, again in cases under the Dangerous Drugs Ordinance, there may be a statutory presumption which fills a gap in the evidence.” [26] Di dalam kes di hadapan Mahkamah ini, kedua-dua OKT tidak dilihat menyentuh atau sedang membungkus dadah-dadah berkenaan tetapi dadah-dadah adalah dilihat hanya berkedudukan berhampiran (close proximity) dengan kedudukan Tertuduh-Tertuduh. Namun, ianya tidak semestinya membuktikan dadah-dadah itu kepunyaan OKT-OKT. [27] Di dalam kes Low Thiam Teck v. PP [2014] 1 LNS 1104, Mahkamah Rayuan memutuskan: “Physical proximity to the drugs per se is insufficient to prove possession without proof of knowledge.” S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 Mere proximity to the bag containing the drug cannot by any stretch of imagination be equated with custody or control. It must further be shown that the appellant either had physical care of the bag or had charge or dominion over the bag. At the highest, the evidence merely showed that perhaps the appellant had some mementory custody of the bags together with the Second OKT. In such circumstances there was no possession (Warner v. Metropolitan Police Commissioner [1969] 2 AC 256)” (c) the Court of Appeal in the case of Roslan Hanapi v. PP [2015] 6 CLJ 464 held: “…... evidence of close proximity to the drugs was neither here nor there, given the fact that the store was accessibles to family members of the Second Accussed and even to the public.” [28] Di dalam kes PP v. Mok Kar Poh [2001] 5 CLJ 206, Mahkamah memutuskan: “there is to be both a physical and mental element before possession can be made out,” and further held “the mere fact that the said offending article (ie, the drug) was in physical proximity to the accused does not ipso facto give rise to the inference that the accused intends to deal with it as if it belonged to him.” S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 G. PENGANALISAAN DAN DAPATAN MAHKAMAH [29] Adalah menjadi kes Pendakwaan bahawa dadah-dadah tersebut dijumpai di dalam unit kondo di dalam Bilik Utama bersama-sama kedua-dua OKT. Yang membawa anggota serbuan yang diketuai oleh SP2 (Inspektor Prabha) ke unit kondo tersebut adalah Hariharan (seorang suspek). Menurut SP2, terdapat beberapa bungkusan plastik disyaki mengandungi dadah dilihat berada di atas katil dan lantai di dalam Bilik Utama tersebut ketika beliau dan anggota serbuan memecah masuk ke dalam rumah/unit tersebut. Tidak pula SP2 melihat kedua-dua OKT sedang memegang atau memasukkan dadah-dadah tersebut ke dalam plastik-plastik berkenaan. Mahkamah telah tidak mengambil kira apa-apa maklumat yang diberikan Hariharan kepada SP2 bahawa kononnya OKT 1 terlibat dengan dadah-dadah ini, kerana ini adalah dengar cakap kerana Hariharan tidak hadir untuk memberi keterangan, “self serving” dan amat memprejudiskan OKT 1. Setelah mengambil kira keseluruhan keterangan-keterangan yang telah dikemukakan, serta mengambil kira hujahan kedua-dua pihak, Mahkamah telah memutuskan seperti di bawah ini: Pendakwaan gagal membuktikan bahawa OKT-OKT mempunyai milikan ekslusif terhadap dadah-dadah tersebut [30] Perlu ditekankan di sini bahawa adalah menjadi tanggung jawab pihak Pendakwaan untuk membuktikan bahawa OKT-OKT mempunyai milikan ekslusif terhadap dadah-dadah tersebut. Di S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 dalam ertikata lain Pendakwaan perlu membuktikan bahawa orang lain tidak mempunyai akses kepada dadah-dadah tersebut dan beban ini terletak di atas bahu Pendakwa Raya dan bukan di atas Tertuduh sepertimana diputuskan oleh Mahkamah-Mahkamah atasan seperti berikut: [31] Di dalam kes Husin bin Sitorus v. PP [2012] 7 CLJ 205, Mahkamah Rayuan memutuskan: “[15] There is a welter of authoritative precedents which have held that for possession to be established, accessibility by others to the place where the drugs are found should be excluded by evidence by the prosecution (Pendakwa Raya v. Kang Ho Soh [1991] 3 CLJ 2914; [1992] 1 MLJ 360, Public Prosecutor v. Tang Chew Weng [1969] 1 LNS 141; [1969] 2 MLJ 17). The onus is not on the defence to prove possibility of access by others but on the prosecution to exclude such possibility and the issue must be answered in favour of the appellant if there were more than one way in which the evidence adduced by the prosecution might be viewed such as in the present case, implicating the appellant or the other persons who were present in the boat. (Abdullah Zawawi bin Yusoff v. Public Prosecutor [1993] 4 CLJ 1; [1993] 3 MLJ 1). In other words, exclusivity of custody and control of the drugs ought to be established by the prosecution.” [32] Di dalam kes Ang Kian Chai v. PP & Anor [2012] 4 MLRA 456, Mahkamah Rayuan memutuskan: S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 “[28] The factual matrix showed that the appellant was not alone in the said house when SP4 and his police party gained access inside the said house. Chen Jing and a child of about four years old were also there - inside the said house. Yet, the learned JC invoked the presumption under s. 37(d) of the DDA against the appellant and found him to be in possession of the raw opium. In our judgment, before the learned JC could invoke s. 37 (d) of the DDA against the appellant the prosecution ought to have excluded Chen Jing from having custody or control of the raw opium at the material time. This exclusion can only be achieved if the prosecution were to call Chen Jing as a witness or if the prosecution were to tender the s. 112 statement of Chen Jing. Alas, all these were not done. The Federal Court in Ibrahim Mohamad & Anor v. PP [2011] 4 CLJ 113 held that the non-tendering of the statement of the owner of the vehicle or the failure of the prosecution to call the owner of the vehicle as a witness raised the pertinent question of who was in actual control of the vehicle immediately prior to the date of arrest. The Federal Court also held that it was the duty of the prosecution to exclude the possibility that other individuals could not have had custody or control of the vehicle immediately prior to the date of arrest. Now, applying the principles in that case to the present appeal at hand, we categorically say that the prosecution had failed to exclude the possibilities that Chen Jing or even Chen Jing’s husband (Goo Aik Hiang) or even Khoo Teck Huat whose name was on the water bill of the said house could have had custody or control or access to the raw opium. S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 [29] It is trite law that the onus is not on the appellant to prove the possibility of access to the raw opium by others but rather that onus falls on the prosecution to prove to the court that others could not possibly had access to the raw opium. To put it in another way, it is the duty of the prosecution to exclude such possibility and to prove that the appellant had exclusive possession of the raw opium (Abdullah Zawawi Yusoff v. Pendakwa Raya [1993] 4 CLJ 1; [1993] 3 MLJ 1 SC).” [33] Di dalam kes Abdullah Zawawi Yusuff v. Pendakwa Raya [1993] 4 CLJ 1, Mahkamah Agung memutuskan: “[14] Thus, to sum up, the common usage, plain, natural and ordinary meaning of “exclusive” is “excluding or to exclude all others; not shared or divided”. In the context of drugs possession, “exclusive possession” can be construed to mean that the place where the drugs are found must be “exclusive” to the accused... ........ [16] There is a plethora of cases decided by the courts on this point. The principle as discernible from those cases is simply these: there is a burden of proof on the prosecution to exclude the possibility of access by others to the place where the drugs are found. A failure by the prosecution to establish this would result in an acquittal of the accused; for example: (i) Public Prosecutor v. Chan Peng Fatt [2000] 1 MLJ 179. The court found that the accused did not have exclusivity to the attic S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 where the drugs were found; therefore, he was acquitted and discharged. (ii) Public Prosecutor v. Md Alim bin Samad [1998] 1 MLJ 260. The rooms where the drugs were found were accessible by different people frequenting the house. The court held that knowledge alone not enough to establish control. (iii) Lee Chee Meng v. Public Prosecutor [1992] 1 MLJ 322. There were access by third parties to the premises, thus exclusivity of use of the premises had not been proved and the accused was acquitted. (iv) Pang Chee Meng v. Public Prosecutor [1992] 1 MLJ 137. The accused was acquitted even though the drugs were found in his room, but, as he shared the room with several others, the prosecution had not proved exclusive use of the room or exclusive custody or control of the drugs. (v) Public Prosecutor v. Basri bin Salihin [1994] 2 MLJ 476. The bin where the drugs were found was accessible to the general public and the accused had no exclusive control over it. Therefore, the accused was acquitted and discharged.” [34] Di dalam kes ini, dari keterangan-keterangan yang terkumpul, bukan sahaja Pendakwaan gagal memastikan orang lain tidak mempunyai akses kepada dadah-dadah tersebut melainkan kedua-dua Tertuduh (OKT 1 dan OKT 2), malahan kemungkinan orang yang memiliki S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 dadah tersebut, ialah Hariharan Selvam sendiri iaitu suspek yang membawa pasukan serbuan ke unit itu, yang memiliki kad Access ke unit itu. Adalah tidak dipertikaikan bahawa Hariharan Selvam dan Raja Sekar Selvam (OKT 2) adalah adik-beradik. Hariharan dikatakan juga tinggal di unit/rumah tersebut. Pasport antarabangsanya juga telah dijumpai di salah satu bilik unit/rumah tersebut. Hariharan selepas membawa Polis ke unit (rumah) tempat kejadian, telah turut ditangkap bersama OKT 1 dan OKT 2 dan seterusnya telah dituduh bersama di Mahkamah Majistret di bawah Seksyen 39B Akta Dadah Berbahaya. Anehnya semasa kes dipindahkan ke Mahkamah Tinggi, Hariharan tidak pula dituduh (i.e dia dibebaskan) dan tidak ada penjelasan terperinci diberikan oleh pihak Pendakwaan mengenai perkara ini. [35] Lebih aneh lagi, Hariharan tidak dipanggil untuk memberi keterangan. Ini bukan sahaja telah mewujudkan kelompangan di dalam kes Pendakwaan malahan ini terjumlah kepada satu “suppression of evidence”. Justeru, satu anggapan bertentangan di bawah Seksyen 114 (g). Akta Keterangan perlu dikenakan terhadap Pendakwaan. Dengan kegagalan pihak Pendakwaan memanggil Hariharan yang tinggal bersama di unit tersebut untuk memberi keterangan, inferens yang boleh dibuat ialah dadah-dadah tersebut adalah kepunyaan Hariharan. Ini dikukuhkan lagi dengan keterangan bahawa Hariharan telah ditangkap di blok tersebut sebelum kejadian ini oleh SP2 dan anggota sebuan tersebut dengan memiliki dadah-dadah dari jenis yang sama yang dijumpai di Bilik Utama. Tambahan pula, Hariharan mempunyai kad Access kepada S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 unit/rumah tersebut dan tidak pula dijumpai kad Access di dalam milikan OKT 1 dan OKT 2. [36] Terdapat seorang lagi watak yang wujud yang mana tidak dinafikan oleh saksi-saksi Pendakwaan. Namanya ialah Suresh @ Fire. Kemungkinan besar Suresh @ Fire turut tinggal di rumah tersebut tidak dapat diketepikan. Ini adalah kerana, Suresh @ Fire ini adalah Penyewa Utama unit tersebut dan telah menandatangani satu Tenancy Agreement dengan tuan punya unit/rumah tersebut bernama Birendra Chhetri a/l Rambahadur seperti di P40. Justeru, kemungkinan dadah-dadah tersebut dimiliki oleh Suresh @ Fire ini tidak boleh diketepikan. Namun, Suresh @ Fire juga gagal dipanggil untuk memberi keterangan oleh pihak Pendakwaan. Inferens yang boleh dibuat ialah jika dia dipanggil, nescaya dia akan memberi keterangan yang memihak kepada kedua-dua Tertuduh. Justeru, inferens bertentangan di bawah Seksyen 114 (g) Akta Keterangan, juga perlu dikenakan terhadap Pendakwaan dengan kegagalan ini. [37] Di dalam kes ini, pihak Pendakwaan hanya memanggil tiga (3) orang saksi sahaja iaitu SP1 (Ahli Kimia), SP2 (Pegawai Serbuan) dan SP3 (Pegawai Penyiasat) walaupun Alcontara Notice telah diberikan oleh pihak Pembelaan apabila dicadangkan beberapa kali watak-watak yang terlibat khususnya Hariharan dan Suresh @ Fire. Perlu ditekankan di sini, manakala Pendakwa Raya mempunyai budi bicara untuk memanggil sesiapa dan beberapa orang saksi yang difikirkan perlu, (lihat kes Adel Muhammed El Dabbah v. AG Palestine [1944] AC 156), namun Pendakwaan bertanggung jawab untuk S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 memastikan tidak wujudnya kelompangan di dalam kes Pendakwaan akibat dari “failure to unfold the narrative of the prosecution’s case”. [38] Di dalam kes PP v. Chia Leong Foo [2004] 4 CLJ 649, Mahkamah Persekutuan menyatakan: “In a criminal case, the prosecution, provided there is no wrong motive, has a discretion whether or not to call a particular witness, and specifically has a discretion not to call in support of its case a witness whom it does not believe to be a witness of truth. But there is an obligation on the prosecution to call as witnesses persons whose evidence is essential to unfold the narrative upon which its case is based.” [39] Di dalam kes Ibrahim Mohamad & Anor v. PP [2011] 4 CLJ 113, Mahkamah Persekutuan memutuskan: “(4) Notwithstanding that the prosecution has complete discretion as to the choice of witnesses to be called at the trial, it has a duty to call all necessary witnesses essential to the unfolding of the narrative of the prosecution’s case. In the present case, the question as to how the vehicle came to be in the custody and control of both accused still remained unanswered.” [40] Mahkamah juga mengambil maklum bahawa terdapat banyak otoriti- otoriti yang menyarankan bahawa di atas kepentingan keadilan, saksi-saksi yang mana pernyataan saksi telah dirakamkan perlu S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 hadir ke Mahkamah. Di dalam kes Ti Chuee Hiang v. PP [1995] 3 CLJ 1, Mahkamah Persekutuan memutuskan: “On the other hand, it is clear law, that the prosecution must have in Court all witnesses from whom statements have been taken but they have a discretion whether to call them or not. (See Teh Lee Tong v. [1956] MLJ 194). That discretion, however, must be exercised having regard to the interests of justice, which includes being fair to the accused (per Lord Parker CJ in Oliva v. R [1965] 2 WLR 1028, 1035) and to call witnessess essential to the unfolding of the narrative on which the prosecution case is based, whether the effect of their testimony is for or against the prosecution (per Lord Roche in the Ceylon Privy Council case of Seneviratne v. R [1936] 3 All E.R 36, at 49, applied in R. v. Nugent [1976] 65 Cr. App. R. 40).” [41] Perkara ini turut dinyatakan di dalam kes Teh Lee Tong v. Rex [1951] 2 LNS 96. [42] Di dalam kes di hadapan Mahkamah ini, Mahkamah mendapati Hariharan adalah seorang saksi yang amat penting namun Pendakwaan gagal memanggilnya untuk memberi keterangan menyebabkan wujudnya kelompangan di dalam kes Pendakwaan. Kehadirannya ke Mahkamah untuk memberi keterangan bagi pihak Pendakwaan berupaya menutup kelompangan tersebut. Malahan, dia mampu menjawab apa-apa kemusykilan yang menyelubungi pihak Pembelaan tentang apa yang sebenarnya berlaku pada hari kejadian kerana dia ditangkap bersama pada hari kejadian dan S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 melihat apa yang berlaku pada masa kejadian. Dia adalah saksi mata. Dia juga berupaya menjelaskan siapakah pemilik sebenar dadah-dadah tersebut yang tidak mampu dijawab oleh SP2. Rakaman percakapannya telah turut dirakamkan. [43] Kegagalan Pendakwaan untuk memastikan kehadirannya (secure his attendance) dengan membuat satu tahanan sivil atau apa-apa cara mengikut prosidur KAJ contohnya dilepaskan dengan bon jaminan (lihat Seksyen 118 KAJ) supaya dia hadir memberi keterangan pada tarikh bicara, adalah amat fatal. Tidak pula pihak Pendakwaan menjelaskan secara terperinci kenapa tindakan sedemikian tidak diambil walhal Pendakwaan sedia maklum bahawa dia adalah warganegara India dan selepas dibebaskan oleh Mahkamah Majistret dan tidak dituduh di Mahkamah Tinggi, sudah pastinya dia akan melarikan diri. [44] Suresh @ Fire telah turut dirakamkan percakapannya di bawah Seksyen 112 Kanun Acara Jenayah seperti di ID 45. [45] Namun, Suresh juga tidak dipanggil memberi keterangan. Tidak pula Pendakwaan menerangkan kenapa dia tidak hadir memberi keterangan dan jika tidak dapat dikesan, apakah usaha-usaha yang telah dilakukan untuk mengesannya. SP1 dan SP2 bersetuju Suresh @ Fire ini adalah saksi penting dan telah memberi keterangan bahawa Suresh @ Fire ini telah ditahan untuk kesalahan dadah selang beberapa hari selepas OKT 1 dan OKT 2 ditangkap. Di atas S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 kegagalan ini inferensi bertentangan perlu dikenakan terhadap pihak Pendakwaan. Wujudnya beg misteri berwarna pink yang di bawa oleh anggota serbuan yang melemahkan lagi kes Pendakwaan dan amat fatal [46] Semasa di dalam pemeriksaan balas, SP2 bersetuju bahawa beliau tidak langsung menyebut mengenai terdapatnya satu (1) beg plastik warna pink telah di bawa bersama oleh pasukan serbuan semasa serbuan dan tangkapan terhadap Hariharan dan kedua-dua Tertuduh dibuat. Beg pink ini tidak pernah dinyatakan oleh SP2 semasa memberi keterangan semasa pemeriksaan utama. Begitu juga SP3. Ianya juga tidak menjadi sebahagian daripada eksibit yang dikemukakan oleh pihak Pendakwaan [sila lihat gambar-gambar eksibit P34 (1-5)]. Malahan ianya tidak juga dinyatakan di dalam Borang Serah Menyerah (P21) dan Borang Geledah (P20). SP2 bersetuju beg ini memang wujud dan di bawa naik ke unit tempat kejadian (16-4) semasa serbuan. Apa kandungan dan tujuan menjadi tanda tanya. Perkara ini hanya timbul ketika di soal balas oleh Peguambela OKT 2 terhadap SP2 seperti berikut: “PBT2 : Masa tangkapan di lobi dibuat, tuan ada ...tuan dan team tuan ada satu beg pink. SP2 : Setuju. S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 PBT2 : Dan beg ini dibawa naik atas ke tingkat 16-4 ke dalam unit tersebut, setuju? SP2 : Setuju. PBT2 : Apa kandungan beg itu memang tak ada sebarang bukti di mahkamah hari ini, setuju? SP2 : Setuju.” [47] Mahkamah memutuskan ini adalah satu “serious suppression of evidence” dan anggapan bertentangan perlu dikenakan terhadap pihak Pendakwaan di bawah Seksyen 114 (g) Akta Keterangan. Ianya telah juga mengakibatkan kelompangan di dalam kes Pendakwaan dan juga telah menimbulkan satu keraguan yang munasabah. [48] Malahan, pihak Pembelaan telah mencadangkan/menyarankan bahawa beg pink tersebut telah digunakan oleh pasukan serbuan untuk membawa dadah-dadah tersebut (dari luar) dan diletakkan di tempat kejadian seolah-olah dadah-dadah tersebut memang dijumpai di Bilik Utama unit/rumah tersebut seperti keterangan. Di dalam ertikata lain, dadah-dadah ini telah di“planted”. Cadangan/saranan ini adalah serius kerana ia juga memberi kesan serius terhadap kredibiliti dan reliabiliti keterangan-keterangan yang diberikan SP2 khususnya dan SP3, Mahkamah berpendapat cadangan/saranan ini tidak boleh diketepikan begitu sahaja kerana S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 mungkin ada kebenarannya memandangkan Pendakwaan gagal memanggil saksi-saksi lain, khususnya Hariharan untuk memberi gambaran yang sebenar, ataupun saksi-saksi Polis lain dari kalangan anggota serbuan untuk mematahkan saranan atau cadangan tersebut. Tanpa memanggil Hariharan khususnya, cadangan/saranan bahawa dadah-dadah tersebut adalah di“planted” tidak berjaya dipatahkan Pendakwaan sedangkan SP2 bersetuju bahawa jika Hariharan datang memberi keterangan dia boleh memberi penjelasan lanjut dan mengesahkan versi mana yang benar. Tiada usaha di buat untuk mendapatkan rakaman CCTV dan tiada Buku Pelawat dirampas [49] Adalah tidak dipertikaikan, di zaman moden ini di mana-mana ceruk bangunan mewah sekarang ini akan dipantau oleh alat-alat CCTV. Jika ada kejadian jenayah berlaku, keterangan melalui rakaman CCTV in merupakan keterangan terus (direct) yang paling berkesan. Banyak kes-kes jenayah dapat diselesaikan atau pesalah-pesalah berjaya di bawa ke muka pengadilan melalui rakaman CCTV. Ini diakui oleh Pegawai Serbuan, SP2 di dalam kes ini. [50] SP2 bersetuju bahawa adalah tidak dipertikaikan bahawa identiti kesemua orang yang mempunyai akses ke unit/rumah berkenaan adalah penting dalam kes pengedaran dadah. Sekiranya rakaman CCTV dan Buku Pelawat dirampas dan disiasat, maka persoalan S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 mengenai siapa yang keluar dan masuk ke unit/rumah tersebut sememangnya boleh dijawab. [51] Pembelaan menyarankan bahawa kegagalan Polis (SP2 dan SP3) untuk merampas rakaman CCTV dan Buku Pelawat untuk di bawa ke Mahkamah memprejudiskan kedua-dua OKT dan inferens bertentangan di bawah Seksyen 114 (g) Akta Keterangan perlu dikenakan terhadap pihak Pendakwaan. [52] Namun, SP2 telah gagal merampas rakaman-rakaman CCTV sama ada di dalam lif, di Lobi mahupun di Tingkat 16 tersebut sedangkan SP2 mempunyai kuasa di bawah Seksyen 64 dan 65 KAJ untuk berbuat sedemikian. [53] Berikut adalah sedutan sebahagian keterangan SP2 mengenai rakaman CCTV semasa disoal balas oleh Peguam OKT 2: “PBT2 : Kalau kita nampak CCTV kita boleh tengok siapa yang keluar masuk tingkat 16, setuju? SP2 : Sekiranya pintu depan rumah dia ada CCTV kita boleh rujuk. PBT2 : Ok, di bahagian lif kalau ada CCTV tingkat 16 kita boleh tahu siapa turun siapa masuk, setuju? SP2 : Sekiranya ada CCTV ya, betul. S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 PBT2 : Sekiranya ada CCTV, ok. Di bahagian lobi juga kalau ada CCTV kita boleh tahu identiti-identiti siapa naik turun, setuju? SP2 : Setuju. PBT2 : Dan, identiti mereka boleh.... boleh dikenal pasti dengan rampasan buku pelawat ataupun rampasan rakaman CCTV, boleh didapatkan. Setuju? SP2 : Setuju.” [54] SP3, sebagai Pegawai Penyiasat tidak juga merampas kedua- duanya selepas kejadian. Di dalam kes Tan Teck Seng & Anor v. PP [1990] 2 CLJ 103 yang dirujuk pihak Pembelaan, Mahkamah memutuskan: “[58] Learned counsel for the appellants submitted had the visitors’ registration book and the CCTV recording been tendered in court, it would reveal the persons who had entered the said apartment and would be able to exclude Udang, Boy, Efa, Nazir and all the first appellant’s workers. [59] In our view, there is force in the submission. The visitors’ registration book and the CCTV recording could clear the doubt whether others have access to the said apartment. Had the visitors’ S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 registration book and CCTV recording been produced, the learned trial judge would be in better position to verify to prosecution’s case. [60] The non-production of the visitors’ registration book and CCTV recording, in our view, amounted to a withholding or suppression of evidence and if 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. (See Kek Chuan v. PP [2013] 6 CLJ 98).” [55] Di dalam kes See Kek Chuan v. PP [2013] 6 CLJ 98 yang dirujuk oleh pihak Pembelaan, Mahkamah Rayuan memutuskan: “[113] For completeness I should also refer to pertinent passages from an earlier Court of Appeal decision in See Kek Chuan v. PP [2013] 6 CLJ 98 which is referred to by the defence in its written submissions, which examined the issue of the making available of CCTV recording, as follows: “[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 S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 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 focussed 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. [33] In our judgment, 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.” [56] Di dalam kes Mahkamah Rayuan, See Kek Chuan v. PP (supra), Mahkamah Rayuan berpandangan dengan tiadanya CCTV dirampas, maka wujudlah keadaan seperti berikut, sama seperti di dalam kes ini: S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 “[114] Further, the investigating officer (PW9) admitted in evidence during cross-examination that he did not know how many people had entered and left the condominium unit before the arrest, he could not identify who brought the drugs into the condominium unit and even agreed that there existed a possibility that any one of the five individuals could have been responsible to have placed the drugs in the condominium unit.” [57] Masalah di atas boleh diatasi dengan merampas rakaman CCTV, Buku Pelawat dan pemantauan sebelum kejadian, yang gagal dilakukan oleh pihak Polis. Malahan, misteri beg plastik pink yang dicadangkan/disarankan oleh Pembelaan sebagai beg yang mengandungi dadah yang di bawa naik oleh pasukan serbuan dan diletakkan di Bilik Utama akan terjawab. Keraguan sama ada Unit/Rumah mempunyai tiga (3) Bilik atau lima (5) Bilik [58] Pihak Pembelaan telah mempertikaikan rajah kasar (P27) yang menunjukkan unit/rumah tersebut mempunyai tiga (3) bilik sahaja seperti jawapan SP2 dan SP3 sedangkan mengikut Pembelaan, sebenarnya unit/rumah tersebut mempunyai lima (5) bilik yang turut didiami oleh beberapa penghuni lain iaitu Suresh @ Fire, David seorang keturunan Pakistan dan Raj, seorang lelaki beragama Hindu dari Indonesia. SP2 dan SP3 tidak bersetuju tentang saranan ini, menyebabkan pihak Pembelaan mencabar dan membuat permohonan supaya Mahkamah melawat tempat kejadian untuk S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 36 memastikan jumlah bilik sebenar bagi unit/rumah tersebut. Permohonan ini dibantah dengan keras oleh TPR. [59] Mahkamah memutuskan bahawa memadangkan TPR sendiri membantah permohonan ini, Pendakwaan sepatutnya memberi pencerahan mengenai isu ini dengan secara alternatifnya memanggil saksi-saksi yang berkenaan iaitu sama ada tuan punya unit/rumah tersebut iaitu Encik Birendra Chhetri atau mana-mana AJK Management Corporation Kondominium tersebut untuk mengesahkan mengenai hal ini. Dengan kegagalan TPR sedemikian, persoalan sama ada unit/rumah tersebut mempunyai tiga (3) bilik atau lima (5) bilik tidak dapat dipastikan. Pihak Pembelaan berpendirian memang terdapat lima (5) bilik di unit/rumah tersebut yang mana selain daripada kedua-dua OKT, Hariharan, Suresh @ Fire, David dan Raj turut mendiami di unit/rumah tersebut yang memungkinkan dadah-dadah tersebut adalah milikan mereka. Justeru Mahkamah memutuskan kegagalan memanggil saksi-saksi ini mengundang inferensi bertentangan dikenakan terhadap Pendakwaan di bawah Seksyen 114 (g) Akta Keterangan. Kelemahan lain di dalam siasatan Polis [60] Terdapat beberapa kelemahan lain di dalam siasatan Polis bagi kes ini, yang menunjukkan siasatan yang tidak menyeluruh. Mahkamah telah menekankan bahawa siasatan yang menyeluruh dan adil oleh Pegawai Penyiasat adalah penting bagi setiap kes. Di dalam kes PP S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 37 v. Syed Afif Fikri Syed Abu Hussin [2020] 1 LNS 863, Mahkamah menyatakan: “Selanjutnya saya ingin mengulas berkenaan isu penyiasatan kes, khususnya mengenai tindakan SP6 selaku Pegawai Penyiasat kes. Diakui bahawa kekuatan sesuatu kes itu adalah bergantung sepenuhnya kepada hasil siasatan yang dijalankan disertakan dengan lain-lain bahan bukti. Untuk hasil penyiasatan yang baik, pastinya memerlukan suatu corak penyiasatan yang lengkap dijalankan. Di dalam soal ini, peranan seorang Pegawai Penyiasat kes amatlah penting. Perlu dilihat akan apakah aspek siasatan yang telah dilakukan sama ada ianya suatu penyiasatan yang benar-benar menyeluruh ataupun tidak. Mengkaji serta meneliti akan keseluruhan tugasan penyiasatan yang telah dijalankan oleh Pegawai Penyiasat kes ini, iaitu SP6, penyiasatan yang dilakukan olehnya bolehlah diibaratkan penyiasatan yang tidak menyeluruh. Cara dan corak siasatan yang dijalankan oleh Pegawai Penyiasat Kes ini tidak begitu kemas. Meneliti kepada Penyiasatan yang dilakukan, didapati corak penyiasatannya adalah tidak dilakukan secara menyeluruh… Sekiranya “finger dusting” ada dilakukan dan hasilnya dikemukakan di Mahkamah, ia mungkin dapat menunjukkan cap jari pemilik sebenar. Analisa cap jari merupakan satu-satunya keterangan bebas yang dapat membantu kes pendakwaan untuk menentukan siapa pemilik S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 38 sebenar plastik P7A dan P7B serta 24 peket plastik dadah-dadah tersebut. Oleh itu, SP6 sepatutnya melakukan siasatan yang lebih mendalam.” [61] Di dalam kes ini, lima (5) buah telefon bimbit telah dirampas yang mana tidak dimasukkan di dalam gambar dan juga tidak dikemukakan di dalam Mahkamah. Adalah wajar kelima-lima telefon ini perlu dihantar untuk dianalisa khususnya mengenai kandungannya oleh pihak Suruhanjaya Komunikasi dan Multimedia Malaysia (MCMC) atau/dan juga Bahagian Forensik PDRM. Ini adalah penting kerana hasil dari penganalisaan kandungan tersebut mampu menunjukkan keterangan yang selain dari memihak kepada Pendakwaan ada kemungkinan juga ianya memihak kepada pihak Pembelaan juga. Justeru Tertuduh-Tertuduh dinafikan hak mereka untuk mendapatkan pengadilan yang adil. Di dalam kes Yahya Hussein Mohsen Abdulrab v. PP [2021] 9 CLJ 414, Mahkamah memutuskan “the failure to produce the handphone had denied the accussed of a fair trial.”. [62] Walaupun terdapat beberapa kekurangan lain di dalam kes Pendakwaan, adalah memadai bagi Mahkamah menyandarkan keputusan Mahkamah dengan kekurangan-kekurangan di atas. Adalah undang-undang mantap bahawa apa-apa kekurangan (infirmities) yang terdapat di dalam kes Pendakwaan, manfaat ini perlu diberikan kepada pihak Pembelaan. (Lihat kes Mahkamah Rayuan di dalam kes Mohamad Abdul Rahman v. PP [2013] 7 CLJ 843). S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 39 H. KESIMPULAN [63] Mengambil kira segala keterangan-keterangan yang telah dikemukakan oleh Pendakwa Raya dan mengambil kira jawapan soal balas oleh Peguam kedua-dua Tertuduh dari saksi-saksi Pendakwaan khususnya SP2 dan SP3, serta cadangan-cadangan yang diajukan pihak-pihak Tertuduh dan mengambil kira kekurangan- kekurangan yang terdapat di dalam kes Pendakwaan hingga menyebabkan intipati-intipati kesalahan (khususnya milikan) telah gagal dibuktikan bagi maksud menentukan sama ada satu kes prima facie telah berjaya dibuktikan Pendakwaan, dengan menggunakan kaedah “maximum evaluation” maka satu persoalan telah diajukan oleh Mahkamah seperti kehendak kes PP v. Mohd Radzi bin Abu Bakar (supra) seperti berikut: “Jika sekarang Mahkamah memanggil kedua-dua tertuduh untuk membela diri dan mereka memilih untuk berdiam diri, adakah Mahkamah bersedia untuk mendapati mereka bersalah di atas keterangan-keterangan yang sedia ada di hadapan Mahkamah?” [64] Jawapan Mahkamah adalah tidak (negative). Justeru, Mahkamah memutuskan bahawa satu kes prima facie telah gagal dibuktikan Pendakwa Raya dan kedua-dua Tertuduh dilepas dan dibebaskan tanpa mereka dipanggil untuk membela diri. S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 40 Tarikh: 30 Oktober 2023 (DATO’ AHMAD BIN BACHE) Hakim Mahkamah Tinggi Jenayah 1 Kuala Lumpur. Pihak-Pihak Pendakwa Raya: Tuan Mohd Isa bin Mohamed Timbalan Pendakwa Raya Kamar Peguam Negara Aras 5, No. 45, Lot 4G7, Presint 4 Persiaran Perdana 62100 PUTRAJAYA Peguam Responden Encik Saha Deva Pertama: Tetuan Saha & Associates Suite 203, 2nd Floor Wisma Bandar No. 18 Jalan Tunku Abdul Rahman 50100 KUALA LUMPUR Peguam Responden Dato’ Sheelan Kedua: Tetuan Sheelan Arjunan D-2-23, Block D, Putra Makestik Jalan Kasipillay 51200 KUALA LUMPUR S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

WA-45-20-11/2021

PENDAKWA RAYA Pendakwa Raya [Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] TERTUDUH 1. ) MURUKAN A/L RAMAKRISHNAN 2. ) RAJA SEKAR SELVAM

Seksyen 39B ADB 1852 – Akhir kes Pendakwaan – OKT dilepas & dibebaskan - Cannabis 493.61 gram, Methaphetamine 189.84 gram, Heroin 6.63 gram dan Monoacetylmorphine 0.93 gram – dadah dijumpai di rumah – OKT ditahan di tempat lain – Sejurus ditahan OKT membawa polis ke rumah beliau dimana dadah dijumpai

21/11/2023

YA Dato' Ahmad Bin Bache

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=058d002e-9800-45f7-9c24-b234d92c7251&Inline=true

1 DALAM MAHKAMAH RAYUAN MALAYSIA RAYUAN JENAYAH NO.: TAHUN 2023 DI ANTARA PENDAKWA RAYA … PERAYU DAN 1. MURUKAN A/L RAMAKRISHNAN (NO. K/P: 831031-05-5619) 2. RAJA SEKAR SELVAM (NO. PASPORT: S8531729) ... RESPONDEN-RESPONDEN [Dalam Perkara Mahkamah Tinggi Malaya di Wilayah Persekutuan Kuala Lumpur Dalam Perkara Perbicaraan Jenayah No: WA-45A-83-11/2021 dan WA-45-20-11/2021 DI ANTARA PENDAKWA RAYA DAN MURUKAN A/L RAMAKRISHNAN (NO. K/P: 831031-05-5619) RAJA SEKAR SELVAM (NO. PASPORT: S8531729)] 21/11/2023 16:06:29 WA-45-20-11/2021 Kand. 17 S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 ALASAN PENGHAKIMAN A. PENDAHULUAN [1] Kedua-dua Tertuduh (OKT 1 dan OKT 2) telah dituduh bersama- sama di Mahkamah ini, bagi maksud mencapai niat bersama dengan dua (2) pertuduhan mengedar dadah berbahaya iaitu Cannabis seberat 493.61 gram dan Methaphetamine seberat 189.84 gram dan dua (2) pertuduhan memiliki dadah berbahaya iaitu Heroin seberat 6.63 gram dan Monoacetylmorphine seberat 0.93 gram. [2] Di akhir kes Pendakwaan, setelah mendengar hujahan kedua-dua pihak, Mahkamah telah memutuskan bahawa di atas penilaian maksima, Pendakwaan telah gagal membuktikan satu kes prima facie terhadap kedua-dua Tertuduh. Justeru kedua-dua Tertuduh telah dilepas dan dibebaskan tanpa dipanggil untuk membela diri. [3] Tidak berpuas hati dengan keputusan tersebut, Pendakwa Raya telah memfailkan rayuan ke Mahkamah Rayuan. [4] Ini merupakan alasan-alasan terhadap keputusan ini. Antara lain adalah kegagalan Pendakwaan membuktikan intipati-intipati pertuduhan dengan hanya memanggil tiga (3) orang saksi sahaja, sedangkan Pendakwaan akui terdapat dua (2) orang saksi lagi yang memainkan peranan yang penting di dalam kes ini. Mereka ialah Hariharan Selvam dan Suresh @ Fire yang mana kegagalan memanggil kedua-dua mereka untuk memberi keterangan telah S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 menyebabkan wujudnya kelompangan besar di dalam kes Pendakwaan dan sekaligus intipati-intipati kesalahan gagal dibuktikan. B. FAKTA KES PENDAKWAAN [5] Berdasarkan maklumat, pada 25.8.2020 jam Iebih kurang 3:00 petang, Pengadu, Inspektor Prabu (SP2) dan anggotanya telah menahan seorang lelaki (suspek) warganegara India di hadapan lif aras B2 Kompleks Mutiara Jalan Ipoh 51200 Kuala Lumpur bernama Hariharan Selvam, dengan sejumlah dadah dijumpai bersamanya. [6] Seterusnya pada pukul 3:10 petang dengan dipandu arah oleh suspek Hariharan Selvam (Hariharan), dengan menggunakan kad akses yang dirampas darinya, Hariharan telah membawa SP2 dan anggota serbuan ke alamat unit/rumah TKT 16-4 Kompleks Mutiara Jalan Ipoh 51200 Kuala Lumpur (kondo tersebut). [7] Sesampainya di unit tersebut, SP2 dapati pintu kayu dan grill tertutup dan berkunci. SP2 bersama pasukan telah umpil pintu grill besi dan tendang pintu kayu rumah sebanyak dua (2) kali sehingga terbuka. [8] SP2 dengan suspek Hariharan Selvam bersama D/Sjn Lian bersama pasukan serbuan telah masuk ke dalam unit/rumah tersebut dan ternampak dua lelaki India iaitu OKT 1 dan OKT 2 sedang duduk di atas lantai Bilik Utama sebelah kanan unit/rumah tersebut. OKT 1 S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 telah bangun dan cuba untuk menutup pintu Bilik Utama tersebut tetapi SP2 bersama D/Sjn Lian berjaya menangkap mereka berdua. [9] SP2 memperkenalkan diri kepada kedua-dua OKT dan terlihat beberapa bungkusan plastik disyaki berisi dadah berbahaya berada di atas katil dan di atas lantai di dalam Bilik Utama tersebut. [10] Seterusnya SP2 telah menjalankan pemeriksaan atas katil Bilik Utama tersebut dan telah menjumpai: (a) SATU (1) PLASTIK LUTSINAR BESAR BERISI BAHAN- BAHAN DISYAKI DADAH JENIS METHAMPHETAMINE (AB: 255 GRAM). (P8 (a)) (b) DUA (2) KETULAN MAMPAT DAUN-DAUN KERING DISYAKI DADAH JENIS GANJA YANG DIBALUT DENGAN PLASTIK LUTSINAR (AB: 478 GRAM). (P8 (B1-2)) (c) TIGA (3) PLASTIK LUTSINAR BERISI BAHAN-BAHAN DISYAKI DADAH JENIS HEROIN (AB: 175 GRAM). (P8 (C1- 3)) (d) SATU (1) BUNGKUSAN PLASTIK LUTSINAR BESAR DIDALAMNYA ADA PEKET-PEKET PLASTIK LUTSINAR KECIL YANG KOSONG. (e) SERANGKAI KUNCI ADA LAPAN (8) ANAK KUNCI. S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 (f) SATU (1) KAD AKSES BERTULIS KOMPLEKS MUTIARA. (g) SATU (1) TELEFON BIMBIT JENAMA SONY DISYAKI MILIK SUSPEK NO. 3. (h) SATU (1) TELEFON BIMBIT JENAMA VIVO DISYAKI MILIK SUSPEK NO. 2. (i) SATU (1) TELEFON BIMBIT JENAMA OPPO DISYAKI MILIK SUSPEK NO. 2. (j) SATU (1) TELEFON BIMBIT JENAMA ZTE DISYAKI MILIK SUSPEK NO. 2. (k) SATU (1) TELEFON BIMBIT JENAMA IPHONE DISYAKI MILIK SUSPEK NO. 1. (l) SATU (1) DOMPET KECIL DI DALAMNYA ADA KAD PENGENALAN ATAS PENAMA MURUKAN A/L RAMAKRISHNAN, NO. K/P: 831031-05-5619, SATU (1) KAD BONUS LINK DAN SATU (1) KAD ATM HONG LEONG BANK NO. SIRI: 5399 7400 0226 4074. [11] SP2 seterusnya telah membuat pemeriksaan lanjut di atas lantai bilik berkenaan dan telah menjumpai: S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 (a) DUA (2) KETULAN MAMPAT DAUN-DAUN KERING DISYAKI DADAH JENIS GANJA YANG DIBALUT DENGAN PLASTIK LUTSINAR (AB: 47 GRAM). (P12 (a-b)) (b) TIGA (3) PEKET PLASTIK LUTSINAR KECIL BERISI BAHAN- BAHAN DISYAKI DADAH JENIS HEROIN (AB: 21 GRAM). (P13 (1-3)) (c) TIGA (3) PEKET PLASTIK LUTSINAR BERISI BAHAN- BAHAN DISYAKI DADAH JENIS METHAMPHETAMINE (AB: 20 GRAM). (P14 (1-3)) (d) SATU (1) ALAT TIMBANG JENAMA CAMRY. (e) SATU (1) SUDU ALUMINIUM. (f) SATU (1) ALAT IMPULSE SEALER TYPE PFS-200. (P23) (g) SATU (1) BUNGKUSAN PLASTIK LUTSINAR BESAR DI DALAMNYA ADA SATU (1) IKATAN GELANG GETAH PLASTIK-PLASTIK KOSONG. [12] SP2 turut merampas dari dalam Bilik Utama tersebut, sehelai baju berwarna hitam bertulis RSS Security disyaki milik OKT 1. [13] Pemeriksaan SP2 ke atas bilik no. 2 sebelah kiri rumah tidak menjumpai apa-apa barang salah tetapi ada membuat rampasan sehelai baju lengan panjang jenama Garage warna kelabu disyaki S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 milik Hariharan Selvam dan satu (1) pasport atas penama suspek Hariharan Selvam, no. pasport: U4215019. [14] Pemeriksaan SP2 ke atas bilik no. 3 sebelah kanan rumah, tidak menjumpai apa-apa barang salah tetapi SP2 ada membuat rampasan sehelai kain pelikat warna coklat disyaki milik suspek OKT 2 dan satu (1) pasport atas penama Raja Sekar Selvam (OKT 2), no. pasport: S8531729. [15] Pemeriksaan lanjut di bahagian lain rumah tidak menjumpai apa-apa barang salah. SP2 telah merampas kesemua barang kes dan telah menangkap ketiga-tiga mereka termasuk Hariharan Selvam. Seterusnya SP2 telah membawa barang kes dan ketiga-tiga mereka ke Jabatan Siasatan Jenayah Narkotik, Ibu Pejabat Polis Kontinjen Kuala Lumpur untuk tindakan selanjutnya. [16] Pada 1.9.2020 Pegawai Penyiasat iaitu SP3 telah menghantar barang-barang disyaki dadah tersebut ke makmal kimia dan telah diterima oleh Ahli Kimia, SP1. Hasil analisa Ahli Kimia (SP1) terhadap kesemua barang kes tersebut telah mendapati ianya adalah dadah-dadah berbahaya dengan jenis-jenis seperti berikut: (a) Cannabis seberat 493.61 gram; (b) Methamphetamine seberat 189.84 gram; (c) Heroin seberat 6.63 gram; (d) Monoacetylmorphines seberat 0.93 gram. S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 C. ELEMEN-ELEMEN PERTUDUHAN [17] Elemen-elemen yang perlu dibuktikan secara prima facie dalam kes di bawah Seksyen 39B (1) (a) Akta Dadah Berbahaya 1952 terhadap Tertuduh-Tertuduh (OKT 1 dan OKT 2) ialah: (i) Dadah-dadah tersebut berada di dalam milikan Tertuduh- Tertuduh; (ii) Dadah-dadah tersebut adalah dadah berbahaya; (iii) OKT mengedar dadah-dadah tersebut. [18] Dan untuk pertuduhan-pertuduhan di bahawa Seksyen 12 (2) Akta Dadah Berbahaya 1952 elemen-elemen yang perlu dibuktikan secara prima facie adalah: (i) Dadah-dadah tersebut berada di dalam milikan Tertuduh; (ii) Dadah-dadah tersebut adalah dadah berbahaya. D. PERTUDUHAN (a) PERTUDUHAN PERTAMA (WA-45A-83-11/2021) Bahawa kamu bersama-sama pada 25.8.2020 jam Iebih kurang 3:10 petang bertempat di Tingkat 16-4 Kompleks Mutiara Jalan Ipoh, di S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 dalam Daerah Sentul, dalam Wilayah Persekutuan Kuala Lumpur bagi mencapai niat bersama telah mengedar dadah berbahaya jenis Cannabis [berat bersih: 493.61 gram], dan dengan itu kamu telah melakukan satu kesalahan di bawah Seksyen 39B (1) (a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39B (2) Akta yang sama dan dibaca bersama Seksyen 34 Kanun Keseksaan. (b) PERTUDUHAN KEDUA (WA-45A-83-1112021) Bahawa kamu bersama-sama pada 25.8.2020 jam Iebih kurang 3:10 petang bertempat di Tingkat 16-4 Kompleks Mutiara Jalan Ipoh, di dalam Daerah Sentul, dalam Wilayah Persekutuan Kuala Lumpur bagi mencapai niat bersama telah mengedar dadah berbahaya jenis Methamphetamine [berat bersih: 189.84 gram], dan dengan itu kamu telah melakukan satu kesalahan di bawah Seksyen 39B (1) (a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39B (2) Akta yang sama dan dibaca bersama Seksyen 34 Kanun Keseksaan. (c) PERTUDUHAN KETIGA (WA-45A-83-11/2021) Bahawa kamu bersama-sama pada 25.8.2020 jam Iebih kurang 3:10 petang bertempat di Tingkat 16-4 Kompleks Mutiara Jalan Ipoh, di dalam Daerah Sentul, dalam Wilayah Persekutuan Kuala Lumpur bagi mencapai niat bersama telah memiliki dadah berbahaya jenis Heroin [berat bersih: 6.63 gram], dan dengan itu kamu telah melakukan satu kesalahan di bawah Seksyen 12 (2) Akta Dadah Berbahaya 1952 S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 dan boleh dihukum di bawah Seksyen 39A (2) Akta yang sama dan dibaca bersama Seksyen 34 Kanun Keseksaan. (d) PERTUDUHAN KEEMPAT (WA-45-20-11/2021) Bahawa kamu bersama-sama pada 25.8.2020 jam lebih kurang 3:10 petang bertempat di Tingkat 16-4 Kompleks Mutiara Jalan Ipoh, di dalam Daerah Sentul, dalam Wilayah Persekutuan Kuala Lumpur bagi mencapai niat bersama telah memiliki dadah berbahaya jenis Monoacetylmorphines [berat bersih: 0.93 gram], dan dengan itu kamu telah melakukan satu kesalahan di bawah Seksyen 12 (2) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 12 (3) Akta yang sama dan dibaca bersama Seksyen 34 Kanun Keseksaan. E. BEBAN PEMBUKTIAN [19] Tanggungjawab Pendakwaan di peringkat kes Pendakwaan adalah untuk menunjukkan bahawa di atas “maximum evaluation” satu kes prima facie telah berjaya dibuktikan. Seksyen 180 Kanun Acara Jenayah berbunyi seperti berikut: “Procedure after conclusion of case for prosecution (1) When the case for the prosecution is concluded, the Court shall consider whether the prosecution has made out a prima facie case against the accused. S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 (2) If the Court finds that the prosecution has not made out a prima facie case against the accused, the Court shall record an order of acquittal. (3) If the Court finds that a prima facie case has been made out against the accused on the offence charged the Court shall call upon the accused to enter on his defence.” [20] Di dalam kes PP v. Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457, Mahkamah Persekutuan memutuskan seperti berikut: “(i) At the close of the prosecution’s case, subject the evidence led by the prosecution in its totality to a maximum evaluation. Carefully scrutinize the credibility of each of the prosecution’s witnesses. Take into account all reasonable inferences that may be drawn from that evidence. If the evidence admits of two or more inferences, then draw the inference that is most favourable to the accused; (ii) ask yourself the question: If I now call upon the accused to make his defence and he elects to remain silent am I prepared to convict him on the evidence now before me? If the anwer to that question is “Yes”, then a prima facie case has been made out and the defence should be called. If the answer is “No” then, a prima facie case has not been made out and the accused should be acquitted; S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 (iii) after the defence is called, if the accused elects to remain silent, then convict; (iv) after defence is called, the accused elects to give evidence, then go through the steps out in Mat v. Public Prosecutor [1963] 1 LNS 82; [1963] MLJ 263.” [21] Mahkamah telah meneliti segala keterangan yang ada dan hujahan kedua-dua pihak iaitu dari Timbalan Pendakwa Raya dan kedua-dua Peguambela Tertuduh-Tertuduh. Pihak Pendakwaan menghujahkan bahawa di atas “maximum evaluation” kesemua intipati-intipati kesalahan telah berjaya dibuktikan. Justeru, satu kes prima facie telah berjaya dibuktikan dan Tertuduh perlu dipanggil untuk membela diri. Pihak Pembelaan menghujahkan sebaliknya dan menghujahkan kedua-dua OKT perlu dilepas dan dibebaskan tanpa dipanggil membela diri, memandangkan satu kes prima facie telah gagal dibuktikan oleh pihak Pendakwaan. [22] Manakala, Pembelaan tidak mempertikaikan bahawa dadah-dadah tersebut adalah seperti pertuduhan-pertuduhan namun dari awal lagi mereka telah tidak bersetuju bahawa milikan telah berjaya dibuktikan Pendakwaan. Ini adalah kerana Pendakwa Raya gagal membuktikan bahawa dadah-dadah tersebut adalah di dalam milikan ekslusif kedua-dua Tertuduh memandangkan Pendakwa Raya gagal menangkis kemungkinan orang-orang lain juga mempunyai akses kepada dadah-dadah tersebut, khususnya Hariharan Selvam yang turut ditangkap dan dituduh bersama di Mahkamah Majistret di S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 bawah Seksyen 39B Akta Dadah Berbahaya. Hariharan Selvam (Hariharan) ini walau bagaimanapun, tidak dituduh di Mahkamah Tinggi dan tidak pula dipanggil untuk memberi keterangan. Seorang lagi suspek ialah “Fire” atau nama sebenarnya adalah Suresh a/l Sokinggam yang turut tidak dipanggil untuk memberi keterangan yang menyebabkan wujudnya kelompangan di dalam kes Pendakwaan. Ini akan dibincangkan kemudian. F. UNDANG-UNDANG MENGENAI MILIKAN DAN PENGETAHUAN [23] Di dalam kes PP v. Danish Madhavan [2009] 2 CLJ 209, Mahkamah Persekutuan telah menafsirkan milikan seperti berikut: “[18] Thomson J, in Chan Pean Leon v. Public Prosecutor [1956] 1 LNS 17, said that “possession” for the purposes of criminal law involves possession itself - which some authorities term “custody” or "control" - and knowledge of the nature of the thing possessed. As to possession itself he cited the following definition in Stephen's Digest (9th edn, p. 304), in which the exclusive element mentioned by Taylor J appears: A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need. S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 [19] Once the elements needed to constitute possession are established, including the element of exclusive power to deal, then what is established is possession, not exclusive possession. So much for exclusive possession.” [24] Di dalam kes Chan Pean Leon v. Public Prosecutor [1956] 1 LNS 17 yang dirujuk di dalam kes PP v. Denish Madhavan (supra), Thompson J menyatakan seperti berikut: “Possession” itself as regards the criminal law is described as follows in Stephen's Digest (9th Ed), p 304): “A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need.” To put it otherwise, there is a physical element and a mental element which must both be present before possession is made out. The accused must not only be so situated that he can deal with the thing as if it belonged to him, for example have it in his pocket or have it lying in front of him on a table. It must also be shewn that he had the intention of dealing with it as if it belonged to him should he see any occasion to do so, in other words, that he had some animus possidendi. Intention is a matter of fact which in the nature of things cannot be proved by direct evidence. It can only be proved by S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 inference from the surrounding circumstances. Whether these surrounding circumstances make out such intention is a question of fact in each individualcase. If a watch is in my pocket then in the absence of anything else the inference will be clear that I intend to deal with it as if it were my own and accordingly I am in possession of it. On the other hand, if it is lying on a table in a room in which I am but which is also frequently used by other people then the mere fact that I am in physical proximity to it does not give rise to the inference that I intend to deal with it as if it belonged to me. There must be some evidence that I am doing or having done something with it that shews such an intention. Or it must be clear that the circumstances in which it is found shew such an intention. It may be found in a locked room to which I hold the key or it may be found in a drawer mixed up with my own belongings or it may be found, as occurred in a recent case, in a box under my bed. The possible circumstances cannot be set out exhaustively and it is impossible to lay down any general rule on the point. But there must be something in the evidence to satisfy the court that the person who is physically in a position to deal with the thing as his own had the intention of doing so.” Based on the above decisions, the Prosecution must discharge the duty to prove that the Accused had custody or control and knowledge of the drugs. (Mens rea possession)” [25] Mengenai pengetahuan, di dalam kes yang sama Mahkamah Persekutuan menyatakan: S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 “[16] In the case of Chan Pean Leon v. PP [1956] 1 MLJ 237, Thomson J held at Pg 239: “Here again knowledge cannot be proved by direct evidence, it can only be proved by inference from the surrounding circumstances. Again the possible variety of circumstances which will support such an inference is infinite. There may be something in the accused's behaviour that shews knowledge, or the nature of the thing may be so obvious that it is possible to say “he must have known what it was” or, again in cases under the Dangerous Drugs Ordinance, there may be a statutory presumption which fills a gap in the evidence.” [26] Di dalam kes di hadapan Mahkamah ini, kedua-dua OKT tidak dilihat menyentuh atau sedang membungkus dadah-dadah berkenaan tetapi dadah-dadah adalah dilihat hanya berkedudukan berhampiran (close proximity) dengan kedudukan Tertuduh-Tertuduh. Namun, ianya tidak semestinya membuktikan dadah-dadah itu kepunyaan OKT-OKT. [27] Di dalam kes Low Thiam Teck v. PP [2014] 1 LNS 1104, Mahkamah Rayuan memutuskan: “Physical proximity to the drugs per se is insufficient to prove possession without proof of knowledge.” S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 Mere proximity to the bag containing the drug cannot by any stretch of imagination be equated with custody or control. It must further be shown that the appellant either had physical care of the bag or had charge or dominion over the bag. At the highest, the evidence merely showed that perhaps the appellant had some mementory custody of the bags together with the Second OKT. In such circumstances there was no possession (Warner v. Metropolitan Police Commissioner [1969] 2 AC 256)” (c) the Court of Appeal in the case of Roslan Hanapi v. PP [2015] 6 CLJ 464 held: “…... evidence of close proximity to the drugs was neither here nor there, given the fact that the store was accessibles to family members of the Second Accussed and even to the public.” [28] Di dalam kes PP v. Mok Kar Poh [2001] 5 CLJ 206, Mahkamah memutuskan: “there is to be both a physical and mental element before possession can be made out,” and further held “the mere fact that the said offending article (ie, the drug) was in physical proximity to the accused does not ipso facto give rise to the inference that the accused intends to deal with it as if it belonged to him.” S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 G. PENGANALISAAN DAN DAPATAN MAHKAMAH [29] Adalah menjadi kes Pendakwaan bahawa dadah-dadah tersebut dijumpai di dalam unit kondo di dalam Bilik Utama bersama-sama kedua-dua OKT. Yang membawa anggota serbuan yang diketuai oleh SP2 (Inspektor Prabha) ke unit kondo tersebut adalah Hariharan (seorang suspek). Menurut SP2, terdapat beberapa bungkusan plastik disyaki mengandungi dadah dilihat berada di atas katil dan lantai di dalam Bilik Utama tersebut ketika beliau dan anggota serbuan memecah masuk ke dalam rumah/unit tersebut. Tidak pula SP2 melihat kedua-dua OKT sedang memegang atau memasukkan dadah-dadah tersebut ke dalam plastik-plastik berkenaan. Mahkamah telah tidak mengambil kira apa-apa maklumat yang diberikan Hariharan kepada SP2 bahawa kononnya OKT 1 terlibat dengan dadah-dadah ini, kerana ini adalah dengar cakap kerana Hariharan tidak hadir untuk memberi keterangan, “self serving” dan amat memprejudiskan OKT 1. Setelah mengambil kira keseluruhan keterangan-keterangan yang telah dikemukakan, serta mengambil kira hujahan kedua-dua pihak, Mahkamah telah memutuskan seperti di bawah ini: Pendakwaan gagal membuktikan bahawa OKT-OKT mempunyai milikan ekslusif terhadap dadah-dadah tersebut [30] Perlu ditekankan di sini bahawa adalah menjadi tanggung jawab pihak Pendakwaan untuk membuktikan bahawa OKT-OKT mempunyai milikan ekslusif terhadap dadah-dadah tersebut. Di S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 dalam ertikata lain Pendakwaan perlu membuktikan bahawa orang lain tidak mempunyai akses kepada dadah-dadah tersebut dan beban ini terletak di atas bahu Pendakwa Raya dan bukan di atas Tertuduh sepertimana diputuskan oleh Mahkamah-Mahkamah atasan seperti berikut: [31] Di dalam kes Husin bin Sitorus v. PP [2012] 7 CLJ 205, Mahkamah Rayuan memutuskan: “[15] There is a welter of authoritative precedents which have held that for possession to be established, accessibility by others to the place where the drugs are found should be excluded by evidence by the prosecution (Pendakwa Raya v. Kang Ho Soh [1991] 3 CLJ 2914; [1992] 1 MLJ 360, Public Prosecutor v. Tang Chew Weng [1969] 1 LNS 141; [1969] 2 MLJ 17). The onus is not on the defence to prove possibility of access by others but on the prosecution to exclude such possibility and the issue must be answered in favour of the appellant if there were more than one way in which the evidence adduced by the prosecution might be viewed such as in the present case, implicating the appellant or the other persons who were present in the boat. (Abdullah Zawawi bin Yusoff v. Public Prosecutor [1993] 4 CLJ 1; [1993] 3 MLJ 1). In other words, exclusivity of custody and control of the drugs ought to be established by the prosecution.” [32] Di dalam kes Ang Kian Chai v. PP & Anor [2012] 4 MLRA 456, Mahkamah Rayuan memutuskan: S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 “[28] The factual matrix showed that the appellant was not alone in the said house when SP4 and his police party gained access inside the said house. Chen Jing and a child of about four years old were also there - inside the said house. Yet, the learned JC invoked the presumption under s. 37(d) of the DDA against the appellant and found him to be in possession of the raw opium. In our judgment, before the learned JC could invoke s. 37 (d) of the DDA against the appellant the prosecution ought to have excluded Chen Jing from having custody or control of the raw opium at the material time. This exclusion can only be achieved if the prosecution were to call Chen Jing as a witness or if the prosecution were to tender the s. 112 statement of Chen Jing. Alas, all these were not done. The Federal Court in Ibrahim Mohamad & Anor v. PP [2011] 4 CLJ 113 held that the non-tendering of the statement of the owner of the vehicle or the failure of the prosecution to call the owner of the vehicle as a witness raised the pertinent question of who was in actual control of the vehicle immediately prior to the date of arrest. The Federal Court also held that it was the duty of the prosecution to exclude the possibility that other individuals could not have had custody or control of the vehicle immediately prior to the date of arrest. Now, applying the principles in that case to the present appeal at hand, we categorically say that the prosecution had failed to exclude the possibilities that Chen Jing or even Chen Jing’s husband (Goo Aik Hiang) or even Khoo Teck Huat whose name was on the water bill of the said house could have had custody or control or access to the raw opium. S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 [29] It is trite law that the onus is not on the appellant to prove the possibility of access to the raw opium by others but rather that onus falls on the prosecution to prove to the court that others could not possibly had access to the raw opium. To put it in another way, it is the duty of the prosecution to exclude such possibility and to prove that the appellant had exclusive possession of the raw opium (Abdullah Zawawi Yusoff v. Pendakwa Raya [1993] 4 CLJ 1; [1993] 3 MLJ 1 SC).” [33] Di dalam kes Abdullah Zawawi Yusuff v. Pendakwa Raya [1993] 4 CLJ 1, Mahkamah Agung memutuskan: “[14] Thus, to sum up, the common usage, plain, natural and ordinary meaning of “exclusive” is “excluding or to exclude all others; not shared or divided”. In the context of drugs possession, “exclusive possession” can be construed to mean that the place where the drugs are found must be “exclusive” to the accused... ........ [16] There is a plethora of cases decided by the courts on this point. The principle as discernible from those cases is simply these: there is a burden of proof on the prosecution to exclude the possibility of access by others to the place where the drugs are found. A failure by the prosecution to establish this would result in an acquittal of the accused; for example: (i) Public Prosecutor v. Chan Peng Fatt [2000] 1 MLJ 179. The court found that the accused did not have exclusivity to the attic S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 where the drugs were found; therefore, he was acquitted and discharged. (ii) Public Prosecutor v. Md Alim bin Samad [1998] 1 MLJ 260. The rooms where the drugs were found were accessible by different people frequenting the house. The court held that knowledge alone not enough to establish control. (iii) Lee Chee Meng v. Public Prosecutor [1992] 1 MLJ 322. There were access by third parties to the premises, thus exclusivity of use of the premises had not been proved and the accused was acquitted. (iv) Pang Chee Meng v. Public Prosecutor [1992] 1 MLJ 137. The accused was acquitted even though the drugs were found in his room, but, as he shared the room with several others, the prosecution had not proved exclusive use of the room or exclusive custody or control of the drugs. (v) Public Prosecutor v. Basri bin Salihin [1994] 2 MLJ 476. The bin where the drugs were found was accessible to the general public and the accused had no exclusive control over it. Therefore, the accused was acquitted and discharged.” [34] Di dalam kes ini, dari keterangan-keterangan yang terkumpul, bukan sahaja Pendakwaan gagal memastikan orang lain tidak mempunyai akses kepada dadah-dadah tersebut melainkan kedua-dua Tertuduh (OKT 1 dan OKT 2), malahan kemungkinan orang yang memiliki S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 dadah tersebut, ialah Hariharan Selvam sendiri iaitu suspek yang membawa pasukan serbuan ke unit itu, yang memiliki kad Access ke unit itu. Adalah tidak dipertikaikan bahawa Hariharan Selvam dan Raja Sekar Selvam (OKT 2) adalah adik-beradik. Hariharan dikatakan juga tinggal di unit/rumah tersebut. Pasport antarabangsanya juga telah dijumpai di salah satu bilik unit/rumah tersebut. Hariharan selepas membawa Polis ke unit (rumah) tempat kejadian, telah turut ditangkap bersama OKT 1 dan OKT 2 dan seterusnya telah dituduh bersama di Mahkamah Majistret di bawah Seksyen 39B Akta Dadah Berbahaya. Anehnya semasa kes dipindahkan ke Mahkamah Tinggi, Hariharan tidak pula dituduh (i.e dia dibebaskan) dan tidak ada penjelasan terperinci diberikan oleh pihak Pendakwaan mengenai perkara ini. [35] Lebih aneh lagi, Hariharan tidak dipanggil untuk memberi keterangan. Ini bukan sahaja telah mewujudkan kelompangan di dalam kes Pendakwaan malahan ini terjumlah kepada satu “suppression of evidence”. Justeru, satu anggapan bertentangan di bawah Seksyen 114 (g). Akta Keterangan perlu dikenakan terhadap Pendakwaan. Dengan kegagalan pihak Pendakwaan memanggil Hariharan yang tinggal bersama di unit tersebut untuk memberi keterangan, inferens yang boleh dibuat ialah dadah-dadah tersebut adalah kepunyaan Hariharan. Ini dikukuhkan lagi dengan keterangan bahawa Hariharan telah ditangkap di blok tersebut sebelum kejadian ini oleh SP2 dan anggota sebuan tersebut dengan memiliki dadah-dadah dari jenis yang sama yang dijumpai di Bilik Utama. Tambahan pula, Hariharan mempunyai kad Access kepada S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 unit/rumah tersebut dan tidak pula dijumpai kad Access di dalam milikan OKT 1 dan OKT 2. [36] Terdapat seorang lagi watak yang wujud yang mana tidak dinafikan oleh saksi-saksi Pendakwaan. Namanya ialah Suresh @ Fire. Kemungkinan besar Suresh @ Fire turut tinggal di rumah tersebut tidak dapat diketepikan. Ini adalah kerana, Suresh @ Fire ini adalah Penyewa Utama unit tersebut dan telah menandatangani satu Tenancy Agreement dengan tuan punya unit/rumah tersebut bernama Birendra Chhetri a/l Rambahadur seperti di P40. Justeru, kemungkinan dadah-dadah tersebut dimiliki oleh Suresh @ Fire ini tidak boleh diketepikan. Namun, Suresh @ Fire juga gagal dipanggil untuk memberi keterangan oleh pihak Pendakwaan. Inferens yang boleh dibuat ialah jika dia dipanggil, nescaya dia akan memberi keterangan yang memihak kepada kedua-dua Tertuduh. Justeru, inferens bertentangan di bawah Seksyen 114 (g) Akta Keterangan, juga perlu dikenakan terhadap Pendakwaan dengan kegagalan ini. [37] Di dalam kes ini, pihak Pendakwaan hanya memanggil tiga (3) orang saksi sahaja iaitu SP1 (Ahli Kimia), SP2 (Pegawai Serbuan) dan SP3 (Pegawai Penyiasat) walaupun Alcontara Notice telah diberikan oleh pihak Pembelaan apabila dicadangkan beberapa kali watak-watak yang terlibat khususnya Hariharan dan Suresh @ Fire. Perlu ditekankan di sini, manakala Pendakwa Raya mempunyai budi bicara untuk memanggil sesiapa dan beberapa orang saksi yang difikirkan perlu, (lihat kes Adel Muhammed El Dabbah v. AG Palestine [1944] AC 156), namun Pendakwaan bertanggung jawab untuk S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 memastikan tidak wujudnya kelompangan di dalam kes Pendakwaan akibat dari “failure to unfold the narrative of the prosecution’s case”. [38] Di dalam kes PP v. Chia Leong Foo [2004] 4 CLJ 649, Mahkamah Persekutuan menyatakan: “In a criminal case, the prosecution, provided there is no wrong motive, has a discretion whether or not to call a particular witness, and specifically has a discretion not to call in support of its case a witness whom it does not believe to be a witness of truth. But there is an obligation on the prosecution to call as witnesses persons whose evidence is essential to unfold the narrative upon which its case is based.” [39] Di dalam kes Ibrahim Mohamad & Anor v. PP [2011] 4 CLJ 113, Mahkamah Persekutuan memutuskan: “(4) Notwithstanding that the prosecution has complete discretion as to the choice of witnesses to be called at the trial, it has a duty to call all necessary witnesses essential to the unfolding of the narrative of the prosecution’s case. In the present case, the question as to how the vehicle came to be in the custody and control of both accused still remained unanswered.” [40] Mahkamah juga mengambil maklum bahawa terdapat banyak otoriti- otoriti yang menyarankan bahawa di atas kepentingan keadilan, saksi-saksi yang mana pernyataan saksi telah dirakamkan perlu S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 hadir ke Mahkamah. Di dalam kes Ti Chuee Hiang v. PP [1995] 3 CLJ 1, Mahkamah Persekutuan memutuskan: “On the other hand, it is clear law, that the prosecution must have in Court all witnesses from whom statements have been taken but they have a discretion whether to call them or not. (See Teh Lee Tong v. [1956] MLJ 194). That discretion, however, must be exercised having regard to the interests of justice, which includes being fair to the accused (per Lord Parker CJ in Oliva v. R [1965] 2 WLR 1028, 1035) and to call witnessess essential to the unfolding of the narrative on which the prosecution case is based, whether the effect of their testimony is for or against the prosecution (per Lord Roche in the Ceylon Privy Council case of Seneviratne v. R [1936] 3 All E.R 36, at 49, applied in R. v. Nugent [1976] 65 Cr. App. R. 40).” [41] Perkara ini turut dinyatakan di dalam kes Teh Lee Tong v. Rex [1951] 2 LNS 96. [42] Di dalam kes di hadapan Mahkamah ini, Mahkamah mendapati Hariharan adalah seorang saksi yang amat penting namun Pendakwaan gagal memanggilnya untuk memberi keterangan menyebabkan wujudnya kelompangan di dalam kes Pendakwaan. Kehadirannya ke Mahkamah untuk memberi keterangan bagi pihak Pendakwaan berupaya menutup kelompangan tersebut. Malahan, dia mampu menjawab apa-apa kemusykilan yang menyelubungi pihak Pembelaan tentang apa yang sebenarnya berlaku pada hari kejadian kerana dia ditangkap bersama pada hari kejadian dan S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 melihat apa yang berlaku pada masa kejadian. Dia adalah saksi mata. Dia juga berupaya menjelaskan siapakah pemilik sebenar dadah-dadah tersebut yang tidak mampu dijawab oleh SP2. Rakaman percakapannya telah turut dirakamkan. [43] Kegagalan Pendakwaan untuk memastikan kehadirannya (secure his attendance) dengan membuat satu tahanan sivil atau apa-apa cara mengikut prosidur KAJ contohnya dilepaskan dengan bon jaminan (lihat Seksyen 118 KAJ) supaya dia hadir memberi keterangan pada tarikh bicara, adalah amat fatal. Tidak pula pihak Pendakwaan menjelaskan secara terperinci kenapa tindakan sedemikian tidak diambil walhal Pendakwaan sedia maklum bahawa dia adalah warganegara India dan selepas dibebaskan oleh Mahkamah Majistret dan tidak dituduh di Mahkamah Tinggi, sudah pastinya dia akan melarikan diri. [44] Suresh @ Fire telah turut dirakamkan percakapannya di bawah Seksyen 112 Kanun Acara Jenayah seperti di ID 45. [45] Namun, Suresh juga tidak dipanggil memberi keterangan. Tidak pula Pendakwaan menerangkan kenapa dia tidak hadir memberi keterangan dan jika tidak dapat dikesan, apakah usaha-usaha yang telah dilakukan untuk mengesannya. SP1 dan SP2 bersetuju Suresh @ Fire ini adalah saksi penting dan telah memberi keterangan bahawa Suresh @ Fire ini telah ditahan untuk kesalahan dadah selang beberapa hari selepas OKT 1 dan OKT 2 ditangkap. Di atas S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 kegagalan ini inferensi bertentangan perlu dikenakan terhadap pihak Pendakwaan. Wujudnya beg misteri berwarna pink yang di bawa oleh anggota serbuan yang melemahkan lagi kes Pendakwaan dan amat fatal [46] Semasa di dalam pemeriksaan balas, SP2 bersetuju bahawa beliau tidak langsung menyebut mengenai terdapatnya satu (1) beg plastik warna pink telah di bawa bersama oleh pasukan serbuan semasa serbuan dan tangkapan terhadap Hariharan dan kedua-dua Tertuduh dibuat. Beg pink ini tidak pernah dinyatakan oleh SP2 semasa memberi keterangan semasa pemeriksaan utama. Begitu juga SP3. Ianya juga tidak menjadi sebahagian daripada eksibit yang dikemukakan oleh pihak Pendakwaan [sila lihat gambar-gambar eksibit P34 (1-5)]. Malahan ianya tidak juga dinyatakan di dalam Borang Serah Menyerah (P21) dan Borang Geledah (P20). SP2 bersetuju beg ini memang wujud dan di bawa naik ke unit tempat kejadian (16-4) semasa serbuan. Apa kandungan dan tujuan menjadi tanda tanya. Perkara ini hanya timbul ketika di soal balas oleh Peguambela OKT 2 terhadap SP2 seperti berikut: “PBT2 : Masa tangkapan di lobi dibuat, tuan ada ...tuan dan team tuan ada satu beg pink. SP2 : Setuju. S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 PBT2 : Dan beg ini dibawa naik atas ke tingkat 16-4 ke dalam unit tersebut, setuju? SP2 : Setuju. PBT2 : Apa kandungan beg itu memang tak ada sebarang bukti di mahkamah hari ini, setuju? SP2 : Setuju.” [47] Mahkamah memutuskan ini adalah satu “serious suppression of evidence” dan anggapan bertentangan perlu dikenakan terhadap pihak Pendakwaan di bawah Seksyen 114 (g) Akta Keterangan. Ianya telah juga mengakibatkan kelompangan di dalam kes Pendakwaan dan juga telah menimbulkan satu keraguan yang munasabah. [48] Malahan, pihak Pembelaan telah mencadangkan/menyarankan bahawa beg pink tersebut telah digunakan oleh pasukan serbuan untuk membawa dadah-dadah tersebut (dari luar) dan diletakkan di tempat kejadian seolah-olah dadah-dadah tersebut memang dijumpai di Bilik Utama unit/rumah tersebut seperti keterangan. Di dalam ertikata lain, dadah-dadah ini telah di“planted”. Cadangan/saranan ini adalah serius kerana ia juga memberi kesan serius terhadap kredibiliti dan reliabiliti keterangan-keterangan yang diberikan SP2 khususnya dan SP3, Mahkamah berpendapat cadangan/saranan ini tidak boleh diketepikan begitu sahaja kerana S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 mungkin ada kebenarannya memandangkan Pendakwaan gagal memanggil saksi-saksi lain, khususnya Hariharan untuk memberi gambaran yang sebenar, ataupun saksi-saksi Polis lain dari kalangan anggota serbuan untuk mematahkan saranan atau cadangan tersebut. Tanpa memanggil Hariharan khususnya, cadangan/saranan bahawa dadah-dadah tersebut adalah di“planted” tidak berjaya dipatahkan Pendakwaan sedangkan SP2 bersetuju bahawa jika Hariharan datang memberi keterangan dia boleh memberi penjelasan lanjut dan mengesahkan versi mana yang benar. Tiada usaha di buat untuk mendapatkan rakaman CCTV dan tiada Buku Pelawat dirampas [49] Adalah tidak dipertikaikan, di zaman moden ini di mana-mana ceruk bangunan mewah sekarang ini akan dipantau oleh alat-alat CCTV. Jika ada kejadian jenayah berlaku, keterangan melalui rakaman CCTV in merupakan keterangan terus (direct) yang paling berkesan. Banyak kes-kes jenayah dapat diselesaikan atau pesalah-pesalah berjaya di bawa ke muka pengadilan melalui rakaman CCTV. Ini diakui oleh Pegawai Serbuan, SP2 di dalam kes ini. [50] SP2 bersetuju bahawa adalah tidak dipertikaikan bahawa identiti kesemua orang yang mempunyai akses ke unit/rumah berkenaan adalah penting dalam kes pengedaran dadah. Sekiranya rakaman CCTV dan Buku Pelawat dirampas dan disiasat, maka persoalan S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 mengenai siapa yang keluar dan masuk ke unit/rumah tersebut sememangnya boleh dijawab. [51] Pembelaan menyarankan bahawa kegagalan Polis (SP2 dan SP3) untuk merampas rakaman CCTV dan Buku Pelawat untuk di bawa ke Mahkamah memprejudiskan kedua-dua OKT dan inferens bertentangan di bawah Seksyen 114 (g) Akta Keterangan perlu dikenakan terhadap pihak Pendakwaan. [52] Namun, SP2 telah gagal merampas rakaman-rakaman CCTV sama ada di dalam lif, di Lobi mahupun di Tingkat 16 tersebut sedangkan SP2 mempunyai kuasa di bawah Seksyen 64 dan 65 KAJ untuk berbuat sedemikian. [53] Berikut adalah sedutan sebahagian keterangan SP2 mengenai rakaman CCTV semasa disoal balas oleh Peguam OKT 2: “PBT2 : Kalau kita nampak CCTV kita boleh tengok siapa yang keluar masuk tingkat 16, setuju? SP2 : Sekiranya pintu depan rumah dia ada CCTV kita boleh rujuk. PBT2 : Ok, di bahagian lif kalau ada CCTV tingkat 16 kita boleh tahu siapa turun siapa masuk, setuju? SP2 : Sekiranya ada CCTV ya, betul. S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 PBT2 : Sekiranya ada CCTV, ok. Di bahagian lobi juga kalau ada CCTV kita boleh tahu identiti-identiti siapa naik turun, setuju? SP2 : Setuju. PBT2 : Dan, identiti mereka boleh.... boleh dikenal pasti dengan rampasan buku pelawat ataupun rampasan rakaman CCTV, boleh didapatkan. Setuju? SP2 : Setuju.” [54] SP3, sebagai Pegawai Penyiasat tidak juga merampas kedua- duanya selepas kejadian. Di dalam kes Tan Teck Seng & Anor v. PP [1990] 2 CLJ 103 yang dirujuk pihak Pembelaan, Mahkamah memutuskan: “[58] Learned counsel for the appellants submitted had the visitors’ registration book and the CCTV recording been tendered in court, it would reveal the persons who had entered the said apartment and would be able to exclude Udang, Boy, Efa, Nazir and all the first appellant’s workers. [59] In our view, there is force in the submission. The visitors’ registration book and the CCTV recording could clear the doubt whether others have access to the said apartment. Had the visitors’ S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 registration book and CCTV recording been produced, the learned trial judge would be in better position to verify to prosecution’s case. [60] The non-production of the visitors’ registration book and CCTV recording, in our view, amounted to a withholding or suppression of evidence and if 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. (See Kek Chuan v. PP [2013] 6 CLJ 98).” [55] Di dalam kes See Kek Chuan v. PP [2013] 6 CLJ 98 yang dirujuk oleh pihak Pembelaan, Mahkamah Rayuan memutuskan: “[113] For completeness I should also refer to pertinent passages from an earlier Court of Appeal decision in See Kek Chuan v. PP [2013] 6 CLJ 98 which is referred to by the defence in its written submissions, which examined the issue of the making available of CCTV recording, as follows: “[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 S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 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 focussed 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. [33] In our judgment, 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.” [56] Di dalam kes Mahkamah Rayuan, See Kek Chuan v. PP (supra), Mahkamah Rayuan berpandangan dengan tiadanya CCTV dirampas, maka wujudlah keadaan seperti berikut, sama seperti di dalam kes ini: S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 “[114] Further, the investigating officer (PW9) admitted in evidence during cross-examination that he did not know how many people had entered and left the condominium unit before the arrest, he could not identify who brought the drugs into the condominium unit and even agreed that there existed a possibility that any one of the five individuals could have been responsible to have placed the drugs in the condominium unit.” [57] Masalah di atas boleh diatasi dengan merampas rakaman CCTV, Buku Pelawat dan pemantauan sebelum kejadian, yang gagal dilakukan oleh pihak Polis. Malahan, misteri beg plastik pink yang dicadangkan/disarankan oleh Pembelaan sebagai beg yang mengandungi dadah yang di bawa naik oleh pasukan serbuan dan diletakkan di Bilik Utama akan terjawab. Keraguan sama ada Unit/Rumah mempunyai tiga (3) Bilik atau lima (5) Bilik [58] Pihak Pembelaan telah mempertikaikan rajah kasar (P27) yang menunjukkan unit/rumah tersebut mempunyai tiga (3) bilik sahaja seperti jawapan SP2 dan SP3 sedangkan mengikut Pembelaan, sebenarnya unit/rumah tersebut mempunyai lima (5) bilik yang turut didiami oleh beberapa penghuni lain iaitu Suresh @ Fire, David seorang keturunan Pakistan dan Raj, seorang lelaki beragama Hindu dari Indonesia. SP2 dan SP3 tidak bersetuju tentang saranan ini, menyebabkan pihak Pembelaan mencabar dan membuat permohonan supaya Mahkamah melawat tempat kejadian untuk S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 36 memastikan jumlah bilik sebenar bagi unit/rumah tersebut. Permohonan ini dibantah dengan keras oleh TPR. [59] Mahkamah memutuskan bahawa memadangkan TPR sendiri membantah permohonan ini, Pendakwaan sepatutnya memberi pencerahan mengenai isu ini dengan secara alternatifnya memanggil saksi-saksi yang berkenaan iaitu sama ada tuan punya unit/rumah tersebut iaitu Encik Birendra Chhetri atau mana-mana AJK Management Corporation Kondominium tersebut untuk mengesahkan mengenai hal ini. Dengan kegagalan TPR sedemikian, persoalan sama ada unit/rumah tersebut mempunyai tiga (3) bilik atau lima (5) bilik tidak dapat dipastikan. Pihak Pembelaan berpendirian memang terdapat lima (5) bilik di unit/rumah tersebut yang mana selain daripada kedua-dua OKT, Hariharan, Suresh @ Fire, David dan Raj turut mendiami di unit/rumah tersebut yang memungkinkan dadah-dadah tersebut adalah milikan mereka. Justeru Mahkamah memutuskan kegagalan memanggil saksi-saksi ini mengundang inferensi bertentangan dikenakan terhadap Pendakwaan di bawah Seksyen 114 (g) Akta Keterangan. Kelemahan lain di dalam siasatan Polis [60] Terdapat beberapa kelemahan lain di dalam siasatan Polis bagi kes ini, yang menunjukkan siasatan yang tidak menyeluruh. Mahkamah telah menekankan bahawa siasatan yang menyeluruh dan adil oleh Pegawai Penyiasat adalah penting bagi setiap kes. Di dalam kes PP S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 37 v. Syed Afif Fikri Syed Abu Hussin [2020] 1 LNS 863, Mahkamah menyatakan: “Selanjutnya saya ingin mengulas berkenaan isu penyiasatan kes, khususnya mengenai tindakan SP6 selaku Pegawai Penyiasat kes. Diakui bahawa kekuatan sesuatu kes itu adalah bergantung sepenuhnya kepada hasil siasatan yang dijalankan disertakan dengan lain-lain bahan bukti. Untuk hasil penyiasatan yang baik, pastinya memerlukan suatu corak penyiasatan yang lengkap dijalankan. Di dalam soal ini, peranan seorang Pegawai Penyiasat kes amatlah penting. Perlu dilihat akan apakah aspek siasatan yang telah dilakukan sama ada ianya suatu penyiasatan yang benar-benar menyeluruh ataupun tidak. Mengkaji serta meneliti akan keseluruhan tugasan penyiasatan yang telah dijalankan oleh Pegawai Penyiasat kes ini, iaitu SP6, penyiasatan yang dilakukan olehnya bolehlah diibaratkan penyiasatan yang tidak menyeluruh. Cara dan corak siasatan yang dijalankan oleh Pegawai Penyiasat Kes ini tidak begitu kemas. Meneliti kepada Penyiasatan yang dilakukan, didapati corak penyiasatannya adalah tidak dilakukan secara menyeluruh… Sekiranya “finger dusting” ada dilakukan dan hasilnya dikemukakan di Mahkamah, ia mungkin dapat menunjukkan cap jari pemilik sebenar. Analisa cap jari merupakan satu-satunya keterangan bebas yang dapat membantu kes pendakwaan untuk menentukan siapa pemilik S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 38 sebenar plastik P7A dan P7B serta 24 peket plastik dadah-dadah tersebut. Oleh itu, SP6 sepatutnya melakukan siasatan yang lebih mendalam.” [61] Di dalam kes ini, lima (5) buah telefon bimbit telah dirampas yang mana tidak dimasukkan di dalam gambar dan juga tidak dikemukakan di dalam Mahkamah. Adalah wajar kelima-lima telefon ini perlu dihantar untuk dianalisa khususnya mengenai kandungannya oleh pihak Suruhanjaya Komunikasi dan Multimedia Malaysia (MCMC) atau/dan juga Bahagian Forensik PDRM. Ini adalah penting kerana hasil dari penganalisaan kandungan tersebut mampu menunjukkan keterangan yang selain dari memihak kepada Pendakwaan ada kemungkinan juga ianya memihak kepada pihak Pembelaan juga. Justeru Tertuduh-Tertuduh dinafikan hak mereka untuk mendapatkan pengadilan yang adil. Di dalam kes Yahya Hussein Mohsen Abdulrab v. PP [2021] 9 CLJ 414, Mahkamah memutuskan “the failure to produce the handphone had denied the accussed of a fair trial.”. [62] Walaupun terdapat beberapa kekurangan lain di dalam kes Pendakwaan, adalah memadai bagi Mahkamah menyandarkan keputusan Mahkamah dengan kekurangan-kekurangan di atas. Adalah undang-undang mantap bahawa apa-apa kekurangan (infirmities) yang terdapat di dalam kes Pendakwaan, manfaat ini perlu diberikan kepada pihak Pembelaan. (Lihat kes Mahkamah Rayuan di dalam kes Mohamad Abdul Rahman v. PP [2013] 7 CLJ 843). S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 39 H. KESIMPULAN [63] Mengambil kira segala keterangan-keterangan yang telah dikemukakan oleh Pendakwa Raya dan mengambil kira jawapan soal balas oleh Peguam kedua-dua Tertuduh dari saksi-saksi Pendakwaan khususnya SP2 dan SP3, serta cadangan-cadangan yang diajukan pihak-pihak Tertuduh dan mengambil kira kekurangan- kekurangan yang terdapat di dalam kes Pendakwaan hingga menyebabkan intipati-intipati kesalahan (khususnya milikan) telah gagal dibuktikan bagi maksud menentukan sama ada satu kes prima facie telah berjaya dibuktikan Pendakwaan, dengan menggunakan kaedah “maximum evaluation” maka satu persoalan telah diajukan oleh Mahkamah seperti kehendak kes PP v. Mohd Radzi bin Abu Bakar (supra) seperti berikut: “Jika sekarang Mahkamah memanggil kedua-dua tertuduh untuk membela diri dan mereka memilih untuk berdiam diri, adakah Mahkamah bersedia untuk mendapati mereka bersalah di atas keterangan-keterangan yang sedia ada di hadapan Mahkamah?” [64] Jawapan Mahkamah adalah tidak (negative). Justeru, Mahkamah memutuskan bahawa satu kes prima facie telah gagal dibuktikan Pendakwa Raya dan kedua-dua Tertuduh dilepas dan dibebaskan tanpa mereka dipanggil untuk membela diri. S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 40 Tarikh: 30 Oktober 2023 (DATO’ AHMAD BIN BACHE) Hakim Mahkamah Tinggi Jenayah 1 Kuala Lumpur. Pihak-Pihak Pendakwa Raya: Tuan Mohd Isa bin Mohamed Timbalan Pendakwa Raya Kamar Peguam Negara Aras 5, No. 45, Lot 4G7, Presint 4 Persiaran Perdana 62100 PUTRAJAYA Peguam Responden Encik Saha Deva Pertama: Tetuan Saha & Associates Suite 203, 2nd Floor Wisma Bandar No. 18 Jalan Tunku Abdul Rahman 50100 KUALA LUMPUR Peguam Responden Dato’ Sheelan Kedua: Tetuan Sheelan Arjunan D-2-23, Block D, Putra Makestik Jalan Kasipillay 51200 KUALA LUMPUR S/N LgCNBQCY90WcJLI02SxyUQ **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

BA-22NCvC-283-06/2018

PLAINTIF 1. ) SMOOTH ACHIEVEMENT SDN BHD 2. ) CHONG KIM FOO 3. ) HYPER INDUSTRIAL AUTOMOTIVE SDN BHD 4. ) KUA SWEE KIAT 5. ) KUA SWEE KEONG 6. ) SWISSMA BUILDING TECHNOLOGIES SDN BHD 7. ) PLY-MART SDN BHD DEFENDAN 1. ) CEKAL UNGGUL SDN BHD 2. ) JURUTERA PERUNDING PRIMAREKA SDN BHD

PERJANJIAN JUAL BELI: Isu-isu yang perlu diputuskan mahkamah - sama ada Defendan 1 melanggar terma PJB dalam menyerahkan milikan kosong hartanah tersebut kepada Plaintif-Plaintif - sama ada penyerahan milikan kosong hartanah tersebut tertakluk kepada penyiapan keseluruhan Infrastruktur Berkenaan - sama ada pengeluaran CPC oleh Defendan 2 mematuhi terma PJB i.e. Infrastruktur Berkenaan telah disiapkan - sama ada Plaintif-Plaintif berhak menuntut LAD kepada dakwaan kelewatan penyerahan milikan kosong - sama ada Defendan 1 berhak kepada tuntutan balas terhadap Plaintif-Plaintif bagi faedah kelewatan bayaran progresif.

21/11/2023

YA Dato' Roslan Bin Abu Bakar

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Microsoft Word - BA-22NCVC-283-06-2018 1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA GUAMAN SIVIL NO: BA-22NCVC-283-06/2018 ANTARA 1) SMOOTH ACHIEVEMENT SDN BHD 2) CHONG KIM FOO 3) HYPER INDUSTRIAL AUTOMOTIVE SDN BHD 4) KUA SWEE KIAT 5) KUA SWEE KEONG 6) SWISSMA BUILDING TECHNOLOGIES SDN BHD 7) PLY-MART SDN BHD … PLAINTIF DAN 1) CEKAL UNGGUL SDN BHD 2) JURUTERA PERUNDING PRIMA REKA SDN BHD … DEFENDAN DAN DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA GUAMAN SIVIL NO: BA-22NCVC-284 06/2018 ANTARA 1) CHUA TONG HIN HARDWARE SDN BHD 2) RECTECH RESOURCES SDN BHD … PLAINTIF DAN 1) CEKAL UNGGUL SDN BHD 2) JURUTERA PERUNDING PRIMA REKA SDN BHD … DEFENDAN PENGHAKIMAN Pengenalan [1] Kedua-dua kes telah digabungkan dan dibicarakan bersama atas permohonan dan perintah mahkamah bertarikh 12.12.2018 kerana melibatkan isu, fakta dan Defendan-Defendan yang sama. Tuntutan utama Plaintif-Plaintif dalam kedua-dua kes ini adalah untuk suatu 21/11/2023 11:18:00 BA-22NCvC-283-06/2018 Kand. 150 S/N XvDZWJ29rEWItSSQBDUvTw **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 perintah pelaksanaan spesifik bahawa Perjanjian Jual Beli yang ditandatangani antara Plaintif-Plaintif dengan Defendan 1 (bagi kedua-dua kes) supaya Defendan 1 menyerahkan milikan kosong hartanah-hartanah berkenaan bersama dengan infrastruktur selaras dengan Klausa 11 perjanjian berkenaan dan juga tuntutan lewat menyerahkan milikan kosong (liquidated ascertained damages dan selepas ini dipanggil “LAD”). [2] Tuntutan terhadap Defendan 2 pula adalah kerana kecuaian dalam mengeluarkan Certificate of Practical Completion (selepas ini dipanggil “CPC”) terutamanya semasa Peringkat 4 dan 5. [3] Defendan 1 juga memfailkan tuntutan balas terhadap Plaintif-Plaintif untuk faedah dan pembayaran lewat pembelian lot-lot hartanah berkenaan. [4] Bagi kes BA-22NCVC-283-06/2018 (selepas ini dipanggil “Kes 283”) pihak-pihak adalah seperti berikut: [5] Plaintif 1 adalah sebuah syarikat sendirian berhad yang ditubuhkan di bawah Akta Syarikat 1965 dan mempunyai alamat perniagaannya di No. 25, Lakeview Saujana, Persiaran Golf, Seksyen U2, Shah Alam, Selangor dan merupakan pembeli lot hartanah industri dari Defendan 1. [6] Plaintif 2 adalah individu warga negara Malaysia dan beralamat di Lot 3, Jalan 5, Cheras Jaya Industrial Estate, Balakong, Selangor dan merupakan pembeli lot hartanah industri dari Defendan 1. (Plaintif 2 ini telah menarik balik tuntutan terhadap Defendan- Defendan). [7] Plaintif 3 adalah juga sebuah syarikat sendirian berhad yang ditubuhkan di bawah Akta Syarikat 1965 dan mempunyai alamat perniagaannya di No. 25, Persiaran Industri, Bandar Sri Damansara, Kuala Lumpur dan merupakan pembeli lot hartanah industri dari Defendan 1. [8] Plaintif 4 dan Plaintif 5 adalah individu-individu warga negara Malaysia dan beralamat di Lot 6093, Jalan Haji Abdul Manan, 5 ½ Mile off Jalan Meru, Selangor dan merupakan pembeli lot hartanah industri dari Defendan 1. S/N XvDZWJ29rEWItSSQBDUvTw **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 [9] Plaintif 6 adalah sebuah syarikat sendirian berhad yang ditubuhkan di bawah Akta Syarikat 1965 dan mempunyai alamat perniagaannya di Jalan Utas 15/7, Shah Alam Industrial Estate, P.O. Box 7053, Shah Alam, Selangor dan merupakan pembeli lot hartanah industri dari Defendan 1. [10] Plaintif 7 adalah juga sebuah syarikat sendirian berhad yang ditubuhkan di bawah Akta Syarikat 1965 dan mempunyai alamat perniagaannya di Lot 831, Jalan Haji Sirat, Klang, Selangor dan merupakan pembeli lot hartanah industri dari Defendan 1. [11] Manakala Defendan 1 adalah juga sebuah syarikat sendirian berhad yang ditubuhkan di bawah Akta Syarikat 1965 dan mempunyai alamat berdaftarnya di No. 1, Worldwide @ 7, Lot 24, Jalan Lazuadi 7/29, Seksyen 7, Shah Alam, Selangor. Syarikat ini adalah pemaju suatu projek pembangunan yang dikenali sebagai Worldwide i-Zone (selepas ini dipanggil “Projek Berkenaan”) dan menjual lot-lot hartanah industri kepada Plaintif-Plaintif. [12] Defendan 2 adalah syarikat jurutera perunding dan mempunyai alamat berdaftarnya di No. 20-M, Lorong Gopeng, Klang, Selangor dan bertanggungjawab dalam mengesahkan penyempurnaan kerja-kerja Defendan 1 bagi tujuan tuntutan pembayaran progresif mengikut jadual dari Plaintif-Plaintif. [13] Bagi kes BA-22NCVC-284-06/2018 (selepas ini dipanggil “Kes 284”) pihak-pihak adalah seperti berikut: [14] Plaintif 1 adalah sebuah syarikat sendirian berhad yang ditubuhkan di bawah Akta Syarikat 1965 dan mempunyai alamat perniagaannya di No. 16, Jalan 3/37A, Kawasan Industri Taman Bukit Maluri, Kepong, Kuala Lumpur dan merupakan pembeli lot hartanah industri dari Defendan 1. [15] Plaintif 2 adalah juga sebuah syarikat sendirian berhad yang ditubuhkan di bawah Akta Syarikat 1965 dan mempunyai alamat perniagaannya di No. 53, Jalan 17, Desa Jaya Kepong, Kepong, Kuala Lumpur dan merupakan pembeli lot hartanah industri dari Defendan 1. [16] Defendan 1 dan Defendan 2 adalah pihak-pihak yang sama seperti dalam Kes 283. S/N XvDZWJ29rEWItSSQBDUvTw **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 Fakta [17] Plaintif-Plaintif dalam kedua-dua kes telah menandatangani suatu Perjanjian Jual Beli (selepas ini dipanggi “PJB”) dengan Defendan 1 untuk pembelian tanah perindustrian yang terletak di Projek Berkenaan seperti berikut: Kes 283 (i) Plaintif 1 menandatangani PJB pada 12.12.2012 untuk membeli Lot 14-A dengan harga RM3,959,268.30. (ii) Plaintif 2 menandatangani PJB pada 12.12.2012 untuk membeli Lot 38-B dengan harga RM5,075,216.65. (iii) Plaintif 3 menandatangani PJB pada 12.12.2012 untuk membeli Lot 28-B dengan harga RM3,265,426.80. (iv) Plaintif 4 dan 5 menandatangani PJB pada 9.10.2013 untuk membeli Lot 35-A dengan harga RM3,507,420. (v) Plaintif 4 dan 5 menandatangani PJB pada 9.10.2013 untuk membeli Lot 36-B dengan harga RM3,266,308.50. (vi) Plaintif 6 menandatangani PJB pada 18.12.2013 untuk membeli Lot 21-A dengan harga RM3,193,652. (vii) Plaintif 6 menandatangani PJB pada 18.12.2013 untuk membeli Lot 22-A dengan harga RM3,193,652. (viii) Plaintif 7 menandatangani PJB pada 17.7.2014 untuk membeli Lot 18-A dengan harga RM3,533,017.20. (ix) Plaintif 7 menandatangani PJB pada 17.7.2014 untuk membeli Lot 19-A dengan harga RM3,533,017.20. Kes 234 (i) Plaintif 1 menandatangani PJB pada 29.4.2014 untuk membeli Lot 40-B dengan harga RM4,810,585.80. (ii) Plaintif 1 menandatangani PJB pada 29.4.2014 untuk membeli Lot 14-B dengan harga RM4,355,078. (iii) Plaintif 2 menandatangani PJB pada 29.14.2014 untuk membeli Lot 32-B dengan harga RM4,355,078. [18] Plaintif-Plaintif membayar deposit 10% dari harga pembelian setiap lot hartanah semasa menandatangani PJB. Baki harga pembelian diperolehi dari bank dan pihak bank telah membayar dari masa ke semasa bayaran progresif kepada Defendan 1 berdasarkan pengesahan penyempurnaan kerja oleh Defendan 2 mengikut Jadual 4 PJB. S/N XvDZWJ29rEWItSSQBDUvTw **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 [19] Antara terma-terma PJB yang dipersetujui kedua-dua pihak adalah: (i) pembayaran harga pembelian hartanah tersebut perlu dibayar secara progresif berdasarkan Jadual 4 setelah Defendan 2 mengesahkan peringkat penyiapan kerja oleh Defendan 1 di Projek Berkenaan (Jadual 4 dan Klausa 3 PJB). (ii) Defendan 1 wajib menyediakan, menyiapkan dan meletakan semua kabel dan trunking air, elektrik, pembentungan dan telefon hingga ke sempadan hartanah tersebut (selepas ini dipanggil “Infrastruktur Berkenaan”) (Klausa 11 PJB). (iii) Defendan 1 wajib menyerahkan milikan kosong hartanah tersebut yang lengkap dengan Infrastruktur Berkenaan kepada Plaintif-Plaintif dalam tempoh 18 bulan dari Perintah Pembangunan diperolehi dengan perlanjutan masa 6 bulan secara automatik sekiranya masih menunggu kelulusan dari pihak berkuasa atau menunggu keputusan rayuan penolakan permohonan kelulusan dari pihak berkuasa (Klausa 5 PJB). Bagi Plaintif 6, 7 dan 8 dalam Kes 283, tempoh penyerahan milikan kosong adalah 24 bulan. (iv) Defendan 1 bertanggungjawab membayar LAD (gantirugi yang telah ditentukan) kepada Plaintif-Plaintif dengan kadar yang dipersetujui (Klausa 5.3 PJB) iaitu 8% setahun ke atas harga pembelian yang dikira dari tarikh luput penyerahan milikan kosong (Klausa 5 PJB). [20] Plaintif-Plaintif mendakwa Defendan 1 telah gagal melaksanakan kewajipan untuk menyediakan dan melengkapkan Infrastruktur Berkenaan berdasarkan peruntukan Klausa 11 PJB. Manakala Defendan 1 pula dalam tuntutan balasnya mendakwa terdapat kelewatan oleh Plaintif-Plaintif dalam pembayaran progresif hartanah berkenaan dan menuntut bayaran tersebut bersama faedah. Isu [21] Isu-isu yang perlu diputuskan mahkamah adalah: (i) sama ada Defendan 1 melanggar terma PJB dalam menyerahkan milikan kosong hartanah tersebut kepada Plaintif-Plaintif. (ii) sama ada penyerahan milikan kosong hartanah tersebut tertakluk kepada penyiapan keseluruhan Infrastruktur Berkenaan. S/N XvDZWJ29rEWItSSQBDUvTw **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 (iii) sama ada pengeluaran CPC oleh Defendan 2 mematuhi terma PJB i.e. Infrastruktur Berkenaan telah disiapkan. (iv) sama ada Plaintif-Plaintif berhak menuntut LAD kepada dakwaan kelewatan penyerahan milikan kosong. (v) sama ada Defendan 1 berhak kepada tuntutan balas terhadap Plaintif-Plaintif bagi faedah kelewatan bayaran progresif. Penelitian dan penemuan mahkamah [22] Dalam perbicaraan kedua-dua kes ini, seramai 11 orang saksi memberikan keterangan bagi pihak Plaintif-Plaintif, 4 orang bagi pihak Defendan 1 dan seorang bagi pihak Defendan 2. [23] Tuntutan terhadap Defendan 1 iaitu pemaju Projek Berkenaan dalam Kes 283 dan Kes 284 adalah kegagalan menyiapkan Infrastruktur Berkenaan dan melanggar terma PJB (Klausa 11.2) sebelum menyerahkan milikan kosong hartanah berkenaan kepada Plaintif-Plaintif. [24] Manakala tuntutan terhadap Defendan 2 pula adalah kerana kecuaiannya dalam mengeluarkan CPC bertarikh 7.9.2015 (muka surat 11, Common Bundle “D”) dan 30.9.2015 (muka surat 12, Common Bundle “D”) untuk kerja-kerja bagi Peringkat 4 dan 5 seperti yang diperuntukan di bawah Jadual 4 PJB. [25] Pertikaian antara Plaintif-Plaintif dan Defendan-Defendan bermula apabila dua keping CPC berkenaan dikeluarkan oleh Defendan 2 kepada Defendan 1 yang mengesahkan kerja-kerja Infrastruktur Berkenaan atas hartanah yang dibeli Plaintif-Plaintif dalam Projek Berkenaan telah disiapkan dan ini membolehkan Defendan 2 memberikan milikan kosong dan menjadikan Plaintif-Plaintif berkewajipan membayar baki harga belian hartanah-hartanah tersebut. [26] Pertikaian utama yang ditimbulkan Plaintif-Plaintif adalah bahawa Defendan 1 telah gagal menyiapkan kerja Infrastruktur Berkenaan iaitu: (i) kabel elektrik tidak diletakan hingga ke sempadan hartanah Plaintif-Plaintf. (ii) sub-stesyen TNB tidak berfungsi. (iii) telephone trunking tidak diletakan. (iv) rumah pam tidak berfungsi. S/N XvDZWJ29rEWItSSQBDUvTw **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 [27] Pertikaian tersebut telah menimbulkan beberapa isu (bagi kedua- dua kes) yang perlu diputuskan mahkamah dalam perbicaraan ini seperti berikut: (i) sama ada Defendan 1 melanggar terma PJB untuk menyerahkan milikan kosong hartanah tersebut kepada Plaintif-Plaintif [28] Dari dokumen-dokumen contemporaneous yang dikemukakan adalah didapati Defendan 2 dilantik oleh Defendan 1 sebagai seorang perunding sivil dan struktur (civil and structural consultant) untuk Projek Berkenaan. Tugas Defendan 2 adalah untuk mengawasi pelaksanaan kerja-kerja struktur sivil seperti yang dikehendaki oleh pihak berkuasa berkaitan dan mengesyorkan kepada pihak berkuasa berdasarkan kepada Perintah Pembangunan yang telah diluluskan i.e. seperti yang termaktub dalam plan lukisan. [29] Kewajipan Defendan 2 juga adalah untuk mengesahkan kerja-kerja Infrastruktur Berkenaan atas hartanah yang dibeli Plaintif-Plaintif dalam Projek Berkenaan telah disiapkan dan ini membolehkan Defendan 2 memberikan milikan kosong dan menjadikan Plaintif- Plaintif berkewajipan membayar baki harga belian hartanah- hartanah tersebut. [30] Kerja-kerja struktur sivil adalah merangkumi: (a) kawasan terbuka (b) kolam takungan air (c) tempat parkir kenderaan berat (d) asrama pekerja (e) surau (f) pencawang elektrik double chamber (g) stesyen suis utama (h) pencawang rumah (i) simpanan parit (j) simpanan jalan [31] Berdasarkan kepada skop kerja, saya mendapati Defendan 1 telah membina struktur-struktur sivil berkenaan. Tanggungjawab untuk meletakan kabel elektrik dan melengkapkan sub-stesyen TNB adalah Tenaga Nasional Berhad (selepas ini dipanggil “TNB”) dan bukannya tanggungjawab atau obligasi Defendan 1. S/N XvDZWJ29rEWItSSQBDUvTw **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 Pengesahan ini diberikan oleh SP8 (Mohd Ainuddin bin Md Khairuddin) dan SP9 (Herdawati binti Hussein) yang merupakan pegawai dari TNB sendiri. [32] SP8 dalam keterangannya menyatakan bahawa sebahagian pembeli hartanah industri Projek Berkenaan telah pun dibekalkan dengan bekalan elektrik kerana mereka telah siap membina bangunan atau kilang mereka. Saya berpendapat ini jelas menunjukan Defendan 1 telah mematuhi terma atau Klausa 11.2 PJB. [33] Begitu juga dengan sewerage plants di mana saya mendapati Defendan 1 telah siap membina strukturnya. Keterangan SP6 (Mohd Amin Fadzil) iaitu pegawai dari Indah Water Konsortium (selepas ini dipanggil “IWK”) telah mengesahkan tanggungjawab untuk melengkapkan peralatan kepada sewerage plant adalah kepada IWK dan bukannya kepada pemaju atau pun Defendan 1 dalam kedua-dua kes ini. Berdasarkan kepada keterangan ini saya berpandangan Defendan 1 telah pun menyiapkan struktur sewerage plant dalam Projek Berkenaan dan tugas selanjutnya untuk melengkapkan pengisiannya adalah IWK. [34] Klausa 11.2 PJB memperuntukan: Untuk Plaintif 1, 6 dan 7 dalam Kes 283 dan Plaintif 1 dalam Kes 284 “The vendor shall at its own cost and expense lay or cause to be laid all necessary water, electricity and sewerage mains, and telephone trunking and cabling up to the boundary of the Land in accordance with the recommendation of the Consultant and as approved by the Appropriate Authorities (‘Infrastructures”).” Untuk Plaintif 2, 3, 4 dan 5 dalam Kes 283 “The vendor shall at its own cost and expense lay or cause to be laid all necessary water, electricity and sewerage mains, gas piping (if any) and internal telephone trunking and cabling to serve the building on the Land in accordance with the recommendation of the Consultant, and at its own costs and expense undertake to apply for the connection of internal water, electricity, sanitary and sewerage mains of the Appropriate Authorities, and the gas mains of the relevant authority (‘Infrastructures”).” S/N XvDZWJ29rEWItSSQBDUvTw **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 [35] Berdasarkan kepada peruntukan Klausa 11.2 PJB ini, saya berpendapat adalah menjadi tanggungjawab Defendan 1 untuk meletakan/menyediakan kabel elektrik dan telephone trunking atau memastikan atau menyebabkan sedemikian atas hartanah- hartanah yang dibeli oleh Plaintif-Plaintif sebelum memberikan milikan kosong. Ini bermaksud Defendan 1 mempunyai obligasi untuk membuat permohonan kepada pihak-pihak berkuasa berkenaan seperti TNB, IWK dan Telekom Malaysia untuk meletakan/menyediakan kabel atau trunking berkaitan setelah pembinaan struktur sivil disiapkan. [36] Selain dari itu tanggungjawab Defendan 1 juga adalah untuk memastikan pihak- pihak berkuasa berkaitan telah meletakan kabel atau trunking atau peralatan yang mencukupi terhadap pembinaan struktur sivil tersebut sebelum memberikan milikan kosong kepada Plaintif-Plaintif dalam tempoh yang telah ditetapkan dalam PJB tanpa mengira sama ada Plaintif-Plaintif telah menyiapkan bangunan atau kilang-kilang mereka. [37] Ini sejajar dengan peruntukan Klausa 11.2 PJB yang perlu dibaca dan ditafsirkan berdasarkan kepada perkataan yang digunakan, niat pihak-pihak dan membawa maksud commercial sense. Prinsip- prinsip ini telah diputuskan dalam beberapa kes seperti: SPM Membrane Switch Sdn Bhd v Kerajaan Negeri Selangor [2016] 1 CLJ 177 FC: “Thus, the nub of this appeal is, when one has to choose between two competing interpretations, the one which makes more commercial sense should be preferred if the natural meaning of the words is unclear.” Malaysian Airline System Bhd v Yong Chong Hee & Anor [2010] 3 MLRH 428: “I agree with the appellant’s submission that the wordings or language used in the contract are clear. There is no ambiguity whatsoever. In the circumstances, the court must give effect to the intention of the parties by referring to the words used within the four corner of the agreement only.” S/N XvDZWJ29rEWItSSQBDUvTw **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 Perbadanan Kemajuan Negeri Selangor v Selangor Country Club Sdn Bhd [2017] 1 MLRA 4 CA: “As a general rule, the words of an instrument must be construed to their natural meaning. Where the language of a document is plain and unambiguous and applies accurately to existing facts then the intention of the parties to the document should be gathered from the language of the document itself. No amount of acting by the parties can alter or qualify words which are plain and unambiguous. Accordingly, when a court is called upon to interpret a document, it looks at the language. If the language is clear and unambiguous and applies accurately to existing facts, it shall accept the ordinary meaning, for the duty of the court is not to delve into the intricacies of the human mind to disclose one’s undisclosed intention, but only to take the meaning of the words used by him, that is to say his expressed intentions. It is not for the court to insert an implied term in a contract unless such term is made requisite by necessary implication either from the context of the surrounding circumstances.” Mulpha Pacific Sdn Bhd v Paramount Corporation Bhd [2003] 4 CLJ 294 CA: “The first two issues involve the construction of the contract. I bear in mind the principles of construing a contract. The relevant ones for the purpose of this case are: (1) construction of a contract is a question of law; (2) where the contract is in writing, the intention of the parties must be found within the four walls of the contractual documents; it is not legitimate to have regard to extrinsic evidence (there is, of course, no such evidence in this case); (3) a contract must construed as at the date it was made: it is not legitimate to construe it in the light of what happened years or even days later; (4) the contract must be construed as a whole, and also, so far as practicable, to give effect to every part of it.” [38] Sehubungan itu obligasi Defendan 1 tidak sahaja seperti yang termaktub dalam Perintah Pembangunan tetapi juga kepada terma- terma PJB. [39] Dari penemuan-penemuan ini saya mendapati Defendan 1 telah gagal mematuhi dan melanggar terma-terma dalam PJB. S/N XvDZWJ29rEWItSSQBDUvTw **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 (ii) sama ada penyerahan milikan kosong hartanah tersebut tertakluk kepada penyiapan keseluruhan Infrastruktur Berkenaan [40] Berdasarkan kepada penemuan-penemuan di atas, saya berpendapat Defendan 1 hanya boleh memberikan milikan kosong kepada Plaintif-Plaintif tertakluk kepada siapnya semua kerja Infrastruktur Berkenaan termasuklah kerja-kerja mekanikal dan elektrikal (mechanical and electrical works – M&E). [41] Sebagai tambahan, Klausa 5.4 PJB jelas memperuntukan sedemikian: Klausa 5.4 PJB “The Vendor shall grant the Purchaser the vacant possession of the Land upon the Purchaser having paid all monies payable in accordance with the Fourth Schedule …” (iii) sama ada pengeluaran CPC oleh Defendan 2 mematuhi terma PJB i.e. Infrastruktur Berkenaan telah disiapkan [42] Keterangan menunjukan Defendan 2 telah mengeluarkan kedua- dua CPC (muka surat 11 dan 12, Common Bundle “D”) kepada Defendan 1 yang mengesahkan kerja-kerja sivil dan struktur telah disiapkan. Surat pelantikan Defendan 2 sebagai “Civil Infrastructural Consultant bertarikh 31.10.2016 yang dapat dirujuk di muka surat 1 – 3, Common Bundle “D”). Selanjutnya kewajipan Defendan 1 adalah untuk memastikan juga kerja infrastruktur mekanikal dan elektrikal (M&E) yang dilaksanakan oleh seorang lagi perunding iaitu ILHAM telah siap sebelum Defendan 1 boleh menuntut baki harga jualan dari Plaintif-Plaintif. [43] Sehubungan itu Defendan 2 pada pandangan saya adalah tidak bertanggungan kepada tuntutan Plaintif-Plaintif kerana tiada keterangan yang menunjukan dia bertindak secara cuai dalam mengeluarkan CPC kerana kerja-kerja sivil dan struktur telah disiapkan. [44] Berdasarkan kepada penemuan-penemuan tersebut, tuntutan Plaintif-Plaintif terhadap Defendan 2 tidak dibuktikan dan tuntutan ini ditolak S/N XvDZWJ29rEWItSSQBDUvTw **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 (iv) sama Plaintif-Plaintif berhak menuntut LAD kepada dakwaan kelewatan penyerahan milikan kosong [45] Isu sama ada Plaintif-Plaintif berhak kepada tuntutan LAD atas dakwaan kelewatan penyerahan milikan kosong, saya mendapati memandangkan hartanah-hartanah berkenaan telah pun didaftarkan atas nama Plaintif-Plaintif dan diserahkan dalam tempoh yang dinyatakan dalam PJB, maka sebahagian Plaintif- Plaintif adalah tidak lagi berhak kepada tuntutan LAD. (v) sama ada Defenfan 1 berhak kepada tuntutan balas terhadap Plaintif-Plaintif bagi faedah kelewatan bayaran progresif [46] Defendan 1 berhak membuat tuntutan balas terhadap Plaintif- Plaintif terhadap faedah lewat bayaran progresif. Ini jelas diperuntukan di bawah Klausa 3.2 PJB. Penemuan dan penelitian kepada kes Plaintif (A)Kes 283 (1)Plaintif 1 [47] PJB ditandatangani pada 12.12.2012 (Common Bundle “B” di muka surat 31 – 34). Berdasarkan Klausa 5.1, milikan kosong mesti diserahkan dalam tempoh 18 bulan dari tarikh Perintah Pembangunan diperolehi (i.e. 1.8.2013). Memandangkan terdapat beberapa lagi kelulusan dari pihak berkuasa yang belum diperolehi, di bawah Klausa 5.2, tempoh tersebut secara otomatik dilanjutkan 6 bulan ke 1.2.2015. Dengan persetujuan bersama antara pihak- pihak, tempoh berkenaan dilanjutkan 6 bulan lagi hingga 31.1.2016. Klausa-klausa tersebut memperuntukan: Klausa 5.1 “… vacant possession of the Land shall be delivered to the Purchaser which shall in any event occur within eighteen (18) calendar months from the date of the Development Order in respect of the project is obtained by the Vendor which shall be notified by the Vendor to the Perchaser in writing, and until such delivery of vacant possession, the Vendor shall have exclusive occupation and possession of the Land.” S/N XvDZWJ29rEWItSSQBDUvTw **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 Klausa 5.2 “In the event that vacant possession of the Land is not delivered to the Purchaser within the time stated in Clause 5.1 above by reasons that one or more approvals is or are pending the approval of any Appropriate Authorities or if an application is rejected, an appeal is outstanding, the delivery of vacant possession shall be automatically extended by a futher six (6) months from the delivery of vacant possession and thereafter, it may be further extended by the mutual agreement between the parties, acting reasonably.” [48] Pada 7.10.2015 Defendan 1 mengeluarkan notis memberikan milikan kosong kepada Plaintif 1 dan telah diterima oleh Plaintif 1 tanpa bantahan. Dengan itu milikan kosong telah diberikan dalam tempoh yang dipersetujui. Plaintif 1 kemudiannya membayar baki harga belian hartanah berkenaan dalam tempoh yang ditetapkan dan hartanah berkenaan didaftarkan atas namanya pada 11.4.2016. Tiada keterangan yang dikemukakan di mahkamah semasa perbicaraan bagi menunjukan Plaintif 1 mengalami kerugian dari transaksi ini. [49] Dengan itu saya mendapati Plaintif 1 tidak berhak menuntut LAD dari Defendan 1. (2)Plaintif 3 [50] PJB ditandatangani pada 12.12.2012 (Common Bundle “B” di muka surat 64 – 92). Berdasarkan Klausa 5.1, milikan kosong mesti diserahkan dalam tempoh 18 bulan dari tarikh Perintah Pembangunan diperolehi (i.e. 1.8.2013). Memandangkan terdapat beberapa lagi kelulusan dari pihak berkuasa yang belum diperolehi, di bawah Klausa 5.2, tempoh tersebut secara otomatik dilanjutkan 6 bulan ke 1.2.2015. Dengan persetujuan bersama antara pihak- pihak, tempoh berkenaan dilanjutkan 6 bulan lagi hingga 31.1.2016. [51] Pada 7.10.2015 Defendan 1 mengeluarkan notis memberikan milikan kosong kepada Plaintif 1 dan telah diterima oleh Plaintif 3 tanpa bantahan. Dengan itu milikan kosong telah diberikan dalam tempoh yang dipersetujui. Plaintif 3 kemudiannya membayar baki harga belian hartanah berkenaan dan hartanah berkenaan didaftarkan atas namanya. Tiada keterangan yang dikemukakan di mahkamah semasa perbicaraan bagi menunjukan Plaintif 3 mengalami kerugian dalam transaksi ini. S/N XvDZWJ29rEWItSSQBDUvTw **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 [52] Dengan itu saya mendapati Plaintif 3 tidak berhak menuntut LAD dari Defendan 1. [53] Seterusnya berdasarkan Klausa 3.2 PJB, Plaintif 3 telah gagal membayar bayaran progresif dalam tempoh yang ditetapkan. Dari pengiraan penjaga akaun Defendan 1 (Mohd Noor Adha bin Mohd Sahran dan selepas ini dipanggil “SD3”), Plaintif 3 bertanggungan kepada jumlah yang perlu dibayar kepada Defendan 1 iaitu sejumlah RM82,246.58 dan faedah 5% setahun dari tarikh penghakiman hingga ke tarikh pembayaran penuh dibuat. (3)Plaintif 4 dan 5 [54] Kedua-dua PJB ditandatangani pada 9.10.2013 (Common Bundle “B” di mjka surat 122 – 150). Berdasarkan Klausa 5.1, milikan kosong mesti diserahkan dalam tempoh 18 bulan dari tarikh Perintah Pembangunan diperolehi (i.e. 1.8.2013). Memandangkan terdapat beberapa lagi kelulusan dari pihak berkuasa yang belum diperolehi, di bawah Klausa 5.2, tempoh tersebut secara otomatik dilanjutkan 6 bulan ke 1.2.2015. Tiada persetujuan antara pihak- pihak untuk melanjutkan tempoh berkenaan seterusnya. [55] Pada 7.10.2015 Defendan 1 mengeluarkan notis memberikan milikan kosong kepada Plaintif 4 dan 5 dan telah diterima oleh Plaintif 4 dan 5 tanpa bantahan. Dari kronologi kes dan tarikh-tarikh, saya mendapati milikan kosong telah diberikan setelah tempoh otomatik 6 bulan tamat. Plaintif 4 dan 5 kemudiannya membayar baki harga belian hartanah berkenaan dan hartanah berkenaan didaftarkan atas nama mereka. Tiada keterangan yang dikemukakan di mahkamah semasa perbicaraan bagi menunjukan Plaintif 4 dan 5 mengalami kerugian dalam transaksi berkenaan. [56] Dengan itu saya mendapati Plaintif 4 dan 5 berhak menuntut LAD dari Defendan 1. [57] Seterusnya berdasarkan Klausa 3.2 PJB, Plaintif 4 dan 5 telah gagal membayar bayaran progresif dalam tempoh yang ditetapkan. Dari pengiraan SD3, Plaintif 4 dan 5 bertanggungan kepada jumlah yang perlu dibayar kepada Defendan 1 iaitu sejumlah RM21,655.68 dan faedah 5% setahun dari tarikh penghakiman hingga ke tarikh pembayaran penuh dibuat. S/N XvDZWJ29rEWItSSQBDUvTw **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 (4)Plaintif 6 [58] Kedua-dua PJB ditandatangani pada 18.12.2013 (Common Bundle “B” di muka surat 180 – 208). Berdasarkan Klausa 5.1, milikan kosong mesti diserahkan dalam tempoh 18 bulan dari tarikh Perintah Pembangunan diperolehi (i.e. 1.8.2013). Memandangkan terdapat beberapa lagi kelulusan dari pihak berkuasa yang belum diperolehi, di bawah Klausa 5.2, tempoh tersebut secara otomatik dilanjutkan 6 bulan ke 1.2.2015. Tiada persetujuan pihak-pihak untuk melanjutkan tempoh berkenaan seterusnya. [59] Pada 7.10.2015 Defendan 1 mengeluarkan notis memberikan milikan kosong kepada Plaintif 6 dan telah diterima oleh Plaintif 6 tanpa bantahan. Dari kronologi kes dan tarikh-tarikh berkaitan, saya mendapati milikan kosong telah diberikan setelah tempoh otomatik 6 bulan tamat. Plaintif 6 kemudiannya membayar baki harga belian hartanah berkenaan dan hartanah berkenaan didaftarkan atas namanya. Tiada keterangan yang dikemukakan di mahkamah semasa perbicaraan bagi menunjukan Plaintif 6 mengalami kerugian dalam transaksi berkenaan. [60] Dengan itu saya mendapati Plaintif 6 berhak menuntut LAD dari Defendan 1. [61] Seterusnya berdasarkan Klausa 3.2 PJB, Plaintif 6 telah gagal membayar bayaran progresif dalam tempoh yang ditetapkan. Dari pengiraan SD3, Plaintif 6 bertanggungan kepada jumlah yang perlu dibayar kepada Defendan 1 iaitu sejumlah RM454,088.92 dan faedah 5% setahun dari tarikh penghakiman hingga ke tarikh pembayaran penuh dibuat. (5)Plaintif 7 [62] Kedua-dua PJB ditandatangani pada 17.7.2014 (Common Bundle “C” di muka surat 209 – 237 dan 238 – 266). Berdasarkan Klausa 5.1, milikan kosong mesti diserahkan dalam tempoh 24 bulan dari tarikh PJB ditandatangani. Memandangkan terdapat beberapa lagi kelulusan dari pihak berkuasa yang belum diperolehi, di bawah Klausa 5.2, tempoh tersebut secara otomatik dilanjutkan 6 bulan ke 17.1.2017. Tiada persetujuan kedua-dua pihak untuk melanjutkan tempoh berkenaan seterusnya. S/N XvDZWJ29rEWItSSQBDUvTw **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 [63] Pada 7.10.2015 Defendan 1 mengeluarkan notis memberikan milikan kosong kepada Plaintif 7 dan telah diterima oleh Plaintif 7 tanpa bantahan. Dari kronologi kes dan tarikh-tarikh berkaitan, saya mendapati milikan kosong telah diberikan setelah tempoh otomatik 6 bulan tamat. Plaintif 7 kemudiannya membayar baki harga belian hartanah berkenaan dan hartanah berkenaan didaftarkan atas namanya. Tiada keterangan yang dikemukakan di mahkamah semasa perbicaraan bagi menunjukan Plaintif 7 mengalami kerugian dalam transaksi berkenaan. [64] Dengan itu saya mendapati Plaintif 7 tidak berhak menuntut LAD dari Defendan 1. [65] Seterusnya berdasarkan Klausa 3.2 PJB, Plaintif 7 telah gagal membayar bayaran progresif dalam tempoh yang ditetapkan. Dari pengiraan SD3, Plaintif 7 bertanggungan kepada jumlah yang perlu dibayar kepada Defendan 1 iaitu sejumlah RM598,342.07 dan faedah 5% setahun dari tarikh penghakiman hingga ke tarikh pembayaran penuh dibuat. (A)Kes 284 (1)Plaintif 1 [66] PJB ditandatangani pada 29.4.2014 (Common Bundle “C” di muka surat 267 – 295 dan 296 – 324). Berdasarkan Klausa 5.1, milikan kosong mesti diserahkan dalam tempoh 24 bulan dari tarikh PJB ditandatangani. Memandangkan terdapat beberapa lagi kelulusan dari pihak berkuasa yang belum diperolehi, di bawah Klausa 5.2, tempoh tersebut secara otomatik dilanjutkan 6 bulan ke 29.10.2014. Tiada persetujuan antara pihak-pihak untuk melanjutkan tempoh berkenaan seterusnya. [67] Pada 7.10.2015 Defendan 1 mengeluarkan notis memberikan milikan kosong kepada Plaintif 1 dan telah diterima oleh Plaintif 1 tanpa bantahan. Dari kronologi kes dan tarikh-tarikh berkaitan, saya mendapati milikan kosong tidak diberikan dalam tempoh lanjutan otomatik 6 bulan tersebut. Plaintif 1 kemudiannya membayar baki harga belian hartanah berkenaan dan hartanah berkenaan didaftarkan atas namanya. Tiada keterangan yang dikemukakan di mahkamah semasa perbicaraan bagi menunjukkan Plaintif 1 mengalami kerugian dari transaksi ini. S/N XvDZWJ29rEWItSSQBDUvTw **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 [68] Dengan itu saya mendapati Plaintif 1 berhak menuntut LAD dari Defendan 1. [69] Seterusnya berdasarkan Klausa 3.2 PJB, Plaintif 1 telah gagal membayar bayaran progresif dalam tempoh yang ditetapkan. Dari pengiraan SD3, Plaintif 1 bertanggungan kepada jumlah yang perlu dibayar kepada Defendan 1 iaitu sejumlah RM847,565.16 dan faedah 5% setahun dari tarikh penghakiman hingga ke tarikh pembayaran penuh dibuat. (2)Plaintif 2 [70] PJB ditandatangani pada 29.4.2014 (Common Bundle “C” di muka surat 325 – 353). Berdasarkan Klausa 5.1, milikan kosong mesti diserahkan dalam tempoh 24 bulan dari tarikh PJB ditandatangani. Memandangkan terdapat beberapa lagi kelulusan dari pihak berkuasa yang belum diperolehi, di bawah Klausa 5.2, tempoh tersebut secara otomatik dilanjutkan 6 bulan ke 29.10.2014. Tiada persetujuan antara pihak-pihak untuk melanjutkan tempoh berkenaan seterusnya. [71] Pada 7.10.2015 Defendan 1 mengeluarkan notis memberikan milikan kosong kepada Plaintif 2 dan telah diterima oleh Plaintif 2 tanpa bantahan. Dari kronologi kes dan tarikh-tarikh berkaitan, saya mendapati milikan kosong tidak diberikan dalam tempoh lanjutan otomatik 6 bulan tersebut. Plaintif 2 kemudiannya membayar baki harga belian hartanah berkenaan dan hartanah berkenaan didaftarkan atas namanya. Tiada keterangan yang dikemukakan di mahkamah semasa perbicaraan bagi menunjukan Plaintif 1 mengalami kerugian dari transaksi ini. [72] Dengan itu saya mendapati Plaintif 2 berhak menuntut LAD dari Defendan 1. [73] Seterusnya berdasarkan Klausa 3.2 PJB, Plaintif 2 telah gagal membayar bayaran progresif dalam tempoh yang ditetapkan. Dari pengiraan SD3, Plaintif 2 bertanggungan kepada jumlah yang perlu dibayar kepada Defendan 1 iaitu sejumlah RM768,668.46 dan faedah 5% setahun dari tarikh penghakiman hingga ke tarikh pembayaran penuh dibuat. S/N XvDZWJ29rEWItSSQBDUvTw **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 Keputusan (A)Kes 283 (i)Plaintif 1 (a) tuntutan Plaintif 1 terhadap Defendan 1 untuk LAD ditolak memandangkan milikan kosong diberikan dalam tempoh yang dipersetujui. (b) tiada keterangan dikemukakan dalam perbicaraan ini bagi menunjukkan Plaintif 1 telah mengalami apa-apa kerugian atau kerosakan berhubung dengan kerja Infrastruktur Berkenaan tidak siap semasa milikan kosong diberikan. (c) tuntutan Plaintif 1 terhadap Defendan 2 juga ditolak. (d) Plaintif 1 diperintahkan membayar kos seperti berikut: (i) kepada Defendan 1 sebanyak RM6,000 (ii) kepada Defendan 2 sebanyak RM6,000 (iii) kedua-dua kos tertakluk kepada 4% alokatur. (ii)Plaintif 3 (a) tuntutan Plaintif 3 terhadap Defendan 1 untuk LAD ditolak memandangkan milikan kosong diberikan dalam tempoh yang dipersetujui. (b) tiada keterangan dikemukakan dalam perbicaraan ini bagi menunjukan Plaintif 1 telah mengalami apa-apa kerugian atau kerosakan berhubung dengan kerja Infrastruktur Berkenaan tidak siap semasa milikan kosong diberikan. (c) Plaintif 3 bertanggungan membayar kepada Defendan 1 faedah lewat membayar baki harga belian sebanyak RM82,246.58 (seperti tuntutan balas Defendan 1) dengan faedah 5% setahun dari tarikh penghakiman hingga penyelesaian penuh. (d) tuntutan Plaintif 3 terhadap Defendan 2 juga ditolak. (e) Plaintif 3 diperintahkan membayar kos seperti berikut: (i) kepada Defendan 1 sebanyak RM6,000 (ii) kepada Defendan 2 sebanyak RM6,000 (iii) kedua-dua kos tertakluk kepada 4% alokatur. (iii)Plaintif 4 dan 5 (a) tuntutan Plaintif 4 dan 5 terhadap Defendan 1 untuk LAD dibenarkan memandangkan milikan kosong diberikan pada 7.10.2015 dan tempoh yang dipersetujui telah tamat (1.2.2015). S/N XvDZWJ29rEWItSSQBDUvTw **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 (b) tiada keterangan dikemukakan dalam perbicaraan ini bagi menunjukan Plaintif 4 dan 5 telah mengalami apa-apa kerugian atau kerosakan berhubung dengan kerja Infrastruktur Berkenaan tidak siap semasa milikan kosong diberikan. (c) Plaintif 4 dan 5 bertanggungan membayar kepada Defendan 1 faedah lewat membayar baki harga belian sebanyak RM21,655.68 (seperti tuntutan balas Defendan 1) dengan faedah 5% setahun dari tarikh penghakiman hingga penyelesaian penuh. (d) tuntutan Plaintif 4 dan 5 terhadap Defendan 2 juga ditolak. (e) Plaintif 4 dan 5 diperintahkan membayar kos seperti berikut: (i) kepada Defendan 1 sebanyak RM6,000 (ii) kepada Defendan 2 sebanyak RM6,000 (iii) kedua-dua kos tertakluk kepada 4% alokatur. (iv)Plaintif 6 (a) tuntutan Plaintif 6 terhadap Defendan 1 untuk LAD dibenarkan memandangkan milikan kosong diberikan pada 7.10.2015 dan tempoh yang dipersetujui telah tamat (1.2.2015). (b) tiada keterangan dikemukakan dalam perbicaraan ini bagi menunjukan Plaintif 6 telah mengalami apa-apa kerugian atau kerosakan berhubung dengan kerja Infrastruktur Berkenaan tidak siap semasa milikan kosong diberikan. (c) Plaintif 6 bertanggungan membayar kepada Defendan 1 faedah lewat membayar baki harga belian sebanyak RM454,088.92 (seperti tuntutan balas Defendan 1) dengan faedah 5% setahun dari tarikh penghakiman hingga penyelesaian penuh. (d) tuntutan Plaintif 6 terhadap Defendan 2 juga ditolak. (e) Plaintif 6 diperintahkan membayar kos seperti berikut: (i) kepada Defendan 1 sebanyak RM6,000 (ii) kepada Defendan 2 sebanyak RM6,000 (iii) kedua-dua kos tertakluk kepada 4% alokatur. (v)Plaintif 7 (a) tuntutan Plaintif 7 terhadap Defendan 1 untuk LAD ditolak memandangkan milikan kosong diberikan dalam tempoh yang dipersetujui. (b) tiada keterangan dikemukakan dalam perbicaraan ini bagi menunjukan Plaintif 7 telah mengalami apa-apa kerugian atau kerosakan berhubung dengan kerja Infrastruktur Berkenaan tidak siap semasa milikan kosong diberikan. S/N XvDZWJ29rEWItSSQBDUvTw **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 (c) Plaintif 7 bertanggungan membayar kepada Defendan 1 faedah lewat membayar baki harga belian sebanyak RM598,342.07 (seperti tuntutan balas Defendan 1) dengan faedah 5% setahun dari tarikh penghakiman hingga penyelesaian penuh. (d) tuntutan Plaintif 7 terhadap Defendan 2 juga ditolak. (e) Plaintif 7 diperintahkan membayar kos seperti berikut: (i) kepada Defendan 1 sebanyak RM6,000 (ii) kepada Defendan 2 sebanyak RM6,000 (iii) kedua-dua kos tertakluk kepada 4% alokatur. (B)Kes 284 (i)Plaintif 1 (a) tuntutan Plaintif 1 terhadap Defendan 1 untuk LAD ditolak memandangkan milikan kosong diberikan dalam tempoh yang dipersetujui iaitu 7.10.2015 dan tempoh masa belum lagi luput (29.10.2016). (b) tiada keterangan dikemukakan dalam perbicaraan ini bagi menunjukan Plaintif 1 telah mengalami apa-apa kerugian atau kerosakan berhubung dengan kerja Infrastruktur Berkenaan tidak siap semasa milikan kosong diberikan. (c) Plaintif 1 bertanggungan membayar kepada Defendan 1 faedah lewat membayar baki harga belian sebanyak RM847,565.16 (seperti tuntutan balas Defendan 1) dengan faedah 5% setahun dari tarikh penghakiman hingga penyelesaian penuh. (d) tuntutan Plaintif 1 terhadap Defendan 2 juga ditolak. (e) Plaintif 1 diperintahkan membayar kos seperti berikut: (i) kepada Defendan 1 sebanyak RM6,000 (ii) kepada Defendan 2 sebanyak RM6,000 (iii) kedua-dua kos tertakluk kepada 4% alokatur. (ii)Plaintif 2 (a) tuntutan Plaintif 2 terhadap Defendan 1 untuk LAD ditolak memandangkan milikan kosong diberikan dalam tempoh yang dipersetujui iaitu 7.10.2015 dan tempoh masih belum luput (29.10.2016). (b) tiada keterangan dikemukakan dalam perbicaraan ini bagi menunjukan Plaintif 2 telah mengalami apa-apa kerugian atau kerosakan berhubung dengan kerja Infrastruktur Berkenaan tidak siap semasa milikan kosong diberikan. S/N XvDZWJ29rEWItSSQBDUvTw **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 (c) Plaintif 2 bertanggungan membayar kepada Defendan 1 faedah lewat membayar baki harga belian sebanyak RM768,668.46 (seperti tuntutan balas Defendan 1) dengan faedah 5% setahun dari tarikh penghakiman hingga penyelesaian penuh. (d) tuntutan Plaintif 2 terhadap Defendan 2 juga ditolak. (e) Plaintif 2 diperintahkan membayar kos seperti berikut: (i) kepada Defendan 1 sebanyak RM6,000 (ii) kepada Defendan 2 sebanyak RM6,000 (iii) kedua-dua kos tertakluk kepada 4% alokatur. Bertarikh: 21 November 2023. (ROSLAN BIN ABU BAKAR) Hakim Mahkamah Tinggi Kota Bharu. PIHAK-PIHAK: Bagi pihak Plaintif: Tetuan K L Wong, No. 31, 2nd Floor, Jalan Barat, Off Jalan Imbi, 55100 Kuala Lumpur. Bagi pihak Defendan 1: Tetuan Vincent Lim & Partners, No.18-3A,3rd Floor, Jalan Kampong Attap, 50460 Kuala Lumpur. Bagi pihak Defendan 2: Tetuan Kam & Sidhu VO2-07-08, Level 7, Sunway Velocity Office 2, Lingkaran SV, Off Jalan Peel, 55100 Kuala Lumpur. S/N XvDZWJ29rEWItSSQBDUvTw **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

AA-42H-26-07/2022

PERAYU Pendakwa Raya RESPONDEN THUR AQIL BIN ZAHARUDDIN

Tatacara Jenayah – Rayuan – rayuan pendakwaan terhadap hukumanTertuduh mengaku salah bagi kesalahan di bawah seksyen 326 Kanun KeseksaanSama ada hukuman yang dijatuhkan memadai – sama ada kepentingan awam dan keseriusan kesalahan telah diberi pertimbangan sewajarnya.

21/11/2023

YA Dato' Bhupindar Singh A/L Gurcharan Singh Preet

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21/11/2023 10:28:26 AA-42H-26-07/2022 Kand. 30 S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal AA—l2H—26—07/2022 Kand. 2,,11/2224 ,2 DALAM MAHKAMAM TINGGI MALAVA DALAM NEGERI PERAK DARUL RIDZUAN, MALAYSIA RAVUAN JENAVAH N AA-42H-2s—u7I2o22 ANTARA PENDAKWA RAVA PERAVU DAN THUR Ann. BIN ZAHARUDDIN RESPONDEN PENGHAKIMAN Perldzhuluan [1] Pada 18 Jmaw 2022‘ responaen Ie\ah mengaku sa\ah bagx perluduhan pmdaan an bawah ssksyen 325 Kanun Keseksaan dan duatuhkan hukuman pememaraan selama (empon uga tahun bermula darn (ankh ,aum hukum Pmak pendakwaan tldsk berpuas nan dengan hukuman yang duamhkan meh Hakim Mahkamah Sesyen yang buaksana (‘HMS’) darn (elah merayu temadav hukuman Iersebut [2] benkul Perluduhan pmdaan (erhadap responden ada\ah sepem yang 'Bahawa kamu paa. av/177/202:7, [em mm kurang 7 an malam, bedsmpal av rumah slams! Kzsc, Hale Ksaaysng 1 Kvmpurvg Kepayarvg nu Pm, 3U50lpa/1,dtdulsmDnemhKmla,A1rdnLnmNegsflP9mkd:duyanderIgan ssngaja lo/an msndalangkan Kecedsmzn mm mm mangsa /aw Nonama mm Malvamad {No x/p stazvs-05-6164; dengan marvggunflknn sobering klyu mm yang ,.:.. drgunakarv Salinger‘ 3:»/um manyarang halal: msnyababkan ksmnhan mm yang aemnm, ksmu ls/an mslakuksn sualu kssaranan yang Do/an omukum ctr buwah ssksysn :25 Kamm Keseksaan - [3] Mahkamah Im selelah mendengar human darlpada ksdua-dua plhak dan mengamhul ma segaxa ha! keadaan sens vekod rayuan dalam kes ml, lelah mengefepxkan hukuman yang dualuhkan men HMS dan menggarmkannya dengsn hukuman pemenjavaan selama enam lahun bermula dam 13 Jmax 2:122 Nasan Mankaman inn umuk menggsnukan hukuman zemauap respanden akan mlerangkan saepas Im ram ring kn [4] Fans 31 man zuzu um Vebxh kuvang 100 malam, Norzamma mun Mchamad (‘mangsa') lelah mengnamar vakannyi bemama Nurrafiqah bum Zaharuddm balwk ke rumah dw alamal K250, Hala Kepayang 3‘ Kampung Kepayang Faxr Park. mun, Perak Apabna sampan ax mrnah Iersebul, adlk kepada rakannya ianu Thu! Aqll hm Zahamddln trespondsn‘) Ialah menyerang dan memukul mangsa dengan menggunskan sabalang ksyu bmuh Iebm kurang lapan kah N m,mc.mmw.wxm, um smm ...m.mm be used m van; .. mmmy mm: dun-mm VIZ mum puns! Martian. Ilx um mmm (or: parllcuhrzrlmu, but am . nuximum umm. And lalvu 2.. m. com to decide wnn .2, within Mat msxlrnwn, mu nppmpllalo sonttnco In! each rrfminal m the plmcular cfmumruncu ol nan can, Not only ... rsgzrd In econ rrimu. um ... man! to - rh erimmll, 2». Cam! In: rm rrgnurvd the my in mm: whnmar m n. Ianlant or man.- [penekarvarv dnambuhj [19] Says mendapau HMS udak member: panekanan sewajamys kepada Kepenlvngan swam da\am merualuhkan hukurnan xemaaap respcnden Hukuman yang mkenakan nams memben gamharan yang Mas kepada vesponden alaupun mana-mana olang lam bahawa kesalahan mengakvbilxan kecederaan parah memnakan kesalahan yang senus dan udak bnleh mpandang nngan Va hendaklah mempunym Kesarv pengmaran kepada respnnden dan man mengnanang ovang lam danpada memkukan kesmahan ml Hukuman Iersebul mesh mempunyaw Impak unmk msnoegah respunaen mahupun mans-mana mdwldu xam danpada melakukan kesalahan yang sama [201 Hukuman yang dualuhkan dalam kes yang menyebabkan kecederaan parah mesmah menghancar mese] ‘ems kepada masyarakal Seslzpa yang mangaxmaxkan kecedelaan parah kepada mana-mane orang akan dmukum dengan sawayamya lm adalan kerana sehap mdnwdu dalam masyarakal mempunyal nak unmx bsvgsrak bebas dan hak ml 1: N mip\iLCl£u!mvwMVXomy ma Sum In-nhnv M“ be used m yam me m\g\ruHIy mm; dun-mm vn mum puns! mesh duamln sanap masa Mana—mana orang yang bemndsk secara ganas dan menyebabkan keoederaan paran kepada erang Vim akan berdepan dengan hukuman yang berm Mahkamah max akan benmak ansur dan memandang serius lerhadap seslapa yang melakukan kesawanan Keoeueraan paran dengan sengaja [21] Mankaman Pevsekutuan dalam kes PF 11. Dana‘ wud Manaor [2005] 1 Cu 421 ce\ah merujuk kepada kes R v‘ Sargenl [1974] en Cr. App R 14 yang te\ah memumskan ‘Those classical Pflflcrphs are summud ua n W words anmmn, datunance, pmvantmn and rshabrlnalmn Any we who comes m sentence uugma/way: m have Imus /our claxsmalprmc/pies n rmnd and :9 apply them :9 ma ractsorme case :0 sea mu oflvvomhas Ihagmmasl mwurrance m m. can wan wmchhe u duulmg / mu szan mm rsmaulron The om remmenroonc-pt alarv aye '0! an lya and mom rm mm no /Myer prays any mm In our cnmmar Law Tn-ru u, hawcvvr. mm." mm al remhuunn which I: frequently or/ulualmd: n u um society, manna me coma, malt mow Its nbnnnence mumcu/ar was man», and mu only my in which on mm can show ws rs by mu unlunu: my pull. The caum do not have to Iellecl nub/n: opmmn On me ulher hand man: must not dmsgard r: Palhavs the mam duly nllhe court IS :9 /sadpub/I0 opvmon ‘ lnanaxanan anamnani [22] Responder: hams menenma nukuman yang sa(Impa\ dengan xesmahan Kecederaan paran yang dlakxbzlkan kepada mangsa Hukuman yang mxenaxan man HMS sememangnya (Idak memadaw dan 11 N mivs:LCx.Eu!mvwMVxomv ma Snr1n\n-nhnrwmlxe used m mm ma mm-y mm: flan-mm VI] mum pm lerlalu rmgan bagi kesalahan rsspanderv Mohd Zawawx saueh HMR (pada kenka nu) damn ks PP v. Mohamed Dlmly Mohamed Jedi [201 a] 5 cu 692 te\ah menerangkan bahawn -(14).... ml: Yaw mar lhe ssnlsncs must be pmpomonala to ham m. ssnwsness ollhe Mensa ....1 me neg... ofrespansrbflny all/19 mm. The concept olprupomnnsmy was expllmed m m. c....a.a.. Supmme Caunoass am. /.....e. [2o121s<:z:1: 1201211 sm 41:... pnra :7 as Iolmws Pmpnmonahly r: m. true qua non al 5 my sanclmn Fast. m. principle easy... 2...: . ....2...c. mum me away cl 1... anm. This .5 I:/ass/y 1.... to me gang... .2. .:........:.....c... n pmmole: ,.......~e far vncmns ...a ensure: fiubho confidence ... me ..m.c. Jyslem Slcond, mo pnmpn. nrp.op..m'u...:Iry animus n... . ........c. does not txcud wr... .. Ipprvptllle, yivon 29.. rnor-I nr.....wmn:m. ..m.. alhnd-r in ms xenss, mepnnctafies selves . ..'........g or mslrlrnmy Iurmhon and ensums ...u..:e re. the am... [151 The pmlectvun ol sucrery .. one at ma man... purpose: or pumahmenl undar [he pnncrple oi prupamarmmy m Clmnnan v The Queen M73120 ALE‘ 1, 5, (he cowl 5...... The ntcossury ....: ..m......,'.mm..uo.. Iorcrimlnal s....:.:..... 1. the pmtuclion ofsoriqry Imm cnnducf won... I... law pmscllbet Pumshmenl .5 (we mean: by mm. sucrely mm; 1!: duapamval of cnmmal .:.».a...., by war. w.......g ls gtven an... mnssquencu .« Mme and by whmh rslamv oi .. oflenaqrcarv aomelrmes o. ussrsled Cllmmal snnclmns am p....m..»e, and may we no. mI7r:1od;ud»crz!ry except for m. p...pas. alpmleclmg some nor 1.. an .x..... beyond wine! .5 necessary to serum Ihatpulwse - lpenekanzn mtambah) oxen nu‘ hukuman yang duamhkan hendaklah menggambarkan kesenusan kesalahan mu den se|Impa\ dengan kasalahan yang dllikukan bagx melmdungl masyarakat [23] Mankaman yuga (e\ah menelm (rend nukuman yang duatuhkan bag: keseflahan keoederaan paran herpanduan pnnslp yang Ie\ah dlpuiuskan oxen Mahkamah Agung da\am k5 Molld. Abdullah Ang Swee King v. Public Prosecutor [1987] CL) (Rm) 209 yang menyalakan bahawa '/n assessmg me /mm alousramal senlenes me Cam! mus! rack at me ave/afilzmmre m persnsme by oonsmsnna rwslm me Ulavrlyo/me Mia av o/fence camrmrtad, «com me ram m m. cummman af Ills aliens: Wmly, ma presence Dr mono. alnwllgubng lsdar: and munmy the sentences that have been ympma n we past my smn/av misuse: m delelmme me ma olssntsncmg pahcy. n any,’ Trend untuk kesalahan dl bawah seksyen 325 Kanun Keseksaan bag» terludun yang mengaku sflah adalah sepeni yang benkut (3) PF v. Kw Nqo [mu] 5 CLJ zne, Mahkamah Tmggx (elah mengetspxkan hukuman pemenjaraan sakama 1 nan din denda RM1‘5D0 on yang duatuhkan men Mahkamah Sesyen dan menggamlkannya dengan hukuman pememaraan se\ama 5 lahun Tenuduh (elah menynnban aswd ke atas mangsa 1. sn mspmcxzurmvwwxomv -um smm ...n.mn be used m mm .. mmuny mm: dun-mm VI] mum pm (17) IE) (9) Anbzlagzn Murugesu lwn‘ PP um] I ms 133!‘ hukuman pememaraan se\ama B (ahun flan 2 sebalan dwkekalkan a\eh Mahkamah Tmggw Mangsa |e\ah mpukux dengan sebalang hes: PP v. Abdul mum Aha Smut (suPri)‘ Mahkamah Rayuan le\ah mengaxaskan kepulusan Mahkarnah Tmggx yang mengekaxkan hukuman mauamm :11 bawah ssksyen 294 KTJ dan dlgarmkan dengan hukuman Pememaraan se\ama wo Kahun Mangsa man ameaeuxan dengan parang Eudimall Che Mama! V. PP [ZDI7] 1 LNS 1535 Mahkamah Tlnggx man msngekalkan hukuman pemeruaraan se\ama a Iihun flan 1 sebacan, mangsa telah dlpukul dengan kayu den been Kuku kambmg Jami! Dun V. PP[2|'l|B]1 LNS I91, Mahkamah TIngg\ lelah mengeteplkan hukuman pemenjaraan 2 lahun dan dxgarmkan dengarv hukuman pemeruaraan se\ama 1 lahun dam hukuman 1 sebalan dwkekmkan Mahkamah Rayuan telah mengekalkan hukuman yang duaumkan aleh Mahkarnah Tlnggv Terluduh Iemh mencederakan mangsa dengan sebatang new 15 sw mpmc.mmw.wxm -ms Sum In-nhnv WW he used m mm u. nvwhuflly mm; dun-mm VII mum pm 1027, Mahkamah Tmggl |eIah mengekalkan hukuman pememavaan selama a lahun nagx dun kesalahan |etapx penmah hukuman benman sevsnxak dxkelepwkan dan mpennuanxan un|uk benalan bsraslngan menyebabkan kecederaan panah kepada due erang mangsa dengan manggunakan asld PP lwn. Vuvanp Nadwelu [2022] 1 Mahkamah Tmggl telah msngetepwkan pemeruaraan 3 namm dam menggarmkannya dengan hukuman psmeruaraan selama 10 lahun dan 2 sebalan Temmuh menggunakan jag yang mengandungv an psnas‘ kesa\ahan m bawah seksyen 325 Kamm Keseksaan den dlbaca belsama semen 326A Kamm Keseksaan Berdasarkan trend hukuman an alas bagl kesamaan dx bawah seksyen 326 Kanun Keseksaan, apamla «emmun mengiku salah hukurnan yang duzatuhkan ada\ah zmara 5 hlngga 10 lamm [25] Saya ‘uga |elah mengambu kva sens member! perlimbangan yang sewzuamya kepada pengakuan salah respcrmen, Iayuan responden flan vakta bahawa kesalahan Im melupakan kesarahan penama responden 15 -um Sum ...m.. WW be .15.. m van; M m\g\ruHIy mm; dun-mm VIZ mum puns! sw m,mc.mmw.wxm, ' ah lunti Badrul Hisham [2020] 1 LNS Tenuduh LNs hukuman Dalam kes Eachik Abdul Rahman v. PP [2004] 2 cm 512 Mahkamah Rayuan te\ah memutuskan "The learned judge appearx to have men Ms wsw m.»m.111 mm as grvsn In every ms mm 11 pmunpmas gum The pasmon m /aw 1: my 1 rs gonuully lcmpled m an amused person new be given am or dvscaunt Iur pleading gurity (:99 San Sac mm 1 PP /1975} 1 ms 155 (197512 MLJ134 wv Su/zr/nanAhmad[1992[4 cu 2253,11-.2921;1 cu 447 (Rem [1sva11 ML./ 74, PP V Ravtndlun 5. Ors[1992]1LNS 47, new 1 ML./ 45) Nuwever, 1/11‘: 1; not . smc! rule as the mm may, 1.. Inc exemrxe 11111.; duarslron refuse 1» grant any dvscuurvl m an nppmcnwe cuss {rec Zardon Shani! V PP was; 4 cu 441,1... my 5 Ora V PP[1vs5) 2 cu 155 mas; cm 412.,» A53; 1»: npplmalmn m favour afarv mum dzpends an 1". 1.11; and ctmumslances of each case (5.9 Wang Km Chuen pm V pr-1199121 1L/vs 14s.[1791j1 ML./ :21; The :rrL‘umslarIc:s m mm . gmfryplaa wwnol have any wwgm are vanad m szvenlyof the mm mmmmed may oulwmgh 11.. mmgatvng sflscl or . gmlfy plea (569 Loh Hock Sang 5 Ann! .1 pp 11979; 1 ms :11‘ man; 2 MLJ 1:, WV 00 Lang Swee 1. Or: 1191111 1 ms 1ov,(1ya1)1 ML! 247; wnm public 1.15.251 demand: 11 deterrent ssrvtsnui m m. cvmumslancas a1 a pm!/oulsr case, man 1». area 5/ . gmlfy was run! also give W /see Sim Gsk Yong V pp (159511 sLR5:7, Fm Gawmnsn Cmnderv Narr 1155312 cu 3717) A gmllyplea oanmal also be 1 pmm11mmga1mg lam: when nflaclive/y no mam to the charge 1: avaxluble m the accused (me up V Law Knk VI/sI[1§9E] 2 cu ms, [ma] 2 cu (RApI 259) ~ Dalam kes IN, Delhi dllekankan bahawa kepenlmgan swam din rnangsa mengatasw Kepenllngin respanden Orang awam max akan dlhndungn uka Mahkamah mengenakan hukuman yang leriam M93" 11 sm m,mc.mmw.wxm, mm. 5.1.1 ...m.mm .. .1... .11 mm .. nrighvnflly mm: dun-mm VII mum pans! Kepenllngan awam menghendakl supaya hukuman herbenluk pervoegahan dtkenakan \erhadap respanden Tambahan pula mskaun Ielah dwambwl ma bevdasarkan pengakuan sum: respunden subperenggan 172D[I p(c)1m KTJ [26] Eerdasarkan kepada a\asanra\asan dan pnnsm undangrundang yang dmyalakan an alas dan senexan mengambfl Kwa segala ha! keadaan dalam kss um dapalan saya adalan bahawa hukuman pemsmaraan uga lahun yang duatuhkan oleh HMS hdak memadav dan Ieflalu nngan pka umanumgkan dengan kesermsan kesmahan yang Vakukan O\eh xtu‘ hukuman psmemaraan uga Lahun dlkelepwkan dan dlgarmkan dengan hukuman pememaraan selama enam Iahun bemmla dan ca Julal 2022 Hukuman VH berada da\am halasan hukuman kes»kes Ierdahmu flan xa wga meneermlnkan lrend hukuman semasa yang pm pengamanan says ada\ah wajar, uarpannan Sena seIImpa\ dengan Kssalahan responder: Banankh 21 November 2023 Akmcrd PREET) INGH AIL GURCI-1 Mahkamah Tmggu Mamys Ipoh sw miwiLCx.Eu!mvwMV -um Sum ...m.. WW .5... m van; M m\g\ruHIy mm; dun-mm VIZ mum puns! Fxhak-Pmak Eagx pmax Perayu Khazrm Haffiz hm Khahl, Twmbalan Pendakwa Raya Megan Perak Bag! pvhak Responden Kenny La: Chas Ken, Vayasan aamuan Guzman Kebangsaan Negen Perak 19 sw mmc.mmw.wxomy -um smm ...m.mm be used m mm .. mmuny mm: dun-mm VI] muNG pm I5) Abu Bakar dan mmah Wu ke Balal Pulls Sg Senam sawumzan hm Jaavar Kemudwannyay mangsa |e\ah dwbawa cleh Muhammad N Hafiz hm Isnu anggola pohs yang benugas an balal Iersebm msndapall bahaglin lengan Km mangsa benumuran aaran, langan kanan mangsa [max boleh dIangka| flan mangsa da\am Keadaan lercnngapcungap menahan kesakuan aklbal mpuxul Selemsnya amhmans [swan dlpanggll unluk membawa mangsa ks nospnal bag! mendapmkan rawalan den Vaporan makluma\ panama (P2) |elah mbual [5] Oman dnangkap oxen pnhak polls dx rumannya Rampasan barang kes mu Pads 5 Ogos 2020 ‘am Vebwh kurang 12 10 (engah nan, respcnden sebatang kayu huhm |e\ah dlbual danpada responden Aklbal Kecederaan yang malamn mangsa Ie\ah mmasuxxan ke wad nospnal pada 1 Ogns 2020 mm mbenarkan pmang pads 3 090: 2020 Menurm laporan peruba\an yang dlkemukakan mangsa mengaxann kecedarian ‘c/osed /raczuna ngm 0/ecranan" dan “/acelairon wound over lelt arm” dan lelah dlbenkan vawalan “recon plalmg over ngm mecranan” serla ‘wound dslmdament overand toilet and sumnng avsrlsn arm“ [71 mspnau wanu Fusal Repel 4203/20 pada 4 Dgos 2:120 (P3) Mangsa mga man membual Vapolan pohs setelah kaluar dam syn mip|:LC1Eu!mvwMVXumy 3 -um, smm n-nhnrwm .. used m yew .. anmnnuly mm: dun-mm VIZ .nuNG W uannan Mnhknmuh [5] Di perlngkil rayuan mengenal hukuman‘ pnnswp undangrundang adalah mancap bahawa Mahkamah nanya akan mengganggu hukuman mahkamah perhlcaraan saxnanya hukuman yang du.IIuhkan merupakan hukurnan yang temyata nenemnan alau terlalu nngan atau menyalarn undangmndang Ksadaan lam yang membenarkan campur (angan Mahkamah mengenau sssualu hukuman aaaxan apabfla mahkamah permcaraan (elah khllaf tentang undangamdang alau xnnav da\am pemlalan pnnslp-prmslp hukuman dan hukuman yang auamkan ada\ah max sesual dengan lakls uan hal keidaan yang lelah dlhuklnkan [9] Dawn kes PP Mn. Ramakrmuun Subramnniam a. on [2012] 9 CLJ 443 Mahkamah Rayuan «elan memuluskan bahawa ynmangnnu pnnslp ysngflukuman yang media Ids, sump many yang balsa/an sham mencrvma /mkumsrv yang mumps! dengan berm/k kssalahan yang dnlakukan Mahksmah hendaldah men/aluhkan flukuman manurul undang-undang unluk msnsnlmwv supiya rmkumln yang drkennkan lemadsp pssalalv rm adu, Dsrsusuamn dun selmmal dsngan apaapa maranan yang ddakuksnnyn rm Ada/an ma msmadr prmsrp urrdang—I/rvdangystng mamp banswa mshkamah yang msndengarrayuan nduk senarusnys calnpur lzrvgan dervgan rmkuman yang drkenukan we/v nalum pemrcalsan aan :9/ilunya Ildak afivan msnukar hukuman mslumkan runya be/puss mm mm: Imkuman yang uyamnm olsh hakrm Derksnaan rlu tamysln am: mm memadar alau mencukwr alau keleflaiuarv nlsu mu ssh alsu pun mmk mevuplkan Ivukuman yang we/ar mfimarrdarvgkun semua /am yang amaankan, alau aanm mallkamnn tarseau!;e/.550:-Isalsll dtda/am nmn.u..pnnw yang belurdulam Denrlamrv A N mips:LClEu!mvwHVXumy Nuns smm n-nhnrwm be used m van; .. nrighvnflly mm: m.n.n wa mum puns! nukumarv Prllmp Imdsng—urIdarIg yang mevvslvlukzm kzlwalnn dan mm... keuulusan berkmtan rlangan hukuman man d»g.snxkan danger: ;sVas da/zm kss Bnandulananaa ./zyanlaks V P911751] 1 ms 139 .1... has new Sen Arvwur /m.:..... V PP/2:202] 3 cu 457 [10] Mahkamah Rayuan dslam kes PP v. 9 an Hoe[2a15J 4 CLJ B69 le\aI1 mengganskan panduan yang sama apabua memuluskan -114; The apps/Isle cowl can and wtlrmfnrfem .. the M15... rmyotedby the my cum .. .. .5 sulnsflpd 1.... ..., cl m. Ivflowmg Your grounds ... made am 3.; m sanxmcrnmuavsnsa mmea wrung dumstanastalns W9. 1...»... Bears rm». gamma, m Thule mad been .. anur .... 4... par! 0/ me mar [udgu .. appracxalmgt/'1: mammal lack: waved Dslolu NW. [D] n... ........o. was mongmpnnc-pie, 9. 1.1. we sentence Imposed was mamisavry 9......“ oumzdawart /15; m sum/ur vem, the Com ul Cmmna! Appeal VI Dunks: V Duactol nl Fubbc nmemm 1217101501 71 sard ilpam m semencrng .5 not . scnence ar mmnemarmar appmuan 0/ any 5.: /bmmla 1: vs a normative scrsnoe ramerman .. physical mu... wmcn mm mto acmunl m. clrcumslnrmnx .4 me allenderss wsfil is the nflencs andlns mp»: arm ofience on me mmmunw, A sentence may look :9 be Iemenl because u .5 mama m on me ullendef, mu allows and the allended but, In our syskm a([u:m':e, me 4...: wun AS the only wnsmumanar »m.m:.a.. mm. .5 empowered and suvorwgvv .. detsnmmng winch ssnlsnce m mums: an an ollenaerurv ma facts or me pamwlarcnss An lppnllatt cowl would mm imm... umm m. ....m.c. I: wrong 1:. prvnwplc ornun I-tuy nmn um ouzassive ar unduly um": Hwmvur, m.. it mm 5: naming wrung wnn mo prvrlmpk, Ml "mm mny n. Incnaud by tho .pp.nm some .1 n u unduly romm rn. pmmgr. or pmpamonamy pcrvatlos through nu ma». systtm or/mu. rn procaaun. mmam and sancttom.“ [plnakanzn mummy (hhat juga Pub Pmuculnr v. Mohamed Nor 5 on [1955] 2 ML.) zon; Bhnudullnanda Jnyililaku v. Puhllc Flonclllor (19311 I MLJ :3; [19211] 1 LNS us «an Public Proncuzorv. Lon Chnan Falt [1976]1 LNS 102; (199512 MLJ 155) [11] Berpandukan nas-nas dw alas, pevsoalan yang perm duawab adalah sama ada hukuman yang dualuhkan oleh HMS memadan dengan kesalahan yang dxlakukan aleh responder: Pemnlukan seksyen 325 Kanun Keseksaan adaxan sepem yang henkul ':m vnmmmy uuilrvg gnovnlu‘ mm by dlngomu: valporu or mum Vl/hoover, clear: In the me pmvmed by section an vclwvlanhy cauxss gnevous mm by means many msln/msnllorxlvaavmg slnnbmg orcultmg ol any rnstrumslvl wmcn used as u weflmm pl-memos, ».1 we/y In cause deem or any scheduled weBD0" M spasm: under me Commw and sxpmm Subslancex and orrenswe Wssaons Am 195:: arby mean: or (V! many healed substance, why man: Many poison ar any comwsrve substance. or by man: alarvy explasrv: substsnoa, or by means orsny xubstarrcs wmcn yr #5 nilllvnau: m the human body to mha/9. to swallow. or to mufva mm m. blond, orby means of any ammal, mm D: punumd with impriaanmonl Io! . lorm wmn mly «mm: In rvmvfy yours. um shnllnlsn ». mm In mu one whipping‘ [paneknnan dnambah] N mip\iLCl£u!mvwHVXumy mm Sum In-nhnv WW he .15.. m mm M m\g\ruHIy mm; dun-mm vn mum puns! [121 Bagl kesalahan an bawah seksyen 325 Kanun Keseksaan hukuman pemamaraan makswmum yang men dhaluhkan adalah semngga Zfllahun dan wga bo\eh mdenna Gan dlssbal Dalam memperllmbangkan rayuan mi, says man menehh pengnakunan was yang (erkandung dalam Rekod Rayuan mu 1 «an muka sum 13 mngga as Sscsra nngkas a<as-an yang mpemnmangxan men HMS adalah seperli yang benkut “/91 The Court accepted lhe accused person’: gumy plan and lock mm account Ills aggmvatmg and mlllgstmg Iaclors and me MI!!! case and avrvlanced the accused to J yuus nnpnmmm (mm Ins date or canvicbon [171 ms mawnmn senlervcs Imderlrus mmn was 247 years, and .1 yams are wvmm mo pruswvbed par-oa pa] The mterext cl me mum must be balanced wlm ms minus! 0/ ma human 1247/ The accused in ms use ma no gmwuus norwrclmv and this was ms (rrstahbncs ‘~ [131 Perkara Lam yang dmyatakan dalam penghakiman ms :a\ah rayuan danpada responflan dan penghmaharv pmik pendakwaan semen menehlv pengnamnan HMS‘ saya mendapali secara keseluruhan penghakvnan (ersebm Ieflalu nngkas dan mask menerangkan secara kunknl mengapa responder: harvya dualuhkan hukuman pemenjaraan selama Ibga Iahun Penghaklmsn HMS Ru Mdak menghuralkan apakah laklar pemberalan nukuman yang lelah dlpemmbangkan N m,mc.znnw.wxan, um smm n-nhnrwm be used m van; .. mn.u.y mm: dun-mm VIZ mum puns! [141 Responuen dalam kes mu telah mengaku sa\ah sebelum perblcavaan bermula‘ oleh wtu bevdasarkan seksyen 172:3 Kanun Talacara Jenayah rxn‘) respcnden hendaklah duatuhkan hukuman menglkutsubperenggan172D(|)[c)(>I)KTJ lm bermakni respnndenmak bmeh duatuhkan hukuman pemeruaraan mebbmw 10 (ahun kelana bemak mendapat dlskaun pengakuan nersaxannya Tamhahan puli pengecuallan yang xercam da\am subseksyen 1720(2) dan (3) KTJ max lerpakal dalam Kes wm uman Sylmsul Fazwan Abn1uIAxiz v. PP mun] 1 LNS 2201 dan PP lwn. Mohd Harry Mohd Vusuk [1010] 1 LNS 12:1) [15] Kesalahan an bawah seksyen 325 Kamm Kaseksaan mempaxan sualu kesalahan yang sews Hukuman yang auaumkan oleh r-was ndak memadax flengan kesa\ahan yang dllakukan o\eh respnnden flan leflalu nngan HMS max mengamnn ma Keaenusan kesalahan yang auakukan oleh responden Responder: te\ah memuxm mangsa berkalrkah sehmgga (angan kanan mangsa mengiflamv keretakan Akmal moeaerakan, Iengan Km mangsa berlumuran darah dan Ierpaksa menenma lugs Jamxan muuk P2 den P3) Kecederaan mangsa dlsukang oleh lzpnran pembslan (P12) yang jelas menyaeaxan kecederaan pada Vengan km mangsa lerpaksa duamk Iallu ‘tone! and sulurmg overlefl arm“ Mangsa |e\ah mengalaml kecederaan parah axmau dupukul Lanna belas kesmn men rseponaen dengan sebatang buluh x sw m,mc.mmw.wxm, -um Sum ...m.. WW be .15.. m van; M m\g\ruHIy mm; dun-mm VIZ mum puns! (16) Ferlu dwambxl ma mga bahawa Iesponflerv (elah memukw seurang wamla yang max dapal mempenahankan mm-ya dengan sebauing bum: Jwka mums: gamhar senjala yang dlgunikan adalah JEVES balang buluh Inn menyerupal balang buluh yang |eba\ darn masanya mgunaxan men pengawal kesewamacan Mangsa sudah Ientu menga\am| kesakuan yang Iemk akibal kerelakan pada Iangan darn mulan lukanya Fakla Im hdak mamm ma Vangsung oxen HMS dakam psnghaklmannya [17] Berdasarkan penghakwman HMS, kesxmpman yang dapat dnbual \a\ah HMS lelah membenkan perllmbangan berleblhan kepada kepenllngan respcnden danpadi kepemlngan swam Saya faham bahawa kepermngan vespanden perlu mpemmhangkan «mam damm memaluhkan hukuman. kesexmhangan anlara kepenlmgan respcnden dan kapermngan awam henaakxan mpemmbangkan dengan sewajamya supaya kepenlmgan awam dan mangsa khususnya mammx ma usmu mexaks.-makan keadflan Damn kes PP v. Abdul Hnllm Abd sama: 1201414 CLJ 12 Raus sham HMR [pads kem ma ¢e\ah berkata ‘The senlsncu mlnond mm flfwlys whet puallc mrmssa ans! lakmg mm account me nwlrgabon admncad by mo accused {Sss Smrvatm/rat summamam v PF'[2011] 5 cm 56; [1 11 Auudges, we mus! llways mmma aursstves Ina! me mm1.mn:armr. 5/ .1 ;udg: m . mmmr mm: systum I: to ensure mat the measure a! punishment should be pmpaflmnale :0 (ha allcncs mmmmsa 9 sw mmc.mmw.wxomy -um smm ...m.mm be used m mm .. mmuny mm: dun-mm VI] muNG pm A pinion who mnnn . mac... slime: must no ;-un:.n..: mmry ml Lsamsd marlau Ior me accused nm umsd ms noun :0 mamram mp brndmg ow! order nnpom by me courts bsluw wnn pupae; n M, warp la mm 1» ms ruquasl, tho punnc wm think um um court .2. pulling the Interest al cnmirufs nbavn ma inmm ol mo mane. nm cannot be mun. As xlalsd ssmer Mrs type ofcnmma! wnducl mus! ha dealt wrm savara/Y by me courts n y: vs 10 serve as . wlmmg la ulnar mm be ullemdars In our nmgmena, Inc mnmn af pun/rc mtaresl may 1:; near served mmugn me tmneslbon als oummar senlance gvvsn ms grawly Md omsllsclars swmang the wmrrgfuhactmmplamsxi or Sunly, ¢au.Ir’ny vmvmu nun to . dvfulcnlus r-new mmlln being. as in on: me. mum mm Punhlhmcnr unau znu law Ibenekanan auanmanl [we] Dalam manna: lempoh hukuman yang pam duamhkan Mahkamah hendaklah mengamnu anmn Kira fakler Kepermngan awam Da\am kes R v. Ball :5 cy. App. R 154, Hakim Hnnery (elah menerangkan msngenau kepenllngan awam dan menyatakan -rn decrdmg me appmonale sentence a Cowl smw/L1 always be gwded by certain consmeratrons Tn: ms: and Iourmur 1- mo puouc /numx. rm rnminll llw is puuucry .nrm.4, not only mm up. abjlc! nlpunlsnlng cnmo, numn In mu hapc oIpnvonHnqI1.A pmpmenrem, passed n Dubhc, serves me nublrc mterusl n two ways n rnzy carer ems/s wno man: be tempted to try mm as sssmmg In an» my mom an MC supposrban‘ ma! me 0/(Mdor rs mug!!! and bmughl !u1u:tr'L~u, [Ira fiunrshmsnf wvll n. Iveghyvme Such a sanrsncn may also data: m parimufiar mmma! Imm cammrmng . mm agsm olmduce mm m (um Main 5 cnmmal 1» an honest Me me warm rntsresl rs mesa semen, and ms; served, «I the oflander rs nama to mm Vrom cnmmal ways to honest nnnw Our nw do" not. syn mivs:LCxEu!mvwMVxomv

Tika 2.6.0 & Pytesseract-0.3.10

DA-12B-35-08/2022

PERAYU MUHAMMAD ALIF BIN SAIDIN RESPONDEN HASSAN BIN YUSOFF

KEMALANGAN JALAN RAYA : Isu yang perlu diputuskan mahkamah ialah sama ada gantirugi yang diberikan oleh L/HMS adalah adil, munasabah, tidak terlalu rendah dan mampu memampaskan Perayu.

21/11/2023

YA Dato' Roslan Bin Abu Bakar

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=b2b408b2-7e5d-49c0-9fda-a978f172d195&Inline=true

Microsoft Word - Appeal 12B-35-8-22 Md Alif MVA kuantum 1 DALAM MAHKAMAH TINGGI MALAYA DI KOTA BHARU DALAM NEGERI KELANTAN DARUL NAIM, MALAYSIA RAYUAN SIVIL NO: DA-12B-35-08/2022 ANTARA MUHAMMAD ALIF BIN SAIDIN … PERAYU DAN HASSAN BIN YUSOFF … DEFENDAN PENGHAKIMAN Pengenalan [1] Rayuan ini difailkan oleh Perayu yang tidak berpuas hati terhadap kuantum untuk beberapa item dalam gantirugi am dan gantirugi khas yang diberikan oleh Hakim Mahkamah Sesyen yang terpelajar (selepas ini dipanggil “L/HMS”) dalam satu kes tuntutan kemalangan jalanraya. [2] Perayu (Plaintif dalam perbicaraan di Mahkamah Sesyen) pada masa material adalah penunggang motosikal bernombor DCA 7390. [3] Responden (Defendan dalam perbicaraan di Mahkamah Sesyen) pada masa material adalah pemandu dan pemilik berdaftar motokar bernombor DR 7070. Fakta [4] Pada 16.7.2018 jam lebih kurang 12.15 tengahari, Perayu sedang menunggang motosikal bernombor DCA 7390 di atas jalanraya dari arah Jalan Gajah Mati menghala ke lampu isyarat Kijang. Apabila sampai di hadapan Istana Kota Lama, telah berlaku pertembungan dengan sebuah motokar bernombor DR 7070 yang dipandu Responden yang datang dari arah bertentangan untuk membelok ke kanan jalan (rujuk Rajah Kasar dan Kuncinya di muka surat 121 – 122, Rekod Rayuan). Perayu mengalami kecederaan dan motosikalnya mengalami kerosakan ekoran dari pertembungan tersebut. 21/11/2023 11:18:49 DA-12B-35-08/2022 Kand. 18 S/N sgi0sl1wEmf2ql48XLRlQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Prosiding di Mahkamah Sesyen [5] Kedua-dua pihak telah bersetuju merekodkan liabiliti seperti berikut: (i) Responden: 90% (ii) Perayu: 10% Isu [6] Isu yang perlu diputuskan mahkamah ialah sama ada gantirugi yang diberikan oleh L/HMS adalah adil, munasabah, tidak terlalu rendah dan mampu memampaskan Perayu. Penelitian dan penemuan mahkamah [7] Sebelum memutuskan isu kuantum ini, saya telah merujuk kepada beberapa kes mantap berikut sebagai panduan iaitu: Ong Ah Long v Dr. S Underwood [1983] 2 CLJ 198: “It must be borne in mind that damages for personal injuries are not punitive and still less a reward. They are simply compensation that will give the injure party reparation for the wrongful act and not for all the natural and direct consequences of the wrongful act, so far as money can compensate...”. “In considering the issue of quantum of damages, I bear in mind that an award must be fair which means that there must be a proper compensation for the injury suffered and the loss sustained”. Wong Li Fatt William (an infant) v Haidawati bte Bolhen & Anor [1994] 2 MLJ 497: “In considering the issue of quantum of damages, I bear in mind that an award must be fair which means that there must be a proper compensation for the injury suffered and the loss sustained”. Appalasamy a/l Bodoyah v Lee Mon Seng [1996] 3 CLJ 71: “Thus, one must not forget the general rule that the function of damages in tort actions is purely to put the Plaintiff in the position which he would have been in had the tort not been S/N sgi0sl1wEmf2ql48XLRlQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 committed in the first place and this can only be done through a reasonable award of damages.” Ong Ah Long v Dr S Underwood [supra]: “It is well established principle that special damages, have to be specifically pleaded and specifically proved.... The reason that special damages have to be specially pleaded is to comply with its object which is to crystallize the issue and to enable both parties to prepare for trial”. [8] Rayuan Perayu berhubung dengan kuantum adalah terhadap item: (i) Gantirugi am a) severe traumatic brain injury (ii) Gantirugi khas a) kos penjagaan masa hadapan b) kos rawatan masa hadapan [9] Setelah meneliti serta menimbangkan hujahan kedua-dua pihak, Rekod Rayuan, nota keterangan, eksibit-eksibit dokumentar dan alasan penghakiman L/HMS, saya mendapati dan memutuskan seperti berikut: Gantirugi am (atas kadar liabiliti 100%) (i) severe traumatic brain injury [10] Pihak Perayu memohon gantirugi sebanyak RM350,000, manakala Pihak Responden menghujahkan sejumlah RM130,000 sahaja. L/HMS telah memberikan award sebanyak RM180,000. Dalam memberikan jumlah gantirugi tersebut, L/HMS telah menimbangkan: (a) Perayu mengalami sawan tiga kali dan telah dimasukan tiub pernafasan tracheostomy yang menyebabkan Perayu terpaksa disuap makanan untuk tempoh 2 bulan 9 hari. (b) keterangan Pakar Rehabilitasi Perayu (SP1) bahawa walau pun Perayu berkeupayaan melakukan basic activities of daily living tetapi dia tidak dapat melakukan instrumental activities S/N sgi0sl1wEmf2ql48XLRlQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 of daily living dan community activities sendiri dan memerlukan dibantu oleh seorang orang gaji. (c) perkara ini dipersetujui oleh Pakar Rehabilitasi Responden (SD1). (d) kecederaan Perayu tidak begitu teruk hingga memerlukan gantirugi yang tinggi. (e) Perayu tidak berada dalam vegetative state yang lumpuh sepenuhnya. (f) MMSE Perayu adalah 23/30 – mild cognitive impairment. (g) weakness of the right upper and lower limb – Grade 4/5 indicates 20% loss of power. (h) gait impairment – the patient walks with a mild hemiparetic gait. (i) Perayu masih boleh berjalan, duduk dan boleh berdikari untuk aktiviti harian, tetapi memerlukan pemantauan. (j) Compendium of Personal Injuries Awards (k) kes-kes undang-undang [11] Berdasarkan kepada Laporan Pakar Neurosurgery Perayu bertarikh 6.7.2019 dari Kota Bharu Medical Centre (muka surat 85 – 92, Rekod Rayuan), semasa Perayu dimasukan ke Hospital Raja Perempuan Zainab 2 pada 16.7.2018 sebaik-baik sahaja selepas kemalangan, bacaan pre-intubation Glasgow Coma Score (GCS) adalah 7/15 (E1V1M5). [12] Laporan berkenaan juga di bahagian “Conclusion and Opinion” menyatakan: “… sustained a traumatic severe brain/head injury with cerebral concussion, multiple incranial hemorrhages (contusion and ASDH) and soft tissue injury. The present assessment revealed the following neurological disabilities: (i) Physical disabilities: a) residual right hemiparesis with some function loss – in ability to lift/carry objects, abnormal gait. b) abnormal speech – hoarseness of voice. (ii) Neurocognitive deficits: a) suffers from some neurocognitive impairment such as poor memory recall and attention. S/N sgi0sl1wEmf2ql48XLRlQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 (iii) Neurobehavioral/Affective disorders: a) suffers from post traumatic behavioral changes such as easy irritability and social apathy. (iv) Somatic symptoms: a) episodic headache and giddiness. Based on the Glasgow Outcome Score (GOS), his condition is categorized as GOS IV (moderate disability; independent and can resume almost all activities of daily living; but disable and cannot participate in variety of social and work activities).” [13] Saya juga merujuk kepada laporan pakar Pihak Perayu dan Pihak Responden berhubung dengan keadaan Perayu bahawa (saya ringkaskan) walau pun Perayu independent in all his day-to-day activities of daily living tetapi masih mengalami beberapa keilatan seperti yang dinyatakan di atas. [14] Jelas di sini bahawa keadaan Perayu adalah seolah-olah mengalami seperti “separa lumpuh” dan masalah kognitif yang menyebabkan keilatan teruk sepanjang hayat kerana otaknya yang mengawal keseluruhan anggota badan tidak dapat berfungsi dengan sempurna lagi. Perayu tidak lagi dapat hidup seperti sediakala i.e. sebelum kemalangan. Keterangan SD1 mengatakan selepas dua tahun, kecederaan kepada Perayu telah mencapai maximum medical improvement (MMI) dan peluang sangat rendah untuk pulih selanjutnya (muka surat 78-79, Rekod Rayuan). [15] Selain dari merujuk kepada Compendium of Personal Injuries Awards (selepas ini dipanggil “Compendium”) dan nas undang- undang yang dikemukakan pihak-pihak, saya juga merujuk kepada: (a) umur Perayu 26 tahun pada tahun 2023 iaitu seorang muda. (b) prospek untuk berkahwin dan berkeluarga sendiri. (c) kecederaan yang di alaminya telah mengubah keupayaan keseluruhan tubuhnya. (d) menjejaskan peluang untuk mendapat kerja. S/N sgi0sl1wEmf2ql48XLRlQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 [16] Saya juga mengambil ingatan bahawa Compendium hanyalah suatu panduan sahaja seperti yang dinyatakan dalam kes Abdul Waffiy bin Wahubbi & Anor v A.K. Nazaruddi bin Ahmad [2017] 2 PIR 1: “the compendium is not meant to stifle the rights of the parties to submit below or above the stipulated quantum, nor it is meant to fetter the courts discretion. As such, judges and lawyers are at liberty to depart from the compendium in the event case law or factual circumstances so dictate.” [17] Saya juga menggunakan prinsip “good gracious test” yang diberikan oleh mahkamah Persekutuan dalam kes United Plywood & Sawmill v Lock Ngan Loi [1970] 1 LNS 164: “The general principle is that an appellate court can only interfere with an assessment if it is considered so inordinately low or inordinately high as to make the court exclaim: Good gracious, is that the sum which has been awarded, that sum has to be altered...” [18] Di atas pertimbangan-pertimbangan tersebut, saya berpendapat gantirugi yang diberikan oleh L/HMS adalah rendah. Seboleh- bolehnya Perayu mestilah diletakan seperti keadaan sebelum berlakunya kemalangan (Appalasamy a/l Bodoyah v Lee Mon Seng [supra]). Sehubungan itu saya bersetuju dengan hujahan peguamcara Perayu dan memberikan gantirugi sebanyak RM350,000. Rayuan bagi item ini dibenarkan dan keputusan L/HMS diketepikan. Gantirugi khas (atas kadar liabiliti 100%) (a) Kos penjagaan masa hadapan [19] Dalam memutuskan gantirugi bagi item ini, L/HMS telah mengambilkira bahawa kedua-dua Pakar Rehabilitasi Perayu (dari Hospital Sungai Buloh bertarikh 20.10.2019 di muka surat 63 – 84, Rekod Rayuan) dan Responden (dari Life Care Diagnosis Medical Sdn Bhd di muka surat 137 – 158, Rekod Rayuan) bersetuju bahawa Perayu memerlukan penjagaan dan penyeliaan seorang orang gaji. Berdasarkan kepada keadaan Perayu masakini, saya bersetuju bahawa Perayu memerlukan seorang orang gaji tetapi penjagaan ini tidak diperlukan sepanjang hayat Perayu. Ini adalah kerana untuk suatu tempoh tertentu di masa hadapan, Perayu akan S/N sgi0sl1wEmf2ql48XLRlQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 dapat membiasakan diri dengan keadaannya dan berdikari dalam menjalani kehidupannya. [20] Saya juga selanjutnya mengambilkira: (i) bahawa Perayu kini keupayaan membantu kerja ayahnya dan bermakna boleh bergerak sendiri. (ii) keadaan sekeliling, lokasi dan tempat tinggal Perayu. (iii) tugas memantau Perayu ini boleh dibuat oleh pembantu tempatan. [21] Sehubungan itu saya bersetuju dengan dapatan mahkamah yang membenarkan bayaran pembantu tempatan sebanyak RM800 sebulan selama 15 tahun dan menjadikan jumlah gantirugi bagi item ini sebanyak RM144,000. [22] Rayuan bagi item ini ditolak dan keputusan L/HMS dikekalkan. (b) Kos rawatan masa hadapan i) kos fisioterapi ii) kos terapi pekerjaan iii) kos intensive cognitive training [23] Saya berpendapat Perayu berhak untuk mendapat rawatan yang terbaik bagi pemulihannya sama ada di hospital kerajaan atau hospital swasta. Namun bagi rawatan masa hadapan ini, bukanlah rawatan terhadap kecederaan yang di alami kerana kecederaan telah pulih. Rawatan masa hadapan ini adalah suatu rawatan susulan untuk rehabilitasi. [24] Rawatan rehabilitasi yang baik masa kini boleh di dapati di hospital kerajaan dengan kos yang lebih murah. Tiada keterangan dikemukakan Perayu tentang keperluan pelbagai sesi rawatan berkenaan di hospital swasta dengan kos yang tinggi. Saya bersetuju berdasarkan kepada keadaan Perayu masakini, Perayu mempunyai keperluan untuk medical treatment seperti yang dihujahkan oleh peguamcaranya di perenggan 38(5) hujahan bertulis (Lampiran 11) berjumlah RM41,000. Ini selars dengan keputusan kes Appalasamy a/l Bodoyah v Lee Mon Seng [supra] yang menyatakan: S/N sgi0sl1wEmf2ql48XLRlQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 “The victim of a tortious act is entitled to seek the best medical facility and the best medical opinion in order to put him back in his original position as though the tort had not been committed.” [25] Berdasarkan kepada alasan yang sama di atas, saya berpendapat L/HMS telah membuat keputusan yang tepat, adil, munasabah dan dapat memampaskan Perayu dengan memberikan gantirugi kos rawatan masa hadapan sebanyak RM720. [26] Oleh yang demikian saya memberikan gantirugi bagi item ini seperti berikut: RM41,000 + RM720 = RM41,720. Keputusan L/HMS bagi item ini dikekalkan dengan tambahan gantirugi. Keputusan [27] Atas imbangan kebarangkalian, saya membenarkan sebahagian rayuan ini dan sebahagian lagi ditolak [28] Faedah 5% setahun dari tarikh keputusan rayuan hingga penyelesaian bayaran. [29] Responden diperintahkan membayar kos sebanyak RM5,000 kepada Perayu dan tertakluk kepada 4% alokatur. Bertarikh: 19 November 2023. (ROSLAN BIN ABU BAKAR) Hakim Mahkamah Tinggi Kota Bharu. S/N sgi0sl1wEmf2ql48XLRlQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 PIHAK-PIHAK: Bagi pihak Perayu: Tetuan N M Tiong & Co, No. 2818-G, Tingkat Satu, Jalan Che Su, 15000 Kota Bharu, Kelantan. Bagi pihak Responden: Tetuan M Ravendran & Associates, No.37, Taman Melati, 18000 Kuala Krai, Kelantan. S/N sgi0sl1wEmf2ql48XLRlQ **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

WA-12BNCvC-139-10/2022

PERAYU 1. ) DEENESHWARAN A/L SELLATHURAI 2. ) ANJALA DEVI A/P N MUTHU RESPONDEN 1. ) NURSHAMIMIE SYUHADA BINTI RAIMEY - seorang kurang upaya yang menuntut melalui bapanya RAIMEY BIN A RAHMAN sebagai wakil litigasi beliau 2. ) Rahime Bin Harun

-Running down case.-Appeal against SCJ decision of both quantum and liability.-Whether SCJ was wrong in deciding that both Appellants were 100% liable against the 1st Respondent. -Whether SCJ was wrong in deciding 50% liability on the Appellants and 50% liability on the 2nd Respondent.

21/11/2023

YA Dato' Rozana Binti Ali Yusoff

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=334ce7da-bfda-4ec9-9516-434638832c33&Inline=true

1 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN KUALA LUMPUR, MALAYSIA RAYUAN SIVIL NO.: WA-12BNCvC-139-10/2022 ANTARA 1. DEENESHWARAN A/L SELLATHURAI [NO. K/P: 991005-04-5305] 2. ANJALA DEVI A/P N MUTHU [NO. K/P: 660115-10-6774] … PERAYU-PERAYU DAN NURSHAMIMIE SYUHADA BINTI RAIMEY seorang kurang upaya yang menuntut melalui bapanya RAIMEY BIN A RAHMAN sebagai wakil litigasi beliau [NO. K/P: 730905-11-5297] RAHIME BIN HARUN iaitu bapa dan/atau penjaga yang sah dan Wakil diri kepada harta pusaka simati, MUHAMMAD HAIQAL BIN RAHIME … RESPONDEN-RESPONDEN 21/11/2023 12:32:09 WA-12BNCvC-139-10/2022 Kand. 28 S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 ALASAN PENGHAKIMAN A. PENDAHULUAN [1] Ini adalah rayuan Perayu-Perayu/Defendan-Defendan terhadap keseluruhan keputusan Hakim Mahkamah Sesyen (HMS) Kuala Lumpur bertarikh 29.9.2022 ke atas liabiliti dan kuantum selepas perbicaraan penuh bagi kes tuntutan kemalangan jalan raya. [2] HMS memutuskan bahawa liabiliti adalah 50% terhadap Perayu- Perayu/Defendan-Defendan dan 50% terhadap Pihak Ketiga Muhammad Haiqal bin Rahime (simati) manakala liabiliti Perayu-Perayu/Defendan- Defendan terhadap Plaintif/Responden adalah 100%. Seterusnya diperintahkan juga Perayu-Perayu/Defendan-Defendan hendaklah membayar kepada Plaintif /Responden gantirugi seperti berikut:- [a] Gantirugi Am untuk kecederaan, kesakitan dan kehilangan ameniti sebanyak RM368,000.00 (Ringgit Malaysia: Tiga Ratus Enam Puluh Lapan Ribu Sahaja) dengan faedah 5% setahun dari tarikh penyampaian Saman sehingga ke tarikh penghakiman; S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 [b] Gantirugi Khas untuk kehilangan pendapatan sebenar sebanyak RM62,400.00 (Ringgit Malaysia: Enam Puluh Dua Ribu Empat Ratus Sahaja) dengan faedah 2.5% setahun dari tarikh kemalangan sehingga tarikh penghakiman; [c] Gantiirugi Khas untuk kehilangan pendapatan masa hadapan sebanyak RM168,000.00 (Ringgit Malaysia: Satu Ratus Enam Puluh Lapan Ribu Sahaja); [d] Gantirugi Khas untuk "recommended therapeutic interventions to improve functional outcome" sebanyak RM28,600.00 (Ringgit Malaysia: Dua Puluh Lapan Ribu Enam Ratus Sahaja); [e] Gantirugi Khas untuk "occupational therapy" sebanyak RM78,375.00 (Ringgit Malaysia: Tujuh Puluh Lapan Ribu Tiga Ratus Tujuh Puluh Lima Sahaja); [f] Gantirugi Khas untuk "rehabilitation equipment and assistive devices" sebanyak RM69,825.00 (Ringgit Malaysia: Enam Puluh Sembilan Ribu Lapan Ratus Dua Puluh Lima Sahaja); S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 [g] Gantirugi Khas untuk "recommendations for occupational therapy specific treatment therapy aids/exercises equipment as well as home adaptations" sebanyak RM39,600.00 (Ringgit Malaysia: Tiga Puluh Sembilan Ribu Enam Ratus Sahaja); [h] Gantirugi Khas untuk "occupational therapy assistive/exercise devices to assist with home rehabilitation program" sebanyak RM1,347,250.00 (Ringgit Malaysia: Satu Juta Tiga Ratus Empat Puluh Tujuh Ribu Dua Ratus Lima Puluh Sahaja); [i] Faedah sebanyak 5% ke atas jumlah penghakiman RM2,162,050.00 (Ringgit Malaysia: Dua Juta Satu Ratus Enam Puluh Dua Ribu Lima Puluh Sahaja) dari tarikh penghakiman sehingga tarikh penyelesaian penuh; [j] Kos tindakan ini sebanyak RM48,860.00 (Ringgit Malaysia: Empat Puluh Lapan Ribu Lapan Ratus Enam Puluh Sahaja); [k] Dan Pihak Ketiga perlu membayar kepada pihak Defendan- Defendan kes prosiding Pihak Ketiga serta kos tindakan sebanyak RM41,238.00 (Ringgit Malaysia: Empat Puluh Satu Ribu Dua Ratus Tiga Puluh Lapan Sahaja); S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 [3] Untuk kemudahan rujukan dalam rayuan ini, pihak-pihak akan disebut sepertimana pihak-pihak dalam prosiding di Mahkamah Sesyen. B. LATAR BELAKANG KES [4] Tuntutan Plaintif di Mahkamah Sesyen adalah berkenaan dengan tuntutan gantirugi akibat dari satu kemalangan jalanraya yang berlaku di Jalan Genting Klang, Kuala Lumpur pada awal pagi 20.05.2018. Plaintif merupakan pembonceng motosikal manakala simati adalah penunggang motosikal nombor pendaftaran VAP 3749 yang terlibat dalam kemalangan dengan motokar nombor pendaftaran WC 567 R yang dipandu oleh Defendan Pertama. Defendan Kedua merupakan pemilik berdaftar motokar WC 567 R tersebut. [5] Versi Plaintif menyatakan Defendan-defendan telah melanggar motosikal yang dipandu oleh simati dari arah belakang tetapi Defendan- defendan menyatakan bahawa mereka tidak terlibat langsung dalam kemalangan tersebut. Defendan-defendan mendakwa motosikal yang dipandu oleh simati telah terjatuh sebelum melanggar pembahagi jalan. Defendan Pertama dan kawan-kawannya semasa kejadian hanya berhenti untuk membantu simati dan Plaintif semasa kemalangan tersebut. S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 [6] Defendan-defendan selanjutnya menyatakan bahawa kemalangan yang berlaku adalah disebabkan kecuaian simati iaitu perlanggaran sendiri tanpa apa-apa sentuhan dan/atau geseran dengan motokar yang dipandu oleh Defendan Pertama pada masa kejadian. C. ALASAN RAYUAN [7] Defendan-Defendan di dalam Memorandum Rayuan mengemukakan alasan-alasan rayuan terhadap keseluruhan keputusan HMS berkenaan dengan isu Liabiliti dan Kuantum seperti berikut: [a] HMS yang bijaksana telah terkhilaf dari segi fakta dan undang- undang dalam menilai dan menentukan liabiliti pihak-pihak apabila meletakkan liabiliti 50% terhadap Defendan-Defendan dan 50% terhadap simati walaupun Defendan-Defendan dalam pembelaannya memplidkan penafian terhadap sebarang penglibatannya dalam kemalangan tersebut. [b] HMS yang bijaksana telah terkhilaf dari segi fakta dan undang- undang dalam menilai dan menentukan liabiliti pihak-pihak apabila menerima keterangan Ahli Kimia bahawa terdapatnya perlanggaran di antara kedua-dua kenderaan walaupun hanya terdapat pindahan cat satu S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 hala sahaja dan bukannya dua hala di antara motosikal No VAP 3749 pada bahagian kanan motokar WC 1567 R; [c] HMS yang bijaksana telah terkhilaf dari segi fakta dan undang- undang dalam menilai dan menentukan liabiliti pihak-pihak apabila gagal mengambilkira fakta bahawa Ahli Kimia telah gagal mengemukakan laporan penuh di Mahkamah bagi membuktikan sama ada ujian kimia yang dijalankan telah mengikut piawaian atau "standard" bagi ujian kimia; [d] HMS yang bijaksana telah terkhilaf dari segi fakta dan undang- undang dalam menilai dan menentukan liabiliti pihak-pihak apabila gagal mengambilkira pernyataan Ahli Kimia bahawa terdapat kontaminasi ("contamination") di antara sample cat motosikal dan motokar kerana sample cat tersebut diletakkan dalam satu sampul surat yang sama; [e] HMS yang bijaksana telah terkhilaf clari segi fakta clan undang- undang dalam menilai dan menentukan liabiliti pihak-pihak apabila apabila gagal mengambilkira keterangan Pegawai Penyiasat bahawa kes telah diklasifikasikan sebagai "No further Action - NFA" kerana tidak dapat dipastikan bagaimana pindahan cat berlaku di antara kedua-dua kenderaan; S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 [f] HMS yang bijaksana telah terkhilaf dari segi fakta dan undang- undang dalam menilai dan menentukan liabiliti pihak-pihak apabila tidak mengambilkira keterangan saksi Defendan-Defendan bahawa motosikal simati yang berada di hadapan mereka telah mengalami kemalangan secara sendiri ("self-accident'') apabila melanggar tembok/pembahagi yang berada di tengah jalan. Defendan-Defendan kemudiannya memberhentikan kenderaan mereka di bahu jalan bagi membantu simati dan Plaintif; [g] HMS yang bijaksana telah terkhilaf dari segi fakta dan undang- undang dalam menilai kuantum apabila membenarkan tuntutan gantirugi am yang "excessive" bagi severe traumatic brain injury with diffuse axonal injury sebanyak RM350,000.00; [h] HMS yang bijaksana telah terkhilaf dari segi fakta dan undang- undang dalam menilai kuantum apabila membenarkan tuntutan rehabilitasi masa hadapan yang "excessive" tanpa mengambilkira dapatan fakta yang diperoleh semasa perbicaraan; [i] HMS yang bijaksana telah terkhilaf dari segi fakta dan undang- undang dalam menilai kuantum apabila membenarkan tuntutan kos rehabilitasi masa hadapan di hospital swasta walaupun Plaintif menerima S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 rawatan tersebut secara percuma di hospital kerajaan iaitu Hospital Sungai Buloh dan Pusat Kesihatan Rawatan Kusta Sungai Buloh; [j] HMS yang bijaksana telah terkhilaf dari segi fakta dan undang- undang dalam menilai kuantum apabila membenarkan tuntutan rehabilitasi masa hadapan tanpa 1/3 tolakan bagi "contingencies"; [k] HMS yang bijaksana telah terkhilaf dari segi fakta dan undang- undang dalam menilai kuantum apabila membenarkan tuntutan kehilangan pendapatan masa hadapan Plaintif pada kadar RM1,200.00 sebulan walaupun gaji bersihnya adalah RM1,182.14 sebulan; [l] HMS yang bijaksana telah terkhilaf dari segi fakta dan undang- undang dalam menilai kuantum apabila membenarkan tuntutan kehilangan pendapatan masa hadapan tanpa 1/3 tolakan bagi kos semasa bekerja seperti kos makanan dan kos perjalanan ke tempat kerja; [m] HMS yang bijaksana telah terkhilaf dari segi fakta dan undang undang dalam menilai kuantum apabila membenarkan tuntutan kos perjalanan bagi rawatan yang tinggi sebanyak RM500.00 sebulan selama 48 tahun. Jumlah keseluruhan RM270,000.00 walaupun jarak antara S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 hospital dan rumah Plaintif hanyalah 26.2 KM dan kadar rawatan setiap sebulan semakin berkurang bagi setiap tahun; [n] HMS yang bijaksana telah terkhilaf dari segi fakta dan undang- undang dalam menilai kuantum apabila membenarkan tuntutan kos penjaga berjumlah RM1,500.00 sebulan selama 48 tahun Jumlah keseluruhan RM864,000.00 walaupun dapatan pakar bahawa Responden Pertama tidak memerlukan "nursing service"; dan [o] HMS yang bijaksana telah terkhilaf dari segi fakta dan undang- undang dalam menilai kuantum apabila membenarkan tuntutan kos "home accessability" sebanyak RM150,000.00. D. ANALISA DAN KEPUTUSAN [8] Adalah undang-undang mantap bahawa Mahkamah yang mendengar rayuan tidak akan campur tangan dan mengubah keputusan HMS melainkan Mahkamah mendapati HMS telah secara nyata tersilap (plainly wrong) di dalam membuat dan/atau mencapai sesuatu keputusan. Prinsip ini telah ditentukan dalam kes Mahkamah Persekutuan di dalam kes Ng Hoo Kui & Anor v. Wendy Tan Lee Peng (administratix for the S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 estate of Tan Ewe Kwang, deceased) & Ors [2020] 10 CLJ 1; [2020] 12 MLJ 67. [9] Mahkamah ini hanya akan campurtangan dan mengenepikan keputusan HMS sekiraya terdapat kekhilafan yang nyata. Dalam kes Lee Hock Lai v. Yeoh Wah Pein [1998] 1 LNS 364; [1999] 5 MLJ 172, Mahkamah memutuskan seperti berikut: "It is a basic principle of law that an appellate court should be slow in disturbing a finding of fact by a lower court. But it is also the principle that an appellate court should reverse a finding of fact by the lower court if such finding is clearly against the weight of evidence." [10] Mahkamah perlu memutuskan isu-isu rayuan yang berikut: [a] bagi isu liabiliti, sama ada HMS telah membuat penghargaan kehakiman yang mencukupi (sufficient judicial appreciation) keterangan yang dikemukakan apabila HMS memutuskan versi Plaintif adalah lebih berkemungkinan (more probable) dan Defendan adalah bertanggugan 100% atas kemalangan jalan raya tersebut; dan S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 [b] bagi isu kuantum, sama ada penilaian gantirugi yang dibuat oleh HMS adalah betul tidak terlampau berlebihan berdasarkan laporan penilaian yang dikemukakan oleh pihak-pihak. Rayuan Terhadap Liabiliti [11] Saya telah meneliti alasan penghakiman HMS dalam mencapai penemuan terhadap liabiti. HMS telah membuat dapatan sebagaimana dinyatakan di dalam alasan penghakiman seperti berikut: “[16] Penglibatan kenderaan Defendan-defendan telah dinyatakan di dalam laporan polis yang dibuat oleh Rahime bin Harun iaiti bapa kepada penunggang motosikal. Menurut SP1, berdasarkan laporan polis tersebut menyatakan bahawa terdapat seorang saksi yang menyatakan bahawa motokar Defendan terlibat dengan perlanggaran ini. Namum begitu, butir-butir saksi tersebut tidak diketahui dan saksi tersebut tidak berjaya dijumpai kemudiannya. [17] Kemalangan berlaku pada awal pagi iaitu lebih kurang pukul 5.00 pagi. Bapa kepada Si Mati telah tiba di tempat kemalangan agak awal iaitu pada pukul 5.15 pagi dan Si Mati masih hidup dan berada di tempat kejadian dan masih belum dibawa ke hospital. S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 [18] Maklumat yang diperoleh daripada saksi yang tidak dapat dikesan kembali tersebut bukanlah satu “hearsay” kerana bapa Si Mati berada di tempat kejadian dan mendapatkan maklumat tersebut daripada saksi yang berada di tempat kejadian dan memasukkan maklumat tersebut di dalam laporan polisnya. [19] Mahkamah menerima keterangan SP1 bahawa terdapatnya pelanggaran antara motosikal yang dibonceng oleh Plaintif dan kenderaan Defendan. Namun begitu, bagaimana pelanggaran berlaku dan siapakah yang bersalah dalam menyebabkan kemalangan ini tidak dapat dipastikan. [20] Mahkamah menerima keterangan ahli kimia SP3 serta laporan kimia P8 bahawa terdapat perpindahan cat motosikal Plaintif pada motokar Defendan. Sampel yang diambil telah diletakkan dalam plastik yang berasingan dan ditandakan sebagai M1 dan K1. Walaupun kedua-dua sampel diletakkan dalam sampul surat yang sama, kedua-dua sampel tersebut tidak bercampur dan ini bukanlah satu isu yang dipertikaikan oleh pihak Mahkamah. [21] Dalam kes ini, perpindahan cat yang dapat dikesan hanya pada badan motokar Defendan dan tiada kesan cat boleh dikesan pada motosikal Plaintif. SP3 telah pun memberi penjelasan mengenai perkara ini iaitu kerosakan motosikal yang teruk menyebabkan tiada kesan perpindahan cat boleh dikesan dan Mahkamah menerima penjelasan tersebut. S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 [22] Mahkamah tidak dapat menerima hujahan Defendan bahawa kesan perpindahan cat motosikal didapati pada motokar Defendan kerana serpihan motosikal terpelanting dan mengenai motokar Defendan. Ini kerana mengikut penjelasan SP3, perpindahan cat akan berlaku apabila terdapatnya tekanan yang kuat antara dua buah objek pada jarak yang dekat. Oleh yang demikian, motokar Defendan perlulah berada dalam jarak yang dekar dengan motosikal Plaintif bagi membolehkan perpindahan car tersebut berlaku. Mahkamah juga berpuas hari hanya sample daripada badan motosikal dan motokar yang perlu dianalisa dan serpihan komponen motosikal tidak perlu dianalisa. [23] Mahkamah tidak berpuas hati mengenai percanggahan keterangan SD1 dan SP2 mengenai kesan kerosakan pada bahagian kanan motokar WCJ 567 R. SD1 menyatakan kesan tersebut akibat bergesel di tempat tinggal Defendan Kedua manakala SD2 pula memberi keterangan bahawa kerosakan tersebut terjadi akibat satu kejadian langar lari. [24] Kesan kerosakan tersebut merupakan perkara yang penting dalam kes ini tetapi SD1 dan SD2 memberi keterangan yang berbeza. Keterangan yang berbeza tersebut menjejaskan kredibiliti SD1 dan SD2 sebagai saksi. [25] Mahkamah berpuas hati bahawa terdapatnya perlanggaran antara kedua kenderaan yang terlibat. Namun begitu, mahkamah tidak dapat memastikan versi kemalangan mana yang lebih probable. Oleh yang demikian, mahkamah memutuskan bahawa penunggang motosikal iaitu Pihak Ketiga Simati serta pemandu motokar (SD1) sama-sama bertanggungan S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 menyebabkan kemalangan ini. Memandangkan Plaintif merupakan seorang pembonceng, Plaintif berhak mendapat ganti rugi atas dasar 100% liability terhadap pihak Defendan. Mahkamah juga membenarkan tuntutan Defendan terhadap Pihak Ketiga atas liability yang diputuskan oleh mahkamah terhadap pihak-pihak yang terlibat.” [12] Persoalan utama di sini, bagaimanakah kemalangan tersebut berlaku? Seperti mana yang dikatakan Defendan Pertama dalam pembelaannya menafikan terlibat langsung malah menyatakan kemalangan berlaku akibat dari perbuatan simati yang gagal mengawal motosikalnya lalu melanggar tembok/pembahagi tepi jalan. [13] HMS dalam penemuannya menyatakan walaupun pelanggaran tidak dapat dipastikan bagaimana ianya berlaku dan siapakah yang bersalah dalam menyebabkan kemalangan tersebut, namun HMS menerima keterangan Ahli Kimia (SP3) serta laporan kimia P8 bahawa terdapat perpindahan cat motosikal Plaintif pada motokar Defendan. HMS juga menerima penjelasan SP3 bahawa kerosakan motosikal yang teruk menyebabkan tiada kesan perpindahan cat boleh dikesan pada motosikal tersebut. S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 [14] HMS juga telah menyatakan bahawa beliau tidak menerima hujah Defendan bahawa cat pada motokar Defendan mungkin terjadi akibat serpihan motosikal yang telah terpelanting dan terkena badan motokar Defendan. Sebaliknya HMS menerima keterangan SP3 yang menyatakan untuk perpindahan cat berlaku, perlu ada tekanan yang kuat antara dua objek yang berada pada jarak yang dekat. Seterusnya, HMS menolak hujahan Defendan bahawa kedua-dua sample cat telah bercampur kerana kedua-dua sample yang diambil telah diletakkan dalam plastik yang berasingan dan kemudian diletakkan dalam sampul surat. [15] HMS juga mendapati terdapat percanggahan dalam keterangan saksi Defendan (SDI dan SD2) mengenai kesan kerosakan pada motokar Defendan dan keterangan yang berbeza mengenai laporan polis oleh Defendan Pertama dengan pleadingnya dan kesan kerosakan pada motokar yang mana HMS telah membuat keputusan bahawa SDI dan SD2 adalah tidak kredible. [16] Dari keterangan-keterangan yang dibawa kehadapannya, HMS membuat satu penemuan fakta dengan memutuskan bahawa terdapatnya satu perlanggaran antara motokar Defendan dengan motosikal yang dipandu oleh simati dan juga memutuskan kedua-duanya sama-sama bertanggungan menyebabkan kemalangan tersebut. S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 [17] Oleh yang demikian, saya mendapati HMS tidak terkhilaf dari segi fakta dan undang-undang dalam membuat pertimbangan yang sewajarnya serta menilai keterangan-keterangan yang material dan relevan yang telah dikemukakan dalam mencapai satu penemuan fakta yang betul. HMS juga tidak terkhilaf dalam membuat keputusan yang mendapati atas imbangan keberangkalian bahawa Defendan dan simati masing-masing bertanggungan setakat 50%. [18] Berkenaan dengan liabiliti terhadap Plaintif yang merupakan pembonceng motorsikal sebagai “penumpang yang tidak bersalah” (an innocent passenger), saya bersetuju bahawa HMS telah membuat keputusan yang betul dalam memutuskan bahawa Plaintif berhak mendapat ganti rugi pada kadar 100% liabiliti terhadap Defendan- Defendan. [19] Saya menerima pakai kes Muhamad Jafri Jantan & Ors v. Zainal Md Rais [2005] 1 CLJ 694 yang mana Mahkamah Rayuan memutuskan: [1] Plaintif kedua adalah seorang 'penumpang tidak berdosa' dan dengan itu berhak kepada gantirugi pada kadar 100%. Sebagai pembonceng, beliau tidak seharusnya didapati bertanggungan secara vicarious atas kecuaian yang disumbang plaintif pertama. S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 Pesuruhjaya kehakiman dengan itu silap apabila membahagikan tanggungan pada kadar 50:50 di antara plaitnif kedua dan defendan. Rayuan Terhadap Kuantum [20] Adalah tidak dapat dinafikan bahawa bagi sesuatu kes yang melibatkan tuntutan ekoran daripada kemalangan jalan raya yang dikategorikan sebagai tuntutan di bawah undang-undang tort gantirugi yang boleh diberikan oleh mahkamah ialah gantirugi khas dan gantirugi am. Mahkamah Persekutuan di dalam kes Yang Salbiah & Anor v. Jamil bin Harun [1981] 1 LNS 106; [1981] 1 MLJ 292 memberikan panduan berkenaan gantirugi yang melibatkan kemalangan jalan raya seperti berikut: "It must be remembered that the purpose of damages is to try, so far as humanly possible, to put the victim back to the position he would have been in but for the accident. The damages must be fair, adequate and not excessive. A reasoned judgment must therefore be given by the judge, following legal principles and precedents. Other awards in other cases should normally be prayed in aid, but consideration must be given where the circumstances differ." S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 [21] Sebagai panduan dalam perkara rayuan terhadap Kuantum, Mahkamah Persekutuan dalam kes United Plywood and Sawmill Ltd v. Lock Ngan Loi [1970] 1 LNS 164, menyatakan: "This Court normally does not interfere with an assessment of damages even where the award seemed much too high, so long as there has not been any error of principle discerned the sum manifestly excessive." [22] Dalam kes Mahmod bin Kailan v. Goh Seng Choon & Anor [1976] 2 MLJ 239 di mana Mahkamah Persekutuan memutuskan seperti berikut: “The Appellate Court can only interfere with the award of damages by the trial court if it is shown that the trial judge has acted on a wrong principle of law or that he has misapprehended the facts or he has made a wholly erroneous estimate of the damage suffered” [23] Defendan-Defendan dalam rayuannya tidak berpuas hati terhadap bagi beberapa award untuk kecederaan yang dibenarkan oleh HMS yang dikatakan kelebihan melampau (excessive). Gantirugi Am [a] Severe traumatic brain injury with diffuse axonal injury sebanyak RM 350,000.00 S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 [i] Bagi severe traumatic brain injury with diffuse axonal injury HMS memutuskan award sebanyak RM350,000.00 adalah yang wajar dan memadai berlanjutan dengan kecederaan parah yang dialami oleh Plaintif sebagaimana tercatat didalam kedua-dua laporan perubatan yang dipersetujui oleh kedua-dua pihak. Laporan Perubatan oleh Plaintif GCS 5/15 on admission (8/15 at time of discharge) on tracheostomy from 23.5.2018 to 7.8.2018 3rd nerve palsy weaker right upper limb weaker both lower limb foot drop incontinent deficits in immediate and short term recall, concentration, executive functioning and information processing speed retrograde amnesia no capacity to stand and/or walk higher risk of delayed post traumatic seizures dysdiadochekinesia (is the inability to define, inability to perform rapid alternating muscle movements) S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 dysmetria (is a condition in which there is improper measuring of distance in muscular acts) hyperreflexia (overactive or overresponsive reflexes) Laporan Perubatan oleh Defendan. a) She has a 3rd nerve palsy on the right side. b) She had mild upper motor neuron facial paresis on the right side. c) She had dysmetria and dysdiadokokinesia. She has incoordination in both upper limbs. The power and function has been described as above. She has no capacity to stand or walk. d) Cognitively, there are deficits in her immediate and short-term recall, concentration, executive functioning and information processing speed. e) There are no symptoms of headaches or giddiness. f) Behaviorally. The mother said that the patient is temperamental at times. She is also childish in her mannerism. [ii] Pada pengamatan saya, melihat kepada kecederaan yang dialami oleh Plaintif adalah satu kecacatan kekal, jumlah gantirugi tersebut adalah tidak boleh dianggap kelebihan melampau memandangkan Defendan-Defendan telah mencadangkan RM300,000.00 manakala Plaintif pula mencadangkan RM450,000.00. Oleh itu saya berpendapat bahawa jumlah award RM350,000.00 tidak seharusnya diubah. S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 [b] Kos Rehabilitasi Masa Hadapan [i] Defendan menghujahkan Plaintif boleh mendapat rawatan hospital Kerajaan secara percuma berbanding dengan di Hospital Swasta serta Kos rehabilitasi yang dibenarkan juga telah tidak mengambilkira 1/3 tolakan bagi "contingencies". Dalam menangani isu ini, HMS mengambil pendekatan berikut: “[52] Mahkamah walau bagaimanapun berpendapat Plaintif berhak mendapat rawatan yang terbaik untuk dirinya akibat kecederaan yang dialami. Hospital Kerajaan sememangnya mampu untuk menyediakan perkhidmatan yang diperlukan oleh Plaintif tetapi isu yang selalu berlaku di hospital kerajaan ialah kadar kekerapan rawatan yang boleh disediakan serta tempoh menunggu untuk mendapatkan rawatan. Oleh yang demikian, Mahkamah berpendapat dengan keadaan Plaintif yang tidak begitu sempurna, adalah lebih baik dan memudahkan pihak keluarga untuk Plaintif mendapatkan rawatan di hospital swasta dengan kadar bayaran yang berpatutan. [53] Berdasarkan laporan pakar Defendan, Plaintif perlu dirujuk kepada multidisciplinary specialist consults dan rehab specialist consultations. Bagi multidisiplinary specialist consults jumlah kekerapan yang dicadangkan ialah 2 - 3 kali, untuk dua tahun yang pertama, 4 - 6 kali S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 untuk satu tahun berikutnya dan sekali setahun untuk tahun-tahun berikutnya. [54] Bagi rehab specialist consultations jumlah kekerapan yang dicadangkan ialah 2 - 3 kali untuk tahun yang pertama, 1-2 kali untuk tiga tahun berikutnya dan sekali setahun untuk tahun-tahun berikutnya. Jumlah kos yang dicadangkan bagi setiap kali konsultasi ini adalah antara RM·150.00 - RM 400.00 “ [ii] Saya bersetuju dengan HMS bahawa Plaintif berhak mendapat rawatan yang terbaik untuk dirinya akibat kecederaan yang dialami setelah mengambil kira faktor yang sewajarnya sebagaimana yang dinyatakan diatas. [iii] Dalam hal menentukan tuntutan untuk rawatan perubatan masa hadapan, sama ada di hospital swasta atau awam, persoalan kewajaran dalam membuat apa-apa tuntutan perlu menjadi pertimbangan utama sebagaimana diputus oleh Mahkamah Persekutuan dalam kes Inas Faiqah Mohd Helmi (A Child Suing Through Her Father And Next Friend; Mohd Helmi Abdul Aziz) v. Kerajaan Malaysia & Ors [2016] 2 CLJ 885. Di sini saya berpendapat HMS telah mempertimbangkan dengan wajar alasan- S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 alasan yang dikemukakan oleh Plaihtif dalam menuntut kos untuk rawatan perubatan akan datang di hospital swasta. [iv] Dalam membenarkan kos rehabilitasi, HMS telah memberi gantirugi tanpa tolakan 1/3 berdasarkan apa yang dicadangkan dalam laporan pakar dengan mengambil kira jangka hayat Plaintif selama 48 tahun. Dalam hal ini, saya bersetuju dengan dapatan HMS dan tidak memerlukan campurtangan dari Mahkamah ini dalam mempertikaikan laporan pakar tersebut. Gantirugi Khas [a] Kehilangan Pendapatan. [i] Kesemua laporan pakar perubatan mengesahkan bahawa Plaintif tidak boleh kembali bekerja kepada sedia asal akibat kecederaan yang dialami. Gaji kasar Plaintif sebagai juruwang adalah RM1,200.00 tetapi Defendan-Defendan dalam kes ini tidak mengambil kira bahawa Plaintif memperolehi elaun kerja lebih masa dan juga elaun sebagai juruwang. Pada pendapat saya adalah wajar apabila HMS telah mengambil kira elaun-elaun yang diperolehi sebagai kos hidup Plaintif sejumlah RM1,200.00 sebagai S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 kehilangan pendapatan masa hadapan tanpa dibuat 1/3 tolakan dari gaji bersih untuk kos sara hidup. [b] Tuntutan Kos Perjalanan Bagi Rawatan. [i] Defendan mencadangkan sejumlah RM100.00 untuk pemeriksaan berkala setiap bulan manakala Plaintif mencadangkan RM500.00 sebulan dengan mengambilkira jarak perjalanan ke hospital dari kediamannya yang mengambil masa 25 minit. Saya juga sependapat dengan HMS bahawa jumlah RM500.00 sebulan adalah wajar dan berpatutan memandangkan Plaintif perlu mendapatkan beberapa kali konsultasi dengan doktor pakar yang berlainan setiap bulan. Tambahan pula, pada pendapat saya, melihat kepada kecederaan yang dialami oleh Plaintif, ia memerlukan kenderaan khas seperti ambulan untuk membawanya ke hospital dengan kebiasaan kos ambulan sebanyak RM300.00 untuk satu perjalanan. [c] Kos Penjaga [i] HMS membenarkan RM1,500.00 sebulan sepertimana jumlah yang dicadangkan oleh Plaintif sedangkan Defendan-Defendan S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 cuma mencadangkan RM1,000.00 sebulan. Saya bersetuju dengan HMS dan mendapati RM1,500.00 adalah wajar dan munasabah dengan mengambilkira gaji minimum sebagai garis ukur pada masa sekarang. [d] Home Accessability [i] HMS menolak cadangan oleh Defendan-Defendan sejumlah RM121,000.00 bagi Plantif membuat pengubahsuaian rumah ataupun mendapatkan tempat tinggal lain yang sesuai dengan keadaan Plaintif tetapi sebaliknya HMS membenar sebanyak RM150,000.00. Saya bersetuju bahawa jumlah yang dibenarkan ini adalah wajar setelah mengambilkira kos bahan-bahan binaan dan upah pekerja bagi pengubahsuaian yang telah meningkat pada masa kini apatah lagi untuk membeli satu kediaman yang baru. [24] Oleh yang demikian, bagi kuantum sebagaimana dirayu, saya berpendapat HMS tidak terkhilaf dari segi undang-undang dan fakta dalam mengawadkan jumlah ganti rugi am dan khas yang dirayu oleh Defendan-Defendan. Jumlah tersebut adalah wajar dan tidak dikira melampau (excessive) berdasarkan kecacatan kekal dan masalah kesihatan yang berpanjangan yang dialami oleh Plaintif. S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 [25] Dalam kes Tan Kuan Yau v. Suhindrimani [1985] CLJ Rep 323; [1985] 1 CLJ 429; [1985] 2 MLJ 22 seperti berikut: "The principle that could guide this court in determining whether it should interfere with the quantum of damages is crystal clear. What is also clear is that much depends on the circumstances of each case, in particular the amount of the award. In a particular case therefore it is for the appeal court to consider whether in the light of the circumstances of that case there is an erroneous estimate of the amount of the damage in that, either there was an omission on the part of the Judge to consider some relevant materials, or he had admitted for purposes of assessment some irrelevant considerations. If the court is satisfied or convinced that the Judge has acted upon wrong principles of law then it is justified in reversing; indeed, it is its duty to reverse the finding of the trial Judge." [26] Dalam erti kata lain, Mahkamah yang mendengar rayuan harus tidak sewenang-wenangnya mengubah dapatan hakim bicara berkenaan kuantum semata-mata disebabkan berpendapat bahawa kuantum itu terlalu rendah atau terlalu tinggi. Mahkamah yang mendengar rayuan tidak boleh menggantikan dapatan kuantum semata-mata berpendapat bahawa sekiranya beliau mendengar perbicaraan tersebut kuantum yang akan diberikan adalah berbeza dengan kuantum yang diberikan oleh Mahkamah bicara. Mahkamah yang mendengar Rayuan harus meneliti sama ada dapatan berkenaan kuantum itu telah diasaskan kepada S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 keterangan yang dikemukakan atau berdasarkan fakta yang telah dikemukakan di hadapan Mahkamah. Sekiranya hakim bicara telah tergelincir daripada penelitian keterangan dan fakta dalam menentukan kuantum maka Mahkamah Rayuan berkewajiban untuk menggantikan dapatan kuantum tersebut. Ia juga perlu dilakukan sekiranya hakim bicara telah terkhilaf dengan tidak mematuhi prinsip undang-undang yang mantap berkenaan dengan penentuan kuantum gantirugi. Saya berpendapat melainkan dalam keadaan tersebut saya sewajarnya tidak akan mengganggu dapatan HMS dengan kuantum gantirugi. [27] Sebagai kesimpulannya dan berdasarkan kepada alasan-alasan yang dinyatakan di atas, saya memutuskan bahawa Rayuan ini ditolak dengan kos sebanyak RM5,000.00 dibayar oleh Defendan-defendan kepada Plaintif. Keputusan HMS bertarikh 29.9.2022 dikekalkan. -t.t.- Rozana binti Ali Yusoff Hakim Mahkamah Tinggi Kuala Lumpur Tarikh: 1 November 2023 S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 PEGUAMBELA BAGI PERAYU-PERAYU: TETUAN GAN, HO & RAZLAN HADRI Peguambela dan Peguamcara Suite K-3-10, Level 3, Blok K Solaris Mont’ Kiara No. 2, Jalan Solaris 50480 KUALA LUMPUR PEGUAMBELA BAGI RESPONDEN PERTAMA: TETUAN ABDUL RAHIM & CO. Peguambela dan Peguamcara Suite 12A-07 & 12A-08 12A Floor, Plaza Permata Jalan Kampar Off Jalan Tun Razak 50400 KUALA LUMPUR PEGUAMBELA BAGI RESPONDEN KEDUA: TETUAN DEVINDER & CO. Peguambela dan Peguamcara Suite B18, 1st Floor Block B (Podium), Plaza Pekeliling No. 2, Jalan Tun Razak 50100 KUALA LUMPUR S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 KES-KES YANG DIRUJUK: 1. Ng Hoo Kui & Anor v. Wendy Tan Lee Peng (administratix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 10 CLJ 1; [2020] 12 MLJ 67. 2. Lee Hock Lai v. Yeoh Wah Pein [1998] 1 LNS 364; [1999] 5 MLJ 172. 3. Muhamad Jafri Jantan & Ors v. Zainal Md Rais [2005] 1 CLJ 694. 4. Yang Salbiah & Anor v. Jamil bin Harun [1981] 1 LNS 106; [1981] 1 MLJ 292. 5. United Plywood and Sawmill Ltd v. Lock Ngan Loi [1970] 1 LNS 164. 6. Mahmod bin Kailan v. Goh Seng Choon & Anor [1976] 2 MLJ 239. 7. Inas Faiqah Mohd Helmi (A Child Suing Through Her Father And Next Friend; Mohd Helmi Abdul Aziz) v. Kerajaan Malaysia & Ors [2016] 2 CLJ 885. 8. Tan Kuan Yau v. Suhindrimani [1985] CLJ Rep 323; [1985] 1 CLJ 429; [1985] 2 MLJ 22. S/N 2udMM9q/yU6VFkNGOIMsMw **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

DA-12B-43-09/2022

PERAYU MOHD JASMANI BIN MAT DAUD @ MOHD DAUD RESPONDEN 1. ) MUHAMMAD ASRUL BIN ABDULLAH 2. ) CHE NOORZAN BINTI AB RAHMAN

KEMALANGAN JALAN RAYA: Isu yang perlu diputuskan mahkamah adalah sama ada kuantum dan jumlah award yang diberikan oleh L/HMS adil, munasabah serta mencukupi untuk memampaskan Perayu.

21/11/2023

YA Dato' Roslan Bin Abu Bakar

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=29aab92f-fb8d-466b-abb0-b39ec98096b3&Inline=true

Microsoft Word - Appeal 12B-43-9-22 MVA kuantum Md Jasmani 1 DALAM MAHKAMAH TINGGI MALAYA DI KOTA BHARU DALAM NEGERI KELANTAN DARUL NAIM, MALAYSIA RAYUAN SIVIL NO: DA-12B-43-09/2022 ANTARA MOHD JASMANI BIN MAT DAUD @ MOHD DAUD … PERAYU DAN 1) MUHAMMAD ASRUL BIN ABDULLAH 2) CHE NOORIZAN BINTI AB RAHMAN … RESPONDEN PENGHAKIMAN Pengenalan [1] Perayu memfailkan rayuan ini kerana tidak berpuas hati kepada sebahagian award yang diberikan oleh Hakim Mahkamah Sesyen yang terpelajar (selepas ini dipanggil “L/HMS”) bagi gantirugi am dan gantirugi khas dalam satu tuntutan kemalangan jalanraya. [2] Perayu pada masa material adalah pemandu motosikal bernombor PLT 1153. [3] Responden Pertama adalah pemandu motokar bernombor WFN 5380, manakala Responden Kedua adalah pemilik berdaftar motokar berkenaan dan merupakan majikan dan/atau prinsipal Responden Pertama. Fakta [4] Pada 9.7.2020 jam lebih kurang 9.45 malam, Perayu sedang menunggang motosikal bernombor PLT 1153 dari Pasir Mas menghala ke Kampong Jerulong, Salor melalui Jalan Pasir Mas – Salor. [5] Setibanya di hadapan stesyen minyak Petron Salor, telah berlaku suatu pertembungan dengan motosikal Perayu dengan sebuah motokar bernombor WFN 5380 yang dipandu Responden Pertama yang dating dari arah bertentangan. [6] Ekoran dari pertembungan tersebut, Perayu telah mengalami kecederaan dan motosikalnya mengalami kerosakan pada beberapa bahagian. 21/11/2023 11:20:03 DA-12B-43-09/2022 Kand. 15 S/N L7mqKY37a0arsLOeyYCWsw **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 [7] Dalam perbicaraan penuh, L/HMS telah memutuskan Pihak Responden bertanggungan 100% dalam kemalangan tersebut. Isu [8] Isu yang perlu diputuskan mahkamah adalah sama ada kuantum dan jumlah award yang diberikan oleh L/HMS adil, munasabah serta mencukupi untuk memampaskan Perayu. Penelitian dan penemuan mahkamah [9] Sebelum memutuskan isu kuantum ini, saya telah merujuk kepada beberapa kes mantap berikut sebagai panduan iaitu: Ong Ah Long v Dr. S Underwood [1983] 2 CLJ 198: “It must be borne in mind that damages for personal injuries are not punitive and still less a reward. They are simply compensation that will give the injure party reparation for the wrongful act and not for all the natural and direct consequences of the wrongful act, so far as money can compensate...”. Wong Li Fatt William (an infant) v Haidawati bte Bolhen & Anor [1994] 2 MLJ 497: “In considering the issue of quantum of damages, I bear in mind that an award must be fair which means that there must be a proper compensation for the injury suffered and the loss sustained”. Ong Ah Long v Dr S Underwood [supra]: “It is well established principle that special damages, have to be specifically pleaded and specifically proved.... The reason that special damages have to be specially pleaded is to comply with its object which is to crystallize the issue and to enable both parties to prepare for trial”. [10] Setelah meneliti dan menimbangkan hujahan kedua-dua pihak, rekod rayuan, nota keterangan, eksibit-eksibit dokumentar dan alasan penghakiman L/HMS, saya mendapati dan memutuskan seperti berikut: S/N L7mqKY37a0arsLOeyYCWsw **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 Gantirugi am (atas dasar 100% liabiliti) (i) closed comminuted fracture of left femoral head pipkin III dan (ii) complex left hip dislocation [11] Bagi item ini peguam Plaintif menghujahkan gantirugi sebanyak RM100,000 dan dikira secara bersama dengan kecederaan left hip dislocation. Peguam Responden pula menghujahkan sebanyak RM30,000 dan kecederaan left hip dislocation dikira secara berasingan. Manakala L/HMS memberikan award sebanyak RM40,000. [12] Dalam memberikan jumlah award tersebut, L/HMS telah menimbangkan fakta-fakta berikut: (i) kecederaan left hip dislocation perlu dikira berasingan kerana berada di bahagian anggota lain. (ii) pemeriksaan pakar Plaintif secara klinikal mendapati berlakunya kepanjangan kepada left lower limb sebanyak 2 cm. (iii) pemeriksaan pakar Responden pula dengan menggunakan peralatan scanogram mendapati tiada berlaku kependekan atau kepanjangan left lower limb. (iv) pemeriksaan pakar Responden adalah lebih tepat kerana menggunakan kaedah scanogram. (v) The Compendium of Personal Injuries Awards 2018 (selepas ini dipanggil “Compendium”). (vi) kes-kes undang-undang berkaitan. [13] Saya merujuk dan meneliti kepada laporan perubatan awal Perayu (SP2) dari Hospital Raja Perempuan Zainab 2 (selepas ini dipanggil “HRPZ2”) di muka surat 112 dalam Rekod Rayuan, yang menyatakan keputusan Ujian Makmal dan Radiology telah mendapati kecederaan seperti item (i) iaitu: “xray show comminuted fracture of left femoral head and graded as pipkin 4 also dislocation of the left hip.” [14] Dengan kecederaan tersebut, Perayu terpaksa menjalani rawatan skin traction dan kemudiannya menjalani pembedahan left hip bipolar hemiarthroplasty di HRPZ II pada 20.07.2020. S/N L7mqKY37a0arsLOeyYCWsw **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 [15] Laporan pakar Perayu (eksibit P5) di muka surat 123 -126 dalam Rekod Rayuan menyatakan hasil dari pemeriksaan doktor pakar telah mendapati keadaan Perayu seperti berikut: (a) limping gait (b) unable to squat (c) unable to tip toeing (d) 2 cm lengthening of left lower limb due to the implant extra length will be permanent. (e) limited ROM of left hip joint (f) tender left hip joint upon grinding test [16] Selanjutnya di perenggan 7 dan 8 di bahagian Prognosis & Comment dalam P5 menyatakan berhubung dengan keadaan Perayu seperti berikut: “7. Due to the pain, patient has now also complaining of lower back pain and left calf pain resulted from the abnormal gait. The above-mentioned physiotherapy and painkiller is important to improve the pain.” “8. He is currently has resume his duty as a custom officer but with difficulty especially upon full weight bearing ambulation.” [17] Saya juga telah meneliti keterangan doktor pakar Perayu (SP3) yang menjalankan pemeriksaan secara klinikal untuk memastikan sama ada ujud kepanjangan atau kependekan pada bahagian left lower limb berkenaan. Saya mendapati pemeriksaan ini dijalankan secara fizikal kepada seluruh bahagian termasuk bahagian dalaman iaitu sendi, tisu, muscle, ligament, cartilage dan sebagainya. Saya berpendapat ianya lebih berkesan dari pemeriksaan secara kaedah scanogram. [18] Kecederaan dan kesannya (residuals) yang di alami Perayu adalah berkekalan dan jika mampu sembuh pun akan memakan masa yang lama. Saya berpendapat gantirugi yang diberikan mestilah seboleh-bolehnya meletakan Perayu kepada keadaan asal seperti sebelum kemalangan dan bukannya bersifat “memperkayakan diri”. Keadaan kecederaan dan kesan ini juga telah menjejaskan pergerakan harian Perayu termasuk bekerja. S/N L7mqKY37a0arsLOeyYCWsw **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 [19] Saya juga berpendapat item ini perlulah dikira secara global dengan item (ii) iaitu complex left hip dislocation kerana berlaku pada bahagian anggota yang sama. Ini selaras dengan prinsip yang diputuskan dalam kes Seah Yit Chen v Singapore Bus Service (1978) Ltd & Ors [1990] 3 MLJ 144: “Where the injuries sustained are to different parts of the body and affect different parts of the body and affect different functions, as in the instant case where the plaintiff sustained injuries to the knee and to the spine, it would be appropriate to make a separate award for each head of damage.” [20] Berdasarkan kepada penemuan-penemuan saya tadi dan panduan dalam Compendium serta kes undang-undang, saya memutuskan award yang diberikan oleh L/HMS (RM40,000 + RM25,000) adalah rendah, tidak adil dan tidak menunjukan kesengsaraan yang di alami Perayu. Sehubungan itu saya mengenepikan gantirugi L/HMS dan menggantikan dengan award baharu sebanyak RM80,000. [21] Rayuan bagi item (i) dan (ii) dibenarkan dan keputusan L/HMS diketepikan. (iii) complex left hip dislocation [22] Seperti ulasan dan keputusan saya dalam item (i). (iv) abrasions wound left knee and left palm of hand [23] Peguam Perayu menghujahkan gantirugi sebanyak RM8,000, manakala peguam Responden pula RM5,000 dan dikira bersama dengan scars. L/HMS memutuskan wajar di kira secara berasingan dan memberikan award sebanyak RM3,000. [24] Saya bersetuju dengan keputusan L/HMS untuk award dikira secara berasingan antara abrasions (calar) dan scars (parut) kerana ia adalah dua bentuk kesan kecederaan yang berbeza. [25] Menimbangkan panduan dalam Compendium, kes undang-undang, umur Perayu, status Perayu yang telah berkahwin, saiz calar, perasaan Perayu apabila pertemuan dengan rakan-rakan sekerja serta orang awam dan tempat di mana calar ini berada, saya bersetuju dengan amaun award RM3,000 yang diberikan oleh L/HMS yang mana saya berpendapat ianya adalah adil, munasabah tidak rendah dan tidak melampau (excessive). S/N L7mqKY37a0arsLOeyYCWsw **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 [26] Oleh itu rayuan bagi item ini ditolak dan keputusan L/HMS dikekalkan. (v) left acetabulum arthritis [27] Peguam Perayu menghujahkan gantirugi sebanyak RM10,000 kerana laporan pakar Perayu mengesahkan Perayu mengalami left acetabulum arthritis (muka surat 126 Rekod Rayuan dan eksibit P5). Peguam Responden pula tidak menghujahkan apa-apa gantirugi kerana laporan pakar Responden telah memutuskan: “Based on the radiograph taken, there is no evidence of osteoarthritis of left acetabulum.” (Laporan Pakar Ortopedik dari Universiti Sains Malaysia Specialist Centre bertarikh 24.12.2021 di muka surat 144 – 148 Ikatan Dokumen Responden – eksibit D7). [28] L/HMS tidak membenarkan gantirugi bagi item ini apabila memutuskan pemeriksaan pakar Responden lebih tepat kerana menggunakan kaedah radiograph dan bukannya secara klinikal. Oleh yang demikian L/HMS menolak tuntutan bagi item ini. [29] Saya merujuk kepada laporan pakar Responden yang menyatakan berdasarkan pada ujian radiograph, tiada bukti yang menunjukan ujudnya the criteria for diagnosis of osteoarthritis that is reduced joint space cannot be used. [30] Selanjutnya saya merujuk kepada keterangan pakar Perayu semasa perbicaraan (SP3), yang mengatakan (seperti yang ringkaskan): “Bahawa kebiasaannya pesakit akan mengalami kesakitan yang disebabkan oleh soft tissue fibrosis, dan juga arthritis. Ujian x-ray juga kebanyakannya tidak menunjukan tanda- tanda osteoarthritis. Tetapi secara klinikalnya, pesakit akan mengadu kesakitan, terutamanya selepas melakukan aktiviti ataupun pergerakan yang berlebihan. Ini yang dinamakan clinical osteoarthritis. Dan itulah yang menyebabkan saya mencadangkan di masa hadapan sekiranya sakit ini bertambah ataupun tidak berkurang, ia akan menuju ke arah yang akan mengalami arthritis.” [31] Ini bermaksud, pada pendapat saya hanya berkemungkinan sahaja arthritis akan berlaku di masa hadapan. Sehubungan itu saya menolak rayuan bagi item ini dan mengekalkan keputsan L/HMS. S/N L7mqKY37a0arsLOeyYCWsw **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 GANTIRUGI KHAS (atas dasar 100% liabiliti) (i) kos pembedahan masa hadapan untuk total hip replacement [32] Peguam Perayu menghujahkan gantirugi sebanyak RM20,000, manakala peguam Responden pula menghujahkan 1/3 dari kos tersebut. L/HMS memutuskan adalah wajar pembedahan berkenaan dilakukan di hospital kerajaan berbanding dengan hospital swasta. L/HMS memberikan gantirugi bagi item ini sebanyak RM6,666. [33] Saya berpendapat terdapat banyak kes undang-undang yang memutuskan pihak yang menuntut berhak mendapat rawatan yang terbaik bagi memulihkan kecederaan atau kesakitannya sama ada di hospital kerajaan atau hospital swasta. Prinsip ini telah diputuskan dalam kes Suriyati bte Takril v Mohan a/l Govindasamy & Anor [2001] 2 MLJ 275: “Two authorities must be highlighted as they may serve as good guidelines. The first would be Yaakub Foong bin Abdullah @ Fonng Chin Siew v Lai Mun Keong @ Lai Mun & Anor [1986] 1 CLJ 255, where Shankar J (as he then was) on the issue of treatment in a private hospital had to say at page 358 of the report: In my opinion any ordinary citizen of this country has a right to choose medical treatment for his injuries and illness from whoever and from wherever … Applying the aforesaid principle of the freedom of choice, an injured victim in a road accident should also be granted the same right to choose where and by whom he wishes to be treated.” [34] Sehubungan itu berdasarkan kepada kes undang-undang, kadar inflasi, kejatuhan nilai Ringgit, kos perubatan yang semakin meningkat saban hari, saya membenarkan tuntutan Perayu bagi item ini dan memberikan award sebanyak RM20,000. Rayuan bagi item ini dibenarkan dan keputusan L/HMS diketepikan. (ii) kos sebut harga kasut khas dan (iii)kos pembelian orthopaedic footware with shoe raise (insole) [35] Perayu menghujahkan pakarnya telah mencadangkan dia untuk memakai kasut khas bagi lengthening 2 cm pada left lower limb S/N L7mqKY37a0arsLOeyYCWsw **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 yang menyebabkan limping gait. Sebut harga Perayu bagi kasut khas orthopaedic footware with shoe raise (insole) adalah dari Teh Lin Prosthetic & Orthopeadic Co. Sdn Bhd (P9) sejumlah RM49,000 iaitu pada kadar RM1,400 seunit selama 35 tahun. Peguam Responden pula menghujahkan tuntutan ini ditolak kerana tidak berlaku kepanjangan left lower limb. L/HMS telah menolak tuntutan bagi item ini atas alasan laporan pakar Responden yang menjalankan kaedah scanogram tidak mendapati keujudan kepanjangan left lower limb. [36] Saya telah membenarkan dan mengesahkan bahawa kaedah klinikal adalah lebih berkesan seperti dalam ulasan saya dalam item (i) dan (ii) untuk gantirugi am i.e telah ujudnya kepanjangan left lower limb. Berdasarkan kepada laporan pakar Perayu dan ketiadaan laporan rebuttal dari Responden, saya membenarkan tuntutan Perayu bagi item ini iaitu sebanyak RM49,000 dan item kos sebut harga sebanyak RM200 (P20). Keputusan L/HMS diketepikan. Keputusan [37] Berdasarkan kepada penemuan-penemuan tersebut dan atas imbangan kebarangkalian, sebahagian rayuan Perayu dibenarkan dan sebahagian lagi ditolak. [38] Pihak Responden diperintahkan membayar kos kepada Perayu sebanyak RM5,000 dan tertakluk pada 4% alokatur. [39] Faedah 2.5% setahun dari tarikh pemfailan writ saman hingga keputusan rayuan dan 5% setahun dari tarikh keputusan rayuan hingga penyelesaian penuh. Bertarikh: 18 November 2023. (ROSLAN BIN ABU BAKAR) Hakim Mahkamah Tinggi Kota Bharu. S/N L7mqKY37a0arsLOeyYCWsw **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 PIHAK-PIHAK: Bagi pihak Plaintif: Tetuan Azhar Fazuny, No. F3, Lot 478, Seksyen 14, Jalan Bayam, 15200 Kota Bharu, Kelantan. Bagi pihak Defendan: Tetuan Othman Hashim, 1st Floor, Pt 371, Rumah Kedai Lembah Sireh, 15050 Kota Bharu, Kelantan. S/N L7mqKY37a0arsLOeyYCWsw **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

KB-12B-10-06/2022

PERAYU ANNAPOORNI A/P VASIAPPAN (menuntut untuk dirinya sendiri dan sebagai ibu yang sah dan tanggungan kepada simati, SHARMILAN A/L DHASARAJOO) RESPONDEN SITI ROHAYU BINTI JAAFAR

Appeals and cross appeals which arose out of 2 civil claims brought by a motorcyclist (Suit No: KF-A53KJ-137-09/2018) and his pillion rider Suit No: KF-A53KJ-198-12/2018. Appeals involved liability and quantum whereas the cross appeal was only on quantum.

21/11/2023

YA Puan Narkunavathy Sundareson

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=2401084f-f203-4fbd-87ab-cf84421c931a&Inline=true

21/11/2023 09:06:28 KB-12B-10-06/2022 Kand. 27 S/N TwgBJAPyvUHq8EQhyTGg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N TwgBJAPyvUHq8EQhyTGg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N TwgBJAPyvUHq8EQhyTGg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N TwgBJAPyvUHq8EQhyTGg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N TwgBJAPyvUHq8EQhyTGg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N TwgBJAPyvUHq8EQhyTGg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N TwgBJAPyvUHq8EQhyTGg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N TwgBJAPyvUHq8EQhyTGg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N TwgBJAPyvUHq8EQhyTGg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N TwgBJAPyvUHq8EQhyTGg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N TwgBJAPyvUHq8EQhyTGg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N TwgBJAPyvUHq8EQhyTGg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N TwgBJAPyvUHq8EQhyTGg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N TwgBJAPyvUHq8EQhyTGg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N TwgBJAPyvUHq8EQhyTGg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N TwgBJAPyvUHq8EQhyTGg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N TwgBJAPyvUHq8EQhyTGg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N TwgBJAPyvUHq8EQhyTGg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N TwgBJAPyvUHq8EQhyTGg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N TwgBJAPyvUHq8EQhyTGg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N TwgBJAPyvUHq8EQhyTGg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N TwgBJAPyvUHq8EQhyTGg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N TwgBJAPyvUHq8EQhyTGg **Note : Serial number will be used to verify the originality of this document via eFILING portal KB-125-10-06/2022 Kand. 27 21/11/2023 03:: :25 mum mmxmm vmssn muvn an sumsm wzum mum ussam KEDAH DARLIL mm, u:AuvsvA RAVUAN SIVIL N0.KE-IZE-341672012 ANYARA sm Rowwu sum JAAFAR . Psruvu mu Aumvuonm NP vasuumm {Muuunlul mumk sunny: .1.» sebum am y...,; m. an um-.m.. kevndn .a mu. smmxuu AIL nunsmwoo; . xzspcunzu mm mum MANKAMAH runes: mun m suns» pzum mum macaw KEDAN mum mm. muvsm uumsuvum x 2 oslznzz AMTARA s:naomuammA.m ,.p:mu mu 1. JAGADISAN A/L suasummm 4..m...,; yxnq um hvlkaupaynn melalul susuummm M. AMAVASY suman wakil mmumy-J N YwgaJAPyvwuaEnnyn3w Nate sum runny WW ... M » «My n.. nH§\mH|V MW; mm. Vfl muws NM! 2 cHANnRAu AIL GURAPPAH 3. mmuaoonm up vuuuama [sablmwakil um um. nmau. swuwnum m nmsmuoo) ...REsPaMnEN-RESPCINDEM mum MANKAMAN runes: umuu ul swan psum nAuM uzssm KEDAH mam. mm, muvsu ruvum SIVIL Mo. KB-12E-1n-usunzz mun Aumuzuuaun up vaswnw {Memmlul Immk dmnya can scan dan unnmulslan kensdn 3 ml . smmnuu AIL umswuoo; . vssuvu u ynng uh mu sm ROHAVU awn JAAFAR xsspounsu nAuuI mmnmm mam MALAYA nu suuau Pfinm mum uscsm xsnm mum AMAN. umuvsu mwum s\v\L Ma. K3423-11415/2022 ANTARA 1. cnmomu AIL eumrnu 2. mmooumxu A/L nHAsARAJoo N YwgaJAPyvwuaEnnyn3w Nate sum runny WW ... M » «My n.. nH§\mH|V MW; mm. Vfl muws NM! bagawmana Iealdmyn kemihngln lm Izaak memoaremar Mankamah unluk membum knnklusw kg 21:’: habrhln yang seam pelns am new mambeull klvada sualu pink’ 31. There were no rsasansgwen cnrme award otdamageslnr both Annapooml and Jagidlsan aaye ma: she was gmded by prmc|p\es of raw on quantum The arguments 32 The euunsers submwsslans can be summanzed as follows sm Rnhayu mok Issue mm are appn nmem ol nammy on me ground: me: me Veamed SCJ lailed In cuns\derIhat— (I) snarmnan was ndlng me momrcyere undevlhe mflnencs :1 alcohol. on sm was an Independsnlwwness wne madea puhce reparl wnlhm 3 hams erme aeemem. and my mam Annapnzmu and Jagamsarr had m mscharge me lumen of pmvmg men case 33 On me Issue or quantum var Annapuarni, sm Rohayu argued that me award 0! RM 100DD.00far bereavement was wrung She alsa pointed am that me RM 100,00 per mcnlh for the dependency daim was unsuppnrled by any evidence am rwawmwaammea -we sum IHIHDIV Mu e. um law may he arm-y MW; anuumnl y. muye perm 35 37 on ma issue or quanlurn lor Jagadlszny sili Ruhayu submllled ml the award for damages was manileslly excessive and that «lie learned SCJ lailed lo consider llie overlap in lrie injuries Annapoornr, Jagadlsan, cliandran and Tlramoolliaran all oonlended llral ins leamad SCJ did nol make lindings aliacl on crucial issues such as me orooaole ooinl cf imoael and wlrose negligence caused me aoordenl rliay also argued llial lne learned sc.l was wrung lo allrioule negligence on sliarnrilan merely because oilne aloonol oonlenl in nis blood level slre did nol allude lo any specific aol on ma par! wnicn eonsliluled negligence Jagadlsan submliled Illatlhe award oi damages lor lread inlury was low He also look issue will’! ins learned SCJ‘s lailure lo award damages «or a deep laceralion wound on ins rignl leg and allow his claim tor llie hearing aid. Principloe governing app I: 35. ll is lrile lnal lhia courl, as an apoellale courl. ougril nut lo iniervene with me lrial coulfs conclusion on primary iaols unless ii is sausned llie lnal ludge was plainly wrong Based on llris ‘lzlainly wrong leslx an appellate coun is enlilled lo examine n oievidenee by llie lllal coun and may sel aside any decision oi llie lnal coun willi no or insuiuoienl ilre praoess oi evalu ludlclal appreciation olllie evidence ru lwgBlAPyuuHqaEnliyYGv war. s.ii.i ruuvihal will s. um is my me nllglnlllly «in, nutrient VI :FlLING mi 39. In Gan Vnok Chm (P A Anorv Lgg lug gum @ Lee Teck seng a. Dr: 2005 2 MLJ 1, Steve shun CJSS new a|10- ‘M cur view, the Calm «:1 want VII ulmg mm cam nan many home In mind (ht u:n|r.I\ hlluvu L11 appenata Intalvarmcnt be to delemune whether ovm7lll1ama\caurl had imved at Rs decusbn ar findmn umvaclly an ma um wne veletvanl xaw and/av lhe aaumsnaa evwdenue In in dumg, lhe Conn alADDMlwnsnenecIIyemn\edm axamn. Ins pvweisolevaluahon L7! me evxdenue by me «nan cuurl Chzlvy‘ the pmais'\n:ul9in\en|Jud|da1 app-ac-an-an cl mound mavely mama k: such a prom ma V! man VI Ina Calm M Aapears reslatemenl um . judgl wnu wz: requwe-1 |o adluduzale upbn a mum» musl arrive 2| his aacmn an an Issue of mm by asgessi , wmghmg ana, my goud veasons, either ampnng Dr mg-mun ma wnuua av any pan an the ewdenne mam belore mm Tm Caurlv1App¢a|VuIInavvm|eval:dIhe pnncwe aentulla appellnle -nmvenuan We hit a dedslm unwed xl by a ma: cmm mnmn wanna! appveclaum at the evhtence mm be set a :1. an appaax rm: 1: mnsblenl wilh nne uuhhshed n\:\n\y wmnj 1551' (sea UEM Gmug and v §§nI§x§ gggyatea Engvneevs Pte Ltd 5. Anor 2010 MLJU 2225, Ng Han Km 5. Angr y wgndy Tan Lee Pgng §gmIm§ rg nx my the estate of Tan Ewe Kwang deceased) & Ors 202m 12 MLJ 57 a181, Ahmad zulienm hm Anuav v. Mohd sham bin Abdul Rahman 2022 4 ML! 592 at M) sm rwawmw-aamnyrea "Mme sum rumhnv Mu n. um n mm m. mtgwnnuly WM; nnaumnl «. mtns Wm 40 ‘nus Coun must be mindfln that me man Judge woum have had me nenem and advanlage nlseelng and hearmg lhe wimesses and had me oppununily to assess mememeanom espedally during cross exammalian. The mel judge Is emmstea wuh me cask ofervaluaunq and apprzxsmg men ewdenoe as a whole 41 ms Cnurl Is nmy called upon to examine me trial oourrs probes: or evamluon av evmenee and appncauen av law m amvmg at me decvswcn 42 The mam issues (or nus Coun's de1ermmaUon m mese appea\s are — (u) on me Issue (.11 nammy, whe|her me SCJ hid sumcwem ‘ JIAGIEIIV apprecxalmn e1 me emaence adduced nevme my when she concluded |haI sm Rohayu and snemman were equally Mame (or the accident, and (H) on me wssue cl quantum, whether me sm was gmded by was gmded by me vewsea campendlum [or yersonax Injury 1 awards and me trend m awardmg damages. m rweammw-assumes ms sum IHIHDIV Mu e. um law may he mV§\nIH|Y vvws anuumnl m muus wvm ‘ Ar-aims and findings ueniiiiy 43 in he: grounds oi iudgrnenn me SCJ summarized me einaenee ei SP1, SD1, SD2 ana SD3 sne painted |o me aisciepeneiee in me evidence ai SP1 and sin and 503 ennui wneie me pnin| ei impact was 44 sne came to a nnaing mat sPi‘e eviaenee wee premised on me Illenl evidence at me scene 0! III: accident which led mm In cundude that me acciaeni happened in snanniians iane 45. The learned SCJ iieid inai SD1‘s evidence inai Sharmilari was rlding me meieicyeie under me iniiuenee at aicanoi ienu cieaenee io sin Renews narralive (ha! snanniian: negligenoe eeninimied In me aeenieni A5 A pemsai oi ine rioles oi evidence in pamcuiai man of sin Rnhayu and sin shaws many mnlradicuons in «new evidence Firsfly, there are inaienei enuesione in min men pence iepons (i) sin Rohayu did nai niennon inei ene saw snamnian weaving in and am aflraffic (|emuyung—hayarig), (H) neither sin Ruhayu nor sm sieiea me: «hey sew |he niaioicycie neing niovea iiem iie original position, IN iwg5iAPyuuHeaEnnyYGv Wale Semi lhlhhfl wiii e. wed in my me meme we mm... VI HUNG wmi 47 4s 49 (n) SD3 am not say max ne nad observed snarnman ndlng the motorcycle «am a petrol slalmn and hid lrallsd mm for 1a mimfles pviur lo the awdent; and av) sna dm nol mennnn that he nad seen snannuan riding me mouavcycle reck\ess\y by ndmg me mukzrcyde imolhe path 0! a my name swerving back into ms lane These nmlssxons can Inlo fluesuon men oral evidence during the man adm sm Rnhayu and sun mamlalned «nan the pom|a1 umpacc was me nuddla onne road at x and P yespecnvexy on Exhxhn P1, ye: may wwd not reconcfle «nan narralwe wnn me poemon o1 F\ck»up afler nne acumen: The learned SCJ dud nut oonswdev mess almssmns when ene evamaxea men evvdenoe. sne dud nn| fest sni Ruhayu no! sass vemun of haw me accidem happened wnn the s|len| evxdence al «he suene ov me accmenc The sflenf ewaenae Is me nmu reliable guide rm haw me accident happened The skelch p\an. me brake and on marks an the mad, me posmon Mlhe Pvck—up pustaomdenc and me exxenme damage to me vehrdes render sun Ronayxfs vemon mi me accident nnpmnanle m wcgmnpyuwaaznnytev Wale sum rumba! wm ». um In may he .nnnn-y mm a...n... VI erxuus bum! 50. From me angle ol lne bvake marks and pcslllon of (he Plck-up on me griss verge‘ ll ls clearlnel sm Ronayu nrusl have already enlered lnlo snannrlans lane euen before the poinl ol lrnpacl. This ls wny mere were no brake marks an ner slde ul me road 51 All one evrdenoe palms la lne aocrdenr naving laken place in snarrnllans lane. 52. me learned SCJ appomcnsd 5u% llamlily lo snarnulan based an llre fact |ha| alcanol level exceeded lne legal llrnll Thls nnulng ls llawed and wllneul hasls beanie lnere ls no evidence ol lne causal llnk belween ms alcehol level and lne accldenl 53 on the whole, lms caun llnda lhal lhe learned SCJ‘s nndrng is lmsuppmled by me evldence adduced In me lnal. Tm; lnsumclenl appreaallen ol Ihe evldence rnenls appellale lnlewenilorl 5-: ln conlnrg lo lnls concluslon, lnls court was rnlndlul annal In M Hon Kul laupra) wnerein lne Federal Cour! explalned aH17 — 'n1a'plaIIlly wlollg‘ lesl ar eepuused VI declslorls ol IN: awn amuld be Ielalned as a llennle mild: Vlx appellalz caurls A: Inna um: um lungs: mmclusian can be supnmled an . vlllcmll bl!!! rn mam 1:! ln. malulal eviderlue. lne lm that me lnpellala cnnm reels llka ll might have deemed urllaranlly ls mlmnl In ulhnr welds, a filldlng or leer lnal would nu be vapugnzm In cnmmun sans: augnl nol Io be dlslulbed The rrlal l-me rnoula be aeeuraeu a rnawln at apvleculmn when nag llanlmem or ln. evldelwe Isexamlrled by me Avnellnle mullx' sm Ywl:BlAPyvLM:uEuhyYGv -ml. Sum rumhnl wlll e. um re may he .nnn.ny enn. anuumnl «. mus mn 55. 55 57 55. 59 The srlenl evmenae shown by the skekm plan clearly lrldlcates lhal lne zccldent happened enzlrely ln snarmrlens lane ln perllculen lne brake marks on sharrnrlan's lane cumradlc|s Sm Rohavws evldenoe lhal she applied her srrlergency brakes belere swervlng llghl lo avoid snannllar. The plzslllurls pnhe Pick—up pus1—acclderlI shaw: lnal the point el lrnpen cuuld nol have been at me mlddle el lhe load marked x by slh Rohayu or P by so: Even illhis Cowl acoenled slll Ruhayu and S03: ellldence lhal sharnrllan enlered her lane whllsl oveniklng e car, he was back ln hrs lene way nelore lne accldem happened slll Rohayu are not apply her emergency brakes wmlsl ln ner lane and men krmcked rnlo sharrnllan because lhere are no brake marks on me left lane ll ls probable lhal srh Rpnayu |L7s| cnnlml lhe Pick-up when she swerved rlgnl causing her re enler sharrnllan's lane and knocking NW! 1 llndlng is supplmed by me brake marks aha lhe glass lragrnenla as marked ln P7 For these reasons, |hls calm finds sm Rohayu 30% lleble tor the eccidenl r~ Ywl:BlAPyvLM:uEnnyYGw war. eeln ...r..r wlll e. um he may he nllglnlllly we anuuvlenl VI HUNG mp ouenmn. 61 In Laksmanz Realy Sdn End 2905 1 ML} 675, the court (by referring to me case of Tan Kuan van v sunindnmani [1935] 1 cu 429). held - ‘Thu mInc\D\e lhll mm gmd: (N: cmm n dalnrmmlng wmnu n mama mtellvre mm the quinlum mdamage; n c-yscau daav wnal ws ilw 115:! as mal -nvun depends on ma clvcumflznces aleacn case‘ n pamcnlavme amoum al Ihe Award In - p:rUcu\arcue|heIe1ore me lot we swell mm In cenmervmeme. .n 0:: mm Mme cvcumsl-nae! no um use have .a an vvvcnwus ed-mas do In: amdvm M Ina damage m Ina| ermer mm was an ormstmn on the pan ov me Judge to wnildev tom: uenmnu mlherms or ne nad admmed Var pvrueses olassessmenl same melevanl cansudeuums v we mull Vs unsoed ar onrwmced am (he Judge has med urmn wmng pvmI:\p\es er we». men n .. puhfiad m Imaulng‘ mam m u its only to lar-Iursa lhaflndlng m lhe ma: Judge- 52 Gumed by «ms dicta, coun cansiflered me award av damages which were an Issue .n lhese appeals 63 Annapuorni mncsded mat me award at RM 10,000 as for bereavement ehduld be set aside as snarmnan was more man 15 years old and unmamed at me Mme 0! me accident 54 The evidence adduced by Annapoavm was that Sharmllin earned RM zouo on penndnm and gave hev RM mm 00 The sc.I fixed me dependency clsnm at RM 700.00 per rnonm wmch 10 ms cmm we a reaeoname sum and oonsis1enI wrlh wnac Tnameomaran her other aon gave ner monthly am YwwBAAPyvLMt:BEnhyYGv -we. sum runhnv Mu e. um law may he ..en.u-v mm dnannnnl «. muus mm 65 57 as 59 For Jasadisan, he submmefl max an awavd of RM 300000 on — RM 350,000 00 ws me current award lur seveve head mjury mung the cam o1 Aha Mullava Enlsrgnse A anor v Thavamany gamayayau zgzm 1 LN§ 1713, Kassxm b lbrah 3. inc! v Syed Khodn n Syed Abdul Am 2009 2 FIR 25 and K arasan a/IT Sukumaranv KhorLye Chaon 2011 2P\R e. sm Rohayu argued man the award 01 RM 150000 00 was reasonable Fzlzullah v Nuvm Fa span Q My gasneed 1. anar 20:2 1 PR 15) am asked lar a 20% redudmn an me gmunfls max Jagadvsan had comnbmea to m prssem scam used me Plamwrs by not mnawmg mrnugh wim his ttealmenl Jaga n clawed Ihe casts lar hearing aids relymg on the evwdanee M SP2 SKI Rohayu questioned the need (or the hearing an as wt was um vecommended by me ENT at Penang Hnspwal Jagamaan arsa maimed my deep Vzoeralmn wound 01 me ngm Veg. On me wssue of quantum, me Maglstrale was gunned by me pnncIp\es of waw anunmaneu m the iolluwing cases — (i) ong Ah Long v Dr s Unaerwaoa 1953 CLJ Reg) son‘ and m YwwB1APyvu>«:uEnnyrGv Wale sum lhlhhfl Mu ». um In new m. mV§\nIH|Y Wm nnumanl VI muus wvm (aunng ynng uh aan waldl am mu. gm.-ax, smnuuuu AIL omsmuoo) . .nssuvu.p:suvu mm sm nuwwu amn JAAFAR . .REsPounEN GROUNDS or JUDGEMEN1 Introduction 1 Armapocrm all Vasxappan onmmenced a c I sum agalnsl sun Ruhayu binu Jaalav (sin Rahayu) m me Kulnm Sessmns Cami me sun No KFA53KJ—1370$/2015 (sun 137) cor a mad accidem which resumed "I me death at her sun Shavmilan a/1 Dhasarama (fiharmllanj 2 At |he matenal Ivme‘ Shavmilan was ndmg molorcycle bearing vagvstriuon no: PDH 5147 and sm Ruhayu was dnvlng a pIcK- up bearmg vegwsuallon no: wxo 5742 (PICK-up) 3 Jagadlsan all Suhramamam (Jagadusan) cummenced a civil suit agams1 sm Ruhzyu in the same court was Su1lNo KF-A53KJ— 195-1Zm01BlSuII19&Horlhe same acmdem Jagamsan was the plllun nder on me motorcycle m Ywgmnryuwqaznnyrev W. sum lhlhhfl MU .. wed In mm m. mwgmuly MW; anumgnl VI muus wvm (II) Ramenandran all Mayandy v Abdul Rahman bln Amhnk 199g 1 LNS we 70 Cnrlsldsrlng lne learned SCJ's award cl damages as a whole, lhls coun llnds lnallne award ol RM 200,000 on furseveve head lnluly In be are reasonable and wlllwl lne range at damages avarded lonne same lnlury H1 alner cases 71 SP2‘: evidence lnal Jagidlun needs heillrlg alas I! conllary lo the llndlngs by me Perlang Hdspllal Vlhlch slates lnal ms audldnlelry l3— lan nnld eeneonneurel hearlng less and ngm nnd lo modenle serlsorlneuval neanng lass. Tnls coun agrees lnal W lne absence Ma reoommendallan Ihal he be nlled var hearlng and, me learned SCJ was rignl lo velecl this clalm 72 ms coun nnds lnal Jagadlsarfs conlplalnl lnal ne was nol awarded damages lor me laoelaliml ailhe vlghtfonlwilhoul meri| as me learned SCJ awarded RM 1o,ouo.oo lor lne deglavlng wound over rignl lam Dcclllan 73. me lollewlng rs lnls cdurrs declelen — ll) Aggal B - sm Rohaylfs appeal on llablllly ls dlennseed and nev appeal on quantum is allowed by consent; 2: m rwaalnmwaazemed ma. Sum ruvlhnl wlll e. um a may he mlglrullly aw. dnuuvlnnl «. mans mm (up the learned SC.J's award at RM 10,000 0Dlm bereavemenl is set aside‘ (um Apgsal 9 - sm Ronayws appeat on Habmty and quantum Is dismissed and Jagauisans cmss appeal on quannnn ws dismissed; my me learned 5C.|‘5 decwswcn on quanxwn ws amrmed: M AQgea\s in 3. 11 — Annupouml, Chandran and ThamLmIhavan's appeaxs an I are anoweu and me learned sow: decvswon on uammy \s set asme, my 30% hahvlmy hr the accident Is now appcmoned lo sin Rohayu, 1vu)cosIs fcrAppsa\s a and 10 are sel ac RM 15‘oooan m Annannorm suhiect la allucilun 1vuI)cos(s var Appeal H \s set at RM 10,u0n on each |:) Chandvan and Thamnlharan subjed Io auocaxun and (IX) no order lov casts ws awurded namppea: 9. Dated 23 Jury 2:123 Narkunaval y Sunda sun Jud\cIz\ Commissmnev High own Ma\aya al Sungm Pelam m rwuwmwuamnyrew Wale sum lhlhhfl Mu be um In new m. mV§\nIHIY mm 3..."... VI muus wvm For me Appellzm Kamalamm arp Ravycnandran Messrs P R Manecksha .5 Associates sme 9/05‘ 9 Floor, Menara zuncn, 170, Jalan ArgyH, mason Geowetawn, Pulau Pmarlg Far tho Rnpomionl Na m 3/‘ Rapndran Messrs s Parum 5. G. Tmla Advocates a. Sulcltms 2"” Floor, 325. Ja\an Tudak 4, Bandar Sebevang Jaya‘ moo Perm Pulau Pmang m rwmmuwuammew Wale sum lhlhhfl wm be uud In mm m. mwgmuly MW; anumgnl VI muus wvm sm Rohayu oonnnenoed third party pmoeedings in Suil I98 aga.nst— up cnandran an rsurappan, owner dune malorcycle‘ and (n) Annapaoml and later suhsflmled by Thamamharan a/V Dhasamao (Thamodmaran). Sharmllarfs bralher ARE! I lull lnal. he learned Sessxens Cowl Judge |SC.J) admurned me cases lur decision The cases weve caHed up «or decrsxon on 2 6.2022. ForSuI| 131, me learned sc.I laund s i Rnhzyu and Shamulan both Mable var me accident and appomoned nammy at 50% eacn The learned SCJ awavded damages including — 0; RM moon on lar bereavement; and nu) RM 134400 no lar dependency an RM 7ou on x 12 IIIDMIIS x we years on me same finding of Iiabi y, we learned SCJ awarded Jagadlsan, damages mcmdmg RM 2oo,oon no lnr severe need Imuly wnh dwsabllwties wn 5uil198 She and nut allaw Jagadwsarfls c\aIm fur hsanng am or damages lar rIgh| hm! Iacerzlwun wound m YWwBAAPyvLMt:BEnhyYGv wn. sum IHIHDIV M“ e. um he may he Mn.“-y mm anuumnl m mm Mn 9 ln sull 131, so Ruhayu appealed agalnslllle declsiarl an lialzlllly and rluamum lAl=neal sl whereas Anllapooml appealed ml llahlllly alane (Appeal 10) lo In sui|19Bl Rohayu apnealed agalrlsllhe declslon an llablllly and quanlum (Appeal 9) Jagadlsan upssappealea on me leamen SC.l‘s lieclslorl an we apparllonmenl nl |labi|l|y and quanlumlmlhe severe head lnjury. me lacerallon wound on ma rlghl ml and me hsarlng an ll. In sull19E‘ Chzndran and Thamanlhalan appealed agamsl me fleclslorl on me appamonmenl cl Vlahlllty (Appeal 11) 12 AH lour appeals were heardlogethercrl 4 1 mm and adjourned lnr aeclslon After carelul conslderallurl 01 me cauee papers and ma wmlsn and oral Submlsslons el counsel, |hls COIIVI decided lo — ll) dlsmlss Aplzeal s an Hablllly and allow lhe appeal an quanlum (or bereavement by consent (up dlsmlss Appeal 9 and the cross appeal: and (liil allow Appeals 10 and 11 on Ilablllty 13 The lollpwmg are me grounds lor the ueclalun m Ywl:BlAPyvLM:aEnhyYGv mu Salli! ruvlhzl M“ e. um In may he nllglnlllly Wm a.m... VI was ml Proceldlngl In me seniana caun Liability 14. Sum 137 and 195 were heard together On me rssue al liability, ; me witnesses were — (i) SP1 - me invesuganng olficsn Insp G/19311 Muhd vusm hm Payarm‘ (H) sm e the cnemrsn, Nurul Nama mnn Ahmad‘ (m) 552 — sm Rahayu. and (N) sna - mdepem1en|wItness. Nannudarn hm Abu Hassan 15 me acmdem tank wane on 25 s 2017 a! 945 pm along Jalan Kuwn-Manang near me junction «.2 the road Veadlng «:2 saw Prmn sm Ruhayu and Sharmflan came «om apposde mrecnons we sm gave evidence that when ne wen| In me scene abmn an minu|es allenhe accmenr, me vshldes were sou m rneir urigmal pasmons He drew me sketch man (Exhibit F7 & WK) and directed pharograpna of me scene and me damaged vehicles neAaken(ExnimPsA — L)| m wcgarnpyuwqaznnytev Wale sum lhlhhfl M“ e. um In may he mtgwnnuly Wm anuunenl VI erxuus bum! O .4 ____<_ 2% , .fi‘..__ sm rwmumumasanyraa "Nab: s.u.‘ ....... wm ». um In vufly me .m.u., mm dawn-nl «. -FWIING Wm 15. 19 20 22. In P7, SP1 made none at the vehxdes‘ posmun, |he glass lragments (marked F). me brake marks (marked E1 — E2) and ShzrmHan‘s may (marked D) He a\sn noxed the damages (0 bum vemcles Based on me poemons aims vehumes, me glass vragmenus and lhe brake mavls‘ sm Iouna me: the accident took place In Sharmularfs Vane. sm luund Sih Rohayu and SD35 ev-uence \nz:ons\s(en| with me Inmal findings at me scene at me accident In crass exammalmn. he gave evidence that enter recewmg me toxwcology report, ne ooncmded that me accrdem mus1 have (aken place at me mmuue 01 (he mm is euegeu by Sun Ronayu and Sm 501 gave ewdenc: mat SharmHan’s Mood alcahm Vevel was 144 mflhgrams per 100 mummee (Exnmn D25) The penmfled level was so ml glams per 10 nnuumee sin Rohayu gave evidence meme accident happened because Sharmilan rode mlo ner lane w 1 avenaking a can She swerved to me ngm to even: him But Knucksd lnlu mm as he swervsd back Inla his Vane She braked hard and stopped on me grass verge on me nghk snamnlan lay pmne on her hmken wmdscreen and was taken down by some pissershy and wax: cm on me gvaee verge m rweemmweammee Wale sum lhlhhfl wm ». um In may he nan.“-y MW: a.m... VI erwuws bum! 23 24. 25 tn cross exarnrhahah. she sald braked when she sewsherrrrrtan was weaurrrg rrno her tane she agreed thanhere were no brake marks on her Isne she was enrphahc that the rnmarcycte has been muvsd lmm Its nrigmal posrtion sher rrnpsct. she agreed wtth counsel that her verstmt aflhe aoctdenl was rnsrrnsrsrent wi|h the postman ol the Pick-up and the brake mark: SD3 VHS Hdlng ms motorcycle behind Shannflan and saw the acrieern happen Hts version of the acctdenr wns wnstslenl WM Sm Rohaytr: evidence. He loo matmamed that the accidenuock Diane VII the middle otthe road. He was rrgareuety cross examined and became unsure of ms responses. He agreed he are her see the rrrorarcycte being mwed. sm Rohiyu marked the point o1 rrnpam as x an P7 as she was sure the accident tank place at the ruhction whereas sua marked «he palm or Impact P ouamurn 2s on the tssue cf quantum, the wtlnesses were — tr) SP2 — the audtologtst who examtned Jsgsarssn, Tan Eee Tmg; (I1) spa — sharrnrtans employee‘ Ravt all Rarrran, and t sru — Annapoaml ru YwwBtAPyvLM:uEnhyYGw we sum ...h..r wm e. um law may he mtgtrmtly enhn dnuuvtnhl m muus bum! 27 2a 29 In SP2 lesmted that Jagifltian auwered sensdrtneurat hearrng toes and gave aquotannn fora nearrng ard stredrd nm prepare any report and could not explatn why she recommended Ottwrt Multtple Dynamo SP 10cosImg RM 10,500 no she agreed that Jagadtsart could use a hearing ard cosltrtg RM 2500 no. spa gave eutdence that sharrnrtan worked tor mm as a tarry attendant, eamrng RM 2000 no per month (Exhtbil P23 (A)-(Cl). He drd na| make any deductrorrs Inr EPF or socso Annapuorrli |esm\ed that she was Shavmtlarfs dependanl and he gave her RM 1200 00 each month. Trtamtootharan her nlher sort who warked as a low duvet also supported her by giving her RM 700 G0 a month. Findings by me teamed SCJ so In her grounds at rudgmerrt, the learned SCJ netd that sitr Roltayu and snannrtan were equally Itahle tor the eocrdent noIdrrrgtnat— “Feouemukzin ktrrlalingan mengvnat itasatin Men spa dim memhevtkan t-nth tnlovmasl untukmerlyaktnkan Mrhtranrah Fengaxahan tug: ratarr dtbenkan tentang ><esart—kesan dr tempat xernatangan salt: Katveakan kendetaatrkenderaan dr daranr kemalannan Int Walatt bagatmanipun, Miltkamalt ma mendnpalt dun tidak dapal maniftkitn Kelerarwart saksrsalut lemlnminyi or pmlk narerraan tetan rnemtrudxan herbage! kemtmgktnart dar. kebatangkatlan tenrarrd N SIN Ywt:BtAPyvLM:IEt1hyYGv -war. sum ruuvrhnv wm be um law may he artgtnnuly urn, dnuuvrnnt m muws Mr

Tika 2.6.0 & Pytesseract-0.3.10

CB-A53KJ-283-11/2020

PLAINTIF 1. ) MUHAMMAD ZULKIFLEE BIN ANWAR 2. ) ROSMANIDAR BINTI RUSLI DEFENDAN MOHD NAIM BIN ABDULLAH

Civil Claim For Accident Matters:Keputusan Mahkamah bagi isu liabiliti dan kuantum gantirugi am dan gantirugi khas.

21/11/2023

Dato' Che Wan Zaidi Bin Che Wan Ibrahim

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=cb82e824-1b71-482c-87de-ecbae6e23638&Inline=true

CB-A53KJ-283-11-2020.pdf 21/11/2023 16:21:44 CB-A53KJ-283-11/2020 Kand. 64 S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N JOiCy3EbLEiH3uy65uI2OA **Note : Serial number will be used to verify the originality of this document via eFILING portal CB—1A53KJ—283—11/2020 Kand. 64 2411/2224 an as mum unmumn sssvsu 1EMERLON mwn NEGERI PAHANG. MALAYSIA smmu Mo: ca.As:><J.m.11/zazo mun 1.M|JHAM|lAD ZULKIFLEE am ANWAR puurmr 2 aosmunuuz amn ausu mm noun mum am AEDULLAN nsrsumm &§ME FENDANULUAN In W adahh mmulzn mammvaamm Ramadan Delendzn bag: sam kzmalangan man rays d\ m 94 5, man Kuanlan-Knma Lumpuv. ma-g Dan: 17 Feb 2020 Flamlfl panama aaaxan pemmggang mulamkzl No van 4465. P\zmnl kedua adalan mu ksndung dan wakl Imgnsx kepada Flamm Panama Defendan [Ma aaaxzn vemandu mmakar Nu con gm Kzmamngan bermku dw pemmpangan apabxla caveman dlkalakan |aIah mamnsxak maiuk ks slmpang nan u:\an§uaro\eh Plalnmsannsa hendak memmnng flv laman ssh Plamlw N ./mC:r.\EnLEM:uw5m2DA ma Sum IHIWDIY WW be used m mm a. nvwhuflly mm; dun-mm VII nF\uNG wrm [2| ma-nu penamn (elah mengalaml keoederaan akiba\ kemalangun Ievsebul dzn memvzuxzn lumuhm mhauap Devendan hagw mendapatkan gm mgl am, am‘ Medan flan kos Deiendan |a\ah mempemkmkan mnmnan mamm darn mamfaflkin penynuun pemneuaam Isu LIAEILITI xsmuusnu snxsu PLAINTIF [21 F\am1l\e\ah mamanggll 5 mug saksl mu spa sy. Ran Ahmad Fahmn hm Ra‘: lsmafl. pegawzw penyiasah spz, DI Ramnan Jeyzsmuan, dakmv yakav, spa, Rnmunldnv mm: mm. Wzlnlwl mm, spa, Nuvm Nadia hum Anwav‘ kakak Kevan: Flamuf panama dun SP5 Luumanm Hakxm hm And Hans‘ mapm Pmnni panama [41 r-mum perm. Hdak flapal memhell kslevangln kelanz zk\ba| kemalangzn helmmdak szdalkandm aan lulang kesehuuhan days upay. seam kekal :5; sm mm. seorang pegawzl penywasalmah mrmbecl kelerangan dzn memakmmkan bahawa bah:-A dan mrugambav man hadlr ke lempal kejadlan flan mengesahkzn bahawa kedua-dua kendeman mum bend: dllempat kemalanuan dahm kenflnn asal dan max ma:-man ss-1 (ehh melakarranh kasnv flan um rznah kasardan dnnndakan sebagaw -k-mu P2 dun P2 (no. N 1mcy;mzm:u,m2m um smm ...m.mm be used m van; .. mmmy mm: dun-mm VIZ mum puns! -m um»: . molar um. m . mung duty to knot: . ma /aulram mm mm and m. snnrpmsl ullhv Vwkuul recurred acoendi upon the wcumulnui “mg .1 mm uma A dnvurmawdflwlys .«-mu». mubmsmmwmnnwamswmmuwadawmoummwzysmnun to map wmn ma rang: aim! plmwt-:1 mm‘ [301 Mzhkzmah ma merumk kepaaa kes um Chnnzhlnu c. On v mm Abdul Km... 1. Another Annual mm 3 cu Supp us yang memumskzn bahawa. N nnsmndulyalapnrwnwnorxxinwnvonpublrcrvadladiwanln masorlablu dvsrsnce nenmd mm mm: m, m m :2: pvepnml my Any mmmy Wvnlspnne betweuv in mm; wouhiparmnllm mavpuny 1» mo mm Aaron: M ma wan! . Iurunelbls umtrysm.-y min nmmnm by :12 posmamny mmwi at man a dasmrcn, Inc vurml MN .. abh Ia Mn . mam wsml time how wrrw A: a mum dnwr he wm ». -oh 1.: vvwr tn mu m, and mmlnurxlfaly amtou, 1 In need anus [31] Eemnralkan kehrangen-kelevangzn .1. hadapan Mahkamah‘ mm jelas bahzwa mamas pxhak |e1nn max mehksznikan «mas darn langgungiawah sepem dlnyatakan rllnnuun kes-kes m Alas [321 am nu, berdasarxan pennalan (emadap kslzemngan salsw SP1, sm a... ma eksllm yang] mmuxmn. ma: Imbqngan kebaranqkahan. Mankamzn rlwmumakan Bahama keduadua Phmml perlamn flan wenaan (elnh cum dzn dipsrtanggungmwnhkan semnulmya ah: sw 1mCy.lEhLEM:luy66u\2DA «ms smm ...m.mm be used m van; .. mmmy mm: dun-mm VII mum pans! kemalanuan lersehut Lwamlm Ialah so so temadap pmak Pnamm can jug: uevenm nsu xumruun I331 Dalam rnembual kewlusan dan menenlukan ml kuanmm‘ Mahknmah ulan memmk kepada dokumermukumen yang man dveuelulm mam mnauux kzvada mllihan sepen benkuh 17 Lapovan nuunaran Hoiwral sum Nan Ahmad Shah bunarikh 25 Jun mm 2- Llpomn palubirin Human Suhan Hip mun Shun berlavikh 25 Me: zozu: ; upovan Fembaun Human Suhan Han Ahmad sm bsrlarikh 21 Me12D2D. 4- Uporin pakur Punt Pemhalan Llmvelsm Kebangsaan umaym benankh 15 Sememberwzfl. 5 Llpornn pakar Mahkou onopemc cm bennnkh 19 Seplember zomaan e. Lnpomn paknr Sunway Medina! Cenvzv henankh m Fehman 2021‘ [341 Dalam menenmkan award namwugw am an khas yang sun clan neusesuamn, Mahkamah was man mmmx kenadz pnnsw unflang— wanna rnanliv belkanaan award ganmum yarlu dipuluvkan m dahm ket mas Falqan Mahd mm: 1; cnmt Suing Tnmugn uumn-unanm N 1mC:rJEhLEM:uw5m2oA um smm ...m.mm be used m mm .. mmuny mm: dun-mm VI] muNG pm rmmt; Mahd Hllnu mm A211) 1/. Kuajaan Mzlaysla I Dr: 1 ms) 2 cu‘ sad» VA Ar-um: Harmd Emhnnn HMP merlyattakan swam benkut (1) /nsmmlmrdnvupvssarvodn zumpumwon mzu rwmm in‘: ma . purushmcrvl In unsung aamnvus m count name no! no main/and ay A‘/mommy and 1mm fmr wmpdivs-ulmn mm an meow wrduvvu The mm! mm vial dnoend mix; a dmlim olspecurabon rm wnlunnun olevrdencz WNCH lbmv me am o-‘my risk ar mm mm: mullsollhn m.mm m. mmuuga .u.movwm:.m.m« -vmdmx am: an my mwsnrzud mm afpkvoabrmy xr.§,»am-1, Du! wvllv . mww mmmmwnmummnmmmgurmn mssudamlaltnmermum sm.r.mr «-9-» to o. anacrwanbnunmuanyrnn word wmmy; mm H54: Munro! ‘m<oaman.1' Mlraaarniuu 1:/lhvwoms “mm 1»... semanm my man zvsa osnnlmly M . n.a..m.r an am! no! snuulnme [:5] Manama flmzm kes Fl-lcnor v Amour um Tnmpomr Lou (196911 ALL ER m pm muka sum 750 Salmon u meny|Nknn -m aamaats shmm 3. suclv mu: m. mm sarvsmk mun wamd nu! mmwvwmeyammm m.mn».u. avuxtravngnm, MI in mlmanrmam m be mm. Ind far [35] Mnhknmun gugu flalam membenzlkzn award bag: keiemruhzn gaminmi Ielah manuavnhfl-kn kermkan Marga nmngyas sans nmup. «my Inflasw, darn Mal malawang [:71 Kepuluurnelohdtbellknn padnIH.JanuaH2022 Ahsnnkepumsan zwad bag: gamlmgw zm darn mu mamm um am: 100% liabwliny mun sepem benkm sm 1mcyJEhLEM:Iuy65m2DA mm. smm ...m.mm .. LAIQ4 w may he mm-y mm: dun-mm VII mum pm zmmgyg am 17 Swuv Ynnumllic Brain Injury with DAI Glide 2 Faguarvl Dalendan \e\:h menghuuhknn Rmzsnmo no hag: kenedevaan m. secava gluha\ bersamz Kewdalian yang lam bevdasarkan kes Nuom Ku Slang :. Arm! v mu Abdullnh (‘"41 1 CU (Ran) 234‘ manakala Peguam Plamm |o\:h manghuphkan RMSOODOD an semm hemsmgan bag: kecedevaan lam bevdasarkan m Mohirnud Sazwln Fnlz Roslnn . .l.Inuvl s.nn. [zazu] pumu 1 Eng: menemukzn wrnlan awad bagi keosdauan Im, Mahkamah Isiah menuuk kepada Gmdelmes fur Awzms .n Personal Wm Claim sebagzl panduzn. Gan menaapau ham kewdavaan hand mmy yang melubnkan 'bedndden stale mm awareness", gurmzh pug dmyalakan an dalam Guidelines nemmn dw nnlma lendah man RM3nn,nmHm darn |urnIah hnugl fimzmeoo no Minkamin hdak neysemu dangan human Delendan nanm Pmmnl pedu dmen nwflfl secava glam memandangkan mam mennmaml ‘severe Drain mwry“ Mahksmah memuluskan bahawa Plmnm bemak umuk mendapal zwad yzng pmsman karana Flamm lelah mengalami pehugm kecedelaan yang xsenamn amhm kzmzlangan tersebut. O\ah nu, dangan mengaunmxm keosdarun flan kewlalan yang dlmamn Plamlw, galls panfluan dzn kes flahumzn mg mhujahkan clan mamm (evsebm, Mlhkimah memuluikan mhawa jummh Rmammnn no urnuk xeceaemn Im saham flan secava berzslngan denuan kecedsraan lam aaaxan N ./DxCy.lE|7LEM:uw5u\2DA um Sum ...n.. WW be .15.. m van; M m\g\ruHIy mm; dun-mm VIZ mum puns! 2) belvaluxan flan bersesuman Mahkamah mgalelah menelm clan memmbangkan Iaporan pakar Daleudln bzmnkh 1032021 yang umn mengemhkan keadaan P\a|ml panama yang menualaml xeuaran s=per1ihenku| . s-am: mama mm; mm hudrfl/ury 7 mm: a m . mmmaw vonaaws um V ~..mam.m 7 He naa no game, is rum VI m arpu/I up mm m. upngmposmon . H: .a wllbb in mm: ov walk 7 Ha mu-mm m. mmaamm - Lou ovcanaanaumau Peguam P\zIrml ma..am..anun RMIa,unn-no ham kecedevaan ml .1... Peguam Delendan velar: mananwanuau secali gluhal denqzn keceduvaan ‘severe mm Injury“ nag. menenlukzn gumlah awed ham kecedevzzn ml. Mahkamah |e\ah menquk kepada kes vn cnu Wu an 5 Anovv Boon chln F:n[lu13] FILRU 11: yang (emu mengawzvdkan Rmmoaa bag: kebederzzn yang sama dan ‘ugl Gmdelmes my Awzms wn Fecwnm lmuly Claim sebagal panduan. nan mendapau bag: keoedevazn nu, wrmah yang amyamn ax flabm Gmdelmes (evsabm lulah Rmsnnmm Mzhkzmah memuluskan bahamn yurmah RMIDMO no lugi xmaenan W mman bevpaluizn flan belsesualan rnemandangkan Pamm man mengalaml “loss :7! mns::\ansness' selepas kemalnngan nevsebut In sum: Injury mm Subcapluliv Haumalovna and Humopvnonuom sum nun Pegunm Plamlll menghnjahkan wsu.uun.nn hngx kecedeman ml darn Fenuam Defendan Ielah menuhulahkan secara glubal dengan keceflzlaan “severe mm Irqury“ Bag: menenlukan mum and bag! kaoedarian mu Mankamah Ielah maruluk kepada kes Vnan Cnun Khlang V Mlgnm Nynnd[2fl13’] Plum ma yam |e\ah menyavmdkan RM55 non bagw keoedelaan yang hnmpv sama flan memmuskan mm. jumuh Rmaamo on mu kecedelaan Im adalah wpaman dan belsesualan memamianukan wamm Ielah mengalaml keoedeman dw nmgm Hm-menu dengin grid: IV-HI am: kamalannan (ersehm M llnncln wuflrll of all um: and luwvr llmbl Pegunm Plamlw menghulahkan mzuooaaw bagi kecedevaan ml dan Peguam Delendan man mengmuahkan secavz g\uha\ dengan kecederaan ‘seveve Dram Injury“ Bag! manenmlurl wmlah awad nagw kecsdevaan \nL Mzhkzmzh le\zh memmk kepndn kes Mmynl Tnnlmnlny 5 sm Llg vm Turn: Back Hianq |2n1a] Plum 1 mg \e\ah meflgawamkan Rmsmm bag: N Jamil-|E|7LEM:uw5u\2DA mm Sum In-nhnv WW he used m mm u. nvwhuflly mm; dun-mm VII mum pm keceflerazn yang sama can juga Gmdalmes lar Awards m Pavsunad lruuly cum sehngal pammn, nan mendzpah bag: kenederasn nu, mmlah yang dmyalakan dv dilam Gmflehnen Ielsehul man flu anura rendnh mm. RM3‘mxHm nan Mmzh Imggw RM5,flm)W Mankamah mammusun mm |um\uh msnooon bagw keeedeman In mun berpaman dan bersesnmzn mernannangkan ma.-mt man menaaww muse‘: wasting pm kedua-dun hanngun alas Gan oawan badan behau 5) Gr-dc m Lu! Kidney Injury Feguam wzmm mengmuanm amsonao-an hag: kecsderzzn Am dan Feguam Delendzn |eIah menghujahkan xecarn global danger: kecedeman ‘severe bvam Injury‘ Bag! meuenmkan wmlan mu bagw keceflewan ml. Mzhkamah (ehh memjuk kepzda K2: 9....“ Anna fllumguu Mn Radhlkrmmln sunmun mm mm: as yang |:\uh mengamnmkan wzunoou hag! kswdenan yang sama Mahkamah memlfluskan bahavwa ‘urmah Rmmuuono bagl keoedeman W mun belmmlan .1... beuesuamn memandangkan vvamm man mengnlaml kecedevaan pad: bahagun buih pmgganu beluau padllahaplu N 1L:xcy.tEnLEM:uy\x5m2DA Nuns smm n-nhnrwm be used m van; .. mn.u.y mums dun-mm VIZ mum puns! 6? Lu: cs, cam and n Tnnvum Procuo rucum Paguarn Flamm msnghwahkin msmmmna bag: kaceflernn ml dam Peguam Detendan |elah menuhwznkan seczrz global derlnan umaenan “severe Dram mwry’ Bagw msnemukan mlman awafl hag: keoedeman ml Mahkamzh |e\an memluk kspada kn minamn Fauavun v Bhoknn n all Rujmohun s Am(sumnu.n all Nadavann-Yhlm nay; [zn1s] 2 pm 3:: u ylng man mengawamkan RM3oo,uLm bagw keoeflerun yang hampw samz nan guga Guldehnes Fm Awards In rrensanax Inmry Claim semen: panauan, dun mend-pan bagw keeedeman meme 0! me verlebrz causing Daravlfiqwa. nmuan yang dinyavukin an dnlam Gmdellnes Iersehm xalan aw anuva mman man Rmzzonnoou din lulvflah lmggn Rmzmauo on Mahkamuh memumskan bahawa jmmah RM3un.ann an hagw keoedevaan ml aaaxan hervaluvan dan bersesuaian memamlangkan Plalrmi man mengawm bebelapa kerelakan paaamang behkanu yang rnenyebahkan beluu -nmam Iumpun -km: kemamlgan nn 1» Own cemmimmd uumumd ll-aclun loll udiui wim dim! M M Ion nun. Peguam Flzmm mengmuahkzn RM4u,mJD—0D baa: ksoederaan ml dan Feguam Defendin man mengmqnhkan senala g\aha\ dengan keceuelzan 'ssvere hum wmury‘ Bag: menemukan mnxan awud bag: keceduaan mu Mahksmah man memjuk N ./mC:uEnLEM:uw5m2oA um Sum In-nhnv WW be used m mm u. nvwhuflly mm; dun-mm VI] .nuNG pm kepada kas Anmu Sylllq Kamarulzzmnn I um Iagi Mn cm. mm Slonu [znm] mmu 3 yang lelah merlqawardkan RM25,oun nagx kecederaan yang hampll samz dzn jug: Gu\uelInesVnrAmms m Parsunal |niuryC\aIm sebagll pandunn. Gan mcndapau bngw keoedeman .m, |umlah yang mnyatzkan m dalam Gumehnes telsehvl -am. av anura vendih walah Rmuomao flan wmlah um. RM3n,unnnn Mahkamah memumskan bahzwa mrmah RM25.o0EI on him keeedevann um mun berpammn dzm hersesuawzn memzndanqkan Phlnm man mengmamw kerelakan malummed pads mum" mdmsdan ma ulna aknbak kemalangan (ersehm aw Clnsed Fncbun Mldlhafl ul Lnft Humorux Peguzm mamm menghuflhkan RMzn,nnn-no bag: kecedelaan m. an Peguum Deiendan man menghufihkan secava g\eba\ dengan kacedarian ‘severe mam uumy‘ Bug: menenlukan “mm. mm hngl kecedeman .m Mankamah Ielah menquk kevada m Amur: run...“ snmm .5 on V am mm um Rahmln a. Dr: |2n1n] man 12 my ielah msnglwaldknn RM13,aoa bagw kenedevaan yang same man “as Guldehues my Awards m Pevsunm Vnnny Clawn sebagaw panduan flan mandapsli bagw keeederun mt, gumlah yang dmyzlakan m dalam Gmdelmes |ersebm man m anlava rundah ma» RMI2,00D-no Gan wmlah am nM27.5au uu Mankarnah memuluskan hanawa mrmah Rmtwovoo bag! kenedevaan VII! adman Dulvflmln den bevsersuamn hemasalkan lapovzn pakav ruamm N ./DxCy.lE|7LEM:uyfi5u\2DA um Sum ...m.. WW be .15.. m van; M m\g\ruHIy mm; dun-mm VIZ mum puns! yang msnyatakan mam uereman pada humerus Puamm yang hemm belsamhung aklbal kemalangan (aruhul 9) Llccmiomz . Lace:-nlirm wound 1):! an our anhrlor mck. lxpol n muscle 7 Dun laI:II-alum wound an cm Uvu nun hid: cl nook‘ upulng much 7 Lluuflnn wound o.sxo.5 cm om MI should" Imnnon wmmd 1x1 cm my AM-cuhllal mu, umnn-n wlv mm» van a! Hdluxlulnn . ucernflnn wanna an am am ulna up-ct. Ixpoiinn mnulvl Peguam Plamm menflhujahkan RI/140.000-an bug: keeedelaan ml flan Pegunm nevenaan man mengmqahkan ncavs g\oba\ dengan kecedeman ‘severe brain WW Bag! menenlukan mlmzh zwad hag! kecedevaan um Mahkamah man mtrlquk kspada kes Hana Ch Fm 5. Anal v Chung cnn noon; 5 Anor [zuan mum 12 mg Man mewawavdkan nmmuon my xeoaaevaan yang samn dun ‘ugn Gmdelmes fur Awavds .n Persona! Injury C\a\m sebagaw panduln, dan menaapan bagw kecadersan . . lumlah yang dmyzvakan m aalam euneunes |eIsehu| man an znlara vendah man mason-an flan Iumlah hnggx RM9.snnoa Mankaman memumskzn hzhawz mmlan RMHLDUU on hag! kacedenan ml ndahh betpnlman dan N Jcncysmanzuwmon Nuns Sum In-nhnv WW he used m mm u. nvwhuflly mm; dun-mm VII .nuNG pm [s| sm jugs mengesankan bahzw: zvan pzuahnin Pumnl panama dun oemann adalah dan hawah ks alas dalam wan kaszv flan kedu:— duakenderaan band: a. man yang szmz sehamm kemilangln mum m sm wan mngesman «emzpan kemukin \emk mowslknl Flamm pemnu adalah pada kasemmhan badan malaslkal, mznaxaxa nwmkav Delandan pula mengmamn kemsakan m bqhigmn pmlu pemanflu hadapan kanzn din pug: hnhagmn humpev hadipan SP1 mu mengamuktkan gamhargamharkenderaan yang mama sehagaw -x an P311141)- xal sun memakwmksn bahnwa hasn slasalan mendapan kemamngan mm apabtla moioslkal Planm penama sednng memmnng kandevaan mclakay Delendan yang berm: m 5.5. yang sedang msmbelok masuk kc swmvang sebehh kanan dan Flamw panama mak sempa| rnemhruk din mengelak Ialu mehnggar nanagm. 5151 mm mdnpan mm. Delendan SP1 man mangamllkzn salu kepmuszn penyvaialau me. «a Maqwslvaie uzm)“ memumlzngkan Iuniapm beherapa «am. yaw menghalang saw xepmum mukmmnd dzpal mkelualkan KEIERANGAN mks: nzrznnm M Dehnflan lehh mengemukakan veomng saksl mm sm. Mohd Nalm hm Amunuan, Deleudan sendm Immk mempemkmkan umman we-um N 1mcy;mzm:u,m2m um smm ...m.mm be used m van; .. mmmy mm: dun-mm VIZ mum puns! bersssuanan memandangkan vuamm |e\nh mengaxznu 4 lucevahons yang ianlk an nmgm yang benaman 10) Abmlon: V Lullflank . Vol-rupeclofrlflhtwrill — Swn umreulgmankll — Lmnugh — Donalupnunfnghnovl. Peguam Phlnlwl menghlqankan Rwunoo-an bagw keoedeman im an Peguzm Deiendln mu mmnmanuan scam gm: Hangar: kecederaan -smve bvam iluuly” Eagw menemukin wmlah awad hag! kscadersnn um, Mankamah man mermnk kapzda kas Illohd has new 3. Sam us: Mn Shuluh Abd Rnhmnn [N1A]PlLRU sa yang Ielah mengywlmkan ma non mg: kecefleraan yang sama dun wga Gmdelmas fur Awards m Pevsunal lmmy clam sebngal panama dim mendapall Dag! kscaduian ml |umlah yang nyalakan ax dalam G Ielsebm man amara rendzh Ialah Rmamnn dzn Mulah lwlggl Rusgno no Mahkimah memuluskan bahlwa juvman Rmsmu no bsgi kenedevaan ml min bevpalmzn dun belsesuamn memamiangkan Plamwwan mangamm 5 ahrasnn m bahzman yang heflaman Vines N ./DxCy.lE|7LEM:uyfi5u\2DA um Sum ...m.. WW be .15.. m van; M m\g\ruHIy mm; dun-mm VIZ mum puns! up 2 nunmnfl wound in -mug n.5xn.§ cm rwev ndla mu Peguam Plamm mengmqankan RMHLUKIMIII hag! kecedevaan um dan Pegulm Devsnaan xehh mengmqahkan secava g\oba\ dengan kecedevaan "se-veve mam mgury‘ Bag: menenmkan numnan awad Dam xmam-an um Mnhkamah man meruluk kepada kes rum Ahmld Synh|rTuIn Dahllan l.Annrv cmn Knew Moi 5 Anor I20-231 PILRU 99 yang |e\ah mengammnn Rmemo hag! keoedelzan yang samz Mzhkzrnan memuluskan nanawa jumlah RM5.D00 no mg. kecedevain ml mum. herpalulan nan nmesuman memandarwkan Fuamm Mall mengllamn 1 punuuvsd wound axmn kemalangnn Iersebm 12) Sun: 7 1m cm uvvrlhu mu 7 Sn! um ovor the neck . Mulliph mu av-rlhn mu nxlllny 7 1x1 am over me put rlovaiplcl of nqm rm: Peguam Plamm meugluqihkan nM2omu4zu bag: kecedevaan ml dan Pequam Dalendan man mawnuianxan mm glvbal dengan kecederaan ‘severe mam mmy Eagw menanmkan Aumlah awsd bag! keceuman mi. Mnhkamah mun memguk kepnda Gnbdzllnes my Awams m Pemmax Injury Clawm sebagzl Dznduan‘ dan mundapih mi kncidalaan m Allmlah ma dmynvakan flu damn: Gmflelmes lzrsehm walan dl anlau rendzn man Rmsaa-ac dun .-mus» lmggx Rmumoooo Mahkamah memuluskan hahnwa ‘ummh RMm.m)0 on Day! kecedevazn um 11 N Jamil-|E|7LEM:uw5u\2DA mm Sum In-nhnv WW he used m mm u. nvwhuflly mm; dun-mm VII mum pm adflah helpamlan flan bevsesuamn memandangkan Plamm Ielah mengalarm A warm on banaglarl yang bmamaru cmnnue K555 up Kchllangan Penflapanan Man Haflipan spa mu Mamn Fuamm panama man msmnen kehennaan bahuwa Flamm venama man bekena sebagm pembarvm walan expo bavanuan m senawanu damn nan Rmzon on sehmnn spa (elm: mengemukakan sup ga]IP|amI1lperIamz my dnznda sebaaav Iluihil PI 1. Peguam Dalendan talah msnghuilhkan bahawa kehwlangan pendapalan masa hedzpan ml perlu dnulak Kevan: mak dlplvdkan Ie1.apv|uru\mem|:us|NI|lhan aflernnmsehnnyak RM153‘ am) no selelah mmlak V3 unluk kas sarz rudup. peguam masnm wla manumuankan mean, we as seblgax kahflnngan peqdapalan mas:-1 naduuan F'Imn|fl Deflama ummamaan kvvaan aanama 15 um... Mahkamah man menelnu kelevangan spa flan mas Imbangzn kehararlgkahan. Mahkarnah uarvuasruu bahawa Plammpenamn sememangnya bekerja szbemm kemzlannzn uengzn nenaapavan RM1200.DD aauulan bevdasanknn ukulblt P11 Walauliaqahnanapun‘ Mahkamah mendupah hanawa xaaaaan N 1mC:rJEnLEM:uw5m2oA ma saw ...m.mm be used m mm ma mmuny mm: dun-mm VI] muNG pm fizukm Prmnhlpertamn aaaa nan mlyang maagaxam severe hum mlury nan Inga mmuuh max mamungkmkan unluk Plamm panama kemhah bekena men nu, Fade nemah Mznkameh ma.-mu Denaua whamsnvya umnxan ganwugl kemsngan keupayaan unmk bekevpa dam hukannya kemhngan pendapalan masa naaapan Mankamm man msmwk kavada xaa Ami Amnn . Niznm cm Nasun pm] 2 cu 321 .1... Shanmunim sop-I V Zlmil Ana... mm» a. Ann! [2001] u cu m yang |elan Inembenzrkan awzd yang sarna bagw keadaan yang menman Mahkamsh lslih menimbangksn umuv Wawnlwpenama yang mzsm muda flan ma mus pekeuann darl iumlah vendivilan iabsmm xamaxa-gan‘ Mahkamah memmuskan Bahama selurmzh nMI5u.mm an uanna hedahy auahh sesuan flan adwldwbenkan kepada Flamm panama Iebagll ganxw kelmangan keupayaan unluk hekena 2; Km penjagnn mum sabelun parblunnn Eerdasiflun Iaporan yaks! Plamw den ueaenaan, puamnr Denim: man mengaxanu kscadevaan ‘swam brim mmnr aan lumpuhdnn memevmkan kepada penjngmn yang vapx sm lemh memaldumkan behau dan am. kehlavga hematml umuk meagamnu pemhanm mman hag: mengumskan wamm panama mam um mamw wnuk buvbuil aauuman xa-an-a kn: mg agak mahal Selepas keluur flan Vmsprml flan sehelum parmcaraan uauuma, P\a\nN perlami kelah um: ulzh mu behau selama 23 hulnn Eemnsnlkan lapomn palur wammm mum 2. N Jammauzmsmzoa ma Sum ...m.. M“ be used m mm a. nflmnnflly MIN; dun-mm Va muNG Wm N telah menyalakan kepsllunn kspada pembanm nnnan din nus yang mcadangkan men Dokhnr Pakav zdalah Rmwua on sebulan namn psrkan \nI,Mihkanah1e|3h memmk kepnda kes Lltmn mm v Snwlynh H] Sin! 5. 0vII1Il‘|l 1 MLRN an yang man mamuluikan bahiwa mam lumman kc: pevwjagaln‘ pecuagaan yang mbenkan oleh seorznv men, mu napa Immk anak nan saudava mars man man pnmpaun kewangan oxen nu‘ hevdasarkan mm»: In flan kelevarlgan svu aan spa‘ Muhklmah memumsknn semman Rmmua an x 2: [Man RM3B.I§2 on dlbenzvkan uan dmenxan keuaua spa sebagau xos pemagaan hanan sebelum pemucaman 3; Km ponjngun llavlan nlevn Perhlcarun Ealdaiamzn Iapurln pakar pmnw dan Deleudan, r-nnnm panama hehh mengmalm kecederaan ‘severe Bram mpwy‘ dan Iumplm dan memerlukan kepada psmlgaln yang rap: Sebpas uemnxnngan mnnr penune |eIan nuaga nleh mu dan am. kaluarga yam: Vim. SP4 Ielah mamaklumkln hnhavwa umal sukal umuk Re‘-am memzgz Flzmm panama kevanl keadaan helm: yang memenukan penpagun yang vapw darn umuv mu behau pad:-1 mass klm |e\ah merlcapaw umur 49 lanun sm mamaklumkan bahawa behau din am. keluarg: bemum unmk mengnama: nduk ke pusal ‘agzan Hanan mumng cam) yang mempunyul n 1L:xcy.\EnLEM:uy\x5m2DA Nuns snnnw ...n.mn be used m van; .. mn.ny mm: dun-mm wa mum puns! laslm I/infl Ienuw sens mm-awn yang venom dahm menguruskan umsan nanan behau Mankamah Iehan menem: Vzvnrzn Dakav neum nan Dakar orlhupadlk Flsmw an meauapan bahnwn behiu Isiah menmdnngkan bahawa Plamm panama memellukan pgaan 24 Jim ovan Muvawll benaunan samada mrumnh mu .1. Insmuhnnahxed nuvsmg nosmnax Plamm panama ma duingkikln barkemungkwun akan mengalamn komphkasl aaxamm “deep: vein |7Immbt7s\s' flan “reculvam mug mfecluml tasplranon ana nmsxma pneumonia] wan: Neuro De4endnn pigs .1. aauam lapnmnnya «a4an menyzlakan hahawa - ma paman: Is fufly dopendem an M caragwara Vov an ms sell-care need‘ an 'mv|ew anna hmelmme lmrn ma scadenh me man: s hkaly la vemam m a mmmlvy mnsmons sme and depenflenl an M5 reglvers 001 all ms saw L21: naad vanna my 471 ms remammg years’ an Dr Ramuan ma aamua msmhen kememngin \e\nh memaklumkan haharws mwakan d\mana—mana huspnal mwaiau lamulan am man kcwrurawlun yang henauhah nknn membmehkan pancaganan xompuxasa vengesanan am! kump\Ikas4 can vawatin awal komplwkasx Kaednh-knedah IN akan menyebahkan wmpak mm xa avax jangkahayal pasam spa semasa membuai Vnwannn ke mmah Plmnm penama man mendavah bahzwz mu kepadz mamm panama man bemmur as lahun uan aamnya mu meninggni uum, P mill hendaklch 25 am xmcylzmzmluwfimzon ma am n-nhnrwm be used m mm a. nrW\ruH|:I mm: dun-mm Va aF\uNG pm aiyagaan nuvsmg we kemna behau memenukzn pemzgaan yang sempuma dlsebabkan Plamm panama man-punya. llslnn mendapul kampllknsu senaus sepem nag sales SP2 teuh mencadnngkzn kos d1 dahm Vapurarmya bag! msmulmnalwzed ma sebanyik dw amava RML137 sn Nngga m2.122 so unwk nemmggu bergznmnu kevadz pmnan mun hunk lelmzsuk kus nuanmaxan Manama hag: nama cave. SP: Ielah mencadangkan jumah Rm 574 so Iabman bennuuk nos pemakanan dan am banluan kosmavan Pmak Wannm lellh mangmnnnxan bahawz keadaan Plawwf panama yang «am an vumpnn lenebul menyanamn Plamm ganama bemak unluk menflapal koa hagw walu paniagun nanan an msmlmanahzed cave gan norgaaamn lapman sr-2 Flallml mangnuyankun sehnrwak RMZ.756y79l 25 Mznakah gm oavanann pula (man menghuiihkan bahavwn mnnm pedamz maswh wan gnaga annnan guan ann kemavqa darn manghuflhkun sehanyak RMsas,a2:« za aolelah bulakan knmlgansw sebarvyak 1/: Mankumzh telah menshlw keselumhan Iapuvzn pakar kedua-dus pmak darn Inga kelemngan spa, 5:4 dun jug: SP2 flan mendapau banawa Plamm‘ panama (elm menualarm xacagemn mg |emk nan nnngun sepamang hidup behnu yang memevmkzn suulu peruzgaan vapl sehmn 24 1am Mzhkaman jug: mangammn kna Iaktur umur mu wmnm panama yang kmi mun bemmuv 4a N nnaynanananygsnzon Nana s.nn ...n.mn be used m van; me nrimruflly mm: dun-mm wa mum puns! (amm dzn kumng mampu unluk memaga Plzmm sepenunnya Mahkaman rvwndapah hahawa Plamlfl panama bemak urmlk mendapankan kas penpagann an sebum: msunmnua cure derm merlflelakkan sebamng komphkasl yang senus uan W9. memaruangkan mguanawn wamm Mahkamah lelah menerlmz kus yam: a-caaangkan mall SP2 .1‘ mam Iawvannya bagl msnlurmhzefl care dun memumskan hanawa kos sehan nag. nagaan larsebul man Iebanyak mm 21 x 355 ham x 25 lahun flan secam kesemvuhanyu nequmxan RM2.75§,79125 uanpa Imam 4; xmnngm Kluplyaan umuk Eerkzhwln sm wan memaklumkzn hahawz keadaan Puamm Panama my ‘vanalilwe slate‘ adihh keknl sepuqang hsdup. Eerdasarxan Derkala nu, Plamm panama |e\alI mtmahun umuk kemlanslin keupaym umuk nemnhwm sebanyzk RM3n.um) an hemasarxan K25 Mahmud Zulku Hunuh 5 nlu Iaqi my F: um. Shun [2mmLRnu1m Feguam Devemn Ielah mangnumxan hahawa kemlangzn mvayaan urmlk benuhwin um musk kenna hdnk Eenaya dlbukukan Mahkaman hzrsehqu aenqzn hujahan peguam Dalundan darn menaapau bahawa Ptamm mama man sisal membuklnkan smus Flzmm sehemm kemalangzn hellaku nan wga gagil membcngklflun spa-npa kelenngan bahawa Fwnm panama mengawm kemlangan pmspek unluk belkanwln alau zx N 1mC:rJEhLEM:uw5m2oA um smm ...m.mm be used m mm .. mmuny mm: dun-mm VI] muNG pm pull |e\ah hallunang aliu msrnpunym \eman maup sebemm uamannaan beflaku onan nu Mzhkamah menquk kevada kas Kalirvanan Sundanjno A Anor v. Pun cmng Hock [2017] a mm» m flan mendzpah Iunmlan Flamm panama Dam kemlangan kaupayzln unluk bevkzhwin mam. max amuman din dnolak 5) nun (a) : kn: pnrulamn koluugn mnnxlarahl Plalmll panama an hmplval Pmnlflpenama le\ah nmaa an Mama! sunan Han Ahmad Shah sehma 23 Fun sebpas kemalangan. Separuzng mmpoh Ievsehm‘ keluzvgz lelah meuwan Flam! din mengemnman kos peqalanan perm um um: ke mspnan clan nu. Mahkzmah memhennrkan mmulan um sehanyak Rmso when x 2: nan = nmzoo on us: daur am: an munasanan 5) men. (n) : kni p-nalanan uwaun wlulan Bevdzsavkan kelerangan swa, Plalnm panama aaanxan Kama dan mempunyaw rawamn susulan sebanyak sehulan sewn segak keluav nan naspna: sauna an ke hnspnal, ss-3 Ievpaksa mnnggunaknn penmmmanan ambman Kevan: Flamlrl panama udak bmah rnembengkukkan bndan aan kos yang mxama-«an swan sebanyak RMam1 unluk lam permanan pavax aan bank In N ./L:xcy.\EnLEM:uw5m2DA ma sum In-nhnv M“ be used m van; me m\g\ruHIy MIN; dun-mm wa mum puns! ss-2 |e\an mengesahkan bahawa keadun P\am(Il panama .m adalan kakal sepamam-1 mauv din «amour. mm larlikanayat helmu mam: selama 25 lamm Eemasavkan Vaporan laparnn Dakar dzn lapovan Wrubatan my ma, Mahkamlh ma mendapall banawz kezflaan pnamm panama zmallah |e1uk dzn kuma Kaadaan Im akanmenyehilzkan behau pm ksvaua lawman susman sepanpanu mdup nauau Olen nu, Mahkanuh mambenarkan mnman vm Iecara kasehuvhan sabanyak RM9a.9ua oo Alanna «aeaam hag: «ampan 25 Iamm 77 mm in) mm (0 : m n-mbollan malunan h-I-LII ummnan flln kn: mumbnll unmmaran Eemasarkan kglerangan spa be4Iau lean memlmzmakan bavsngtn xenuman dam ubavan-ubaxan sepem sum bemmnen, Iammn vakaw nuang. servls mkaruub‘ nsu basah din Karina Gan maonunenoe sheets sehanynk RM2 unn sehulan SP3 lglah mengemukzn yasmsu pemnanan levsehu|sepem m lkuhul P5 .1.» n Menurul Vavnmn pakav neuvo Plamhl flan Defendzn Walnut Panama memellukan mm mm Badofen dan smp Lacxume un|uk mengulangkan limb spashcny aan snnen ms s|oo\s Kos bag! ubat mu talan sebanyak RM150 oo senulan sewn darlpada mu, Dakar mm vnamw ‘uga menyalakan bahawa mmmu permmn mempunyal 2n peralus nslku unluk m N 1mC:rJEnLEM:uw5m2oA ma Snr1n\nnnhnrwH\I>e used m mm .. anmmuuy mm: dun-mm Va .num wrm um sm |e\ah membeu kdevangan dan memzklumkan hznawa beilau man mamhenkin (anda -mm umuk mmbexuk ks man flan mempenananxzn kenderaan sebemm bemerm un|uk meamexnx Aoamua mem3:\\k.|n mm: kenderaan‘ nelnu mm. membelnk masuk ke slmpang kanzrl umuk ke Kamvung Pzyz Paswr imartma sehuah mL1luiIki|\IBR uas yang duang dun mu balakana xeun melempuh mmokav be In m bahaglan nadzpan Kanzn dam zlubal pebnggzmn Izersebul mumkar helm: «am hnlang knwalin an Ievmak ke hampnn sebemm melanggat dlwdev mm bemamuwin mngkang 5P1 telan mernbual lapovin pofil dalam mu; 3 .am selepas kemalnngan .1... dnandaknn sehagzx -mun m 2. [111 Sernasa wmenman ba\as.5D1Ialah msnindakan '><' vans ram. kasnr sehagm lemnal kemahangnn berlaku flan memzklumkan bahzwa helviu lehh nmama uau raver kabahawan nunuspunu: seoenm. kenmangan herlaku [<21 Sm juga berseflmu bahawa kesan kemszkan pafla mnlnkar man menuniukkin bahawa ssbuah moIm\|u\ hendak memmong pm mm. Ilu flan hanp nzmpak sehuah ma|os\ka\ saha|a yang menmwng behau wauauuga.manapm.,so1 ma hersemu bmmwa kemnlangan ml benaku dlsenahkzn clan -mm Wm‘ N 1mC:rJEhLEM:uw5m2oA um smm ...m.mm be used m mm .. mmuny mm: dun-mm VI] muNG pm mnuapan sawan uan mameflukan um arm-apv\ap|>c yang berjuman Rwm no sehulan Mahkaman lelah menelm mum: pa dun P7 sena xamangan spa clan msndlvah baniwa mamw Isiah memlzukhkan keperluan pevalalan makan am. uhahn (ersebm sebsnyak RM2,oon no sabulan Mahkamalllllga oammuu uenuan uaporan pakalflalnmbemasarkan keadun kesmnlan Plammyang «amx damn kecdaan v¢g:1i|we stile makl Plzmhl panama sememangrwa memevmkan lab\e|Ban:\a1zn dan Symp Lscmlnse unwk mangurangkan limb spasllchydanwilan ma Ihuulidanqan kns Rmsu on sebulan aemenaan uhat anhepwlewn vuln‘ Mnhkamlh um beuemu dengan caumgan pm: heuebul keuna separuang pevhmavaan svz. spa aan spa lelan menacsamn bahawa Pu.-vnf nenama naak pamah msnuilarvu szwan max nan Iznkh kemabngan mnggz nan Im Fenflapal paknv (evsehnn hanyn mengauknn bamwa belnu my. mampm-ya: mum sahanyak zu pevalus san2]a umuk mendzpa| sawnn flan sehmggn kw bemm pemuh behau menaapa| swan Ievsehul aaknanukanam Plamm panama ada\ah salama 25 lahurl clan nu. bagllunman um Mahkaman membe<1arkan|unMan F\zm|\l ueveru uenmn, mumnan blrzzu lambahln uau kalenukapan vsmbanan Rmzooox 12 x 25 «am. = nmmmmo no (Varwz vaeaam N 1mC:rJEnLEM:uw5m2oA ma Snr1n\nnuhnrw\HI>e used m mm ma mmuny mm: dun-mm VI] muNG pm mxas ubalan Yablrl Baclofen dzn Symp unume RM15Dx12x25Izhun=RM45‘nlmfl01vanp:faIdah] 1:) Kos mm Arm spam: — dnmak 5; Ium (.1 : km pumbollnn dokumul. human pllxzr am not an-mun p-lklr Mznkamah memmuskzn kasaluruhan mmulan an bawah item 1:) Imtuk kus pembeuan dokumen, lapovnn palurdin kus kehadnan nakarbenumlnh RM11 no on adamh nuzfllkan kos lmdakan my mm 1. Suflovlng Bemzsarknn Vapalan pakar keduadua mm, Muhkamah mendlpan Plamm panama mengalam keucdarian pzlah flan memenukzn rawalan suauhn Inrmasuklah kemungklnan pembedahan mas: hadapan mm heluu amanxan belch menuanal ><omp\IkasI yang leruk m masa hzdzvan Mahlumah Iehah menquk kapada kas snanmugm. Gnpll v Zzlnal mam M. am 1. Anal mm] a cm 729 yang mamhenaman ganlwmgl pain .s wflenng un|uk pemhedahan mas. hadipin. om nu, Mahkamah memumskan unluk msmmarxan mmman PIa\n|W Am sehanyak msnoo no name lzedahy \2 N 1mC:rJEhLEM:uw5m2oA um smm ...m.mm be used m mm .. mmuny mm: dun-mm VI] muNG pm [35] Mznkalnah ma |e\zh rnemhenavkan faedan pads Kadzv 5'/. selnmm bngw ganmugx am dnn mu. penyevahnn saman sehmgga unkh pnnghaklrnan an 2.5% ialamm ban: car-nntgv km din um. kemmangan semngga lankh pengnzmmm Faedan 5-/. semun was dmenzrkan alas Julmah pengnakvman din Iznkh psnmmman sehlnggi nenyenesamn pemm flan kn: mengwkm sum din um (sedan bag\ kos- kus yang me\Iha1kan mar: naaapan nu ' CHE WAN ZAIDI am one wm IERANIM] Mahkamah Sesyecu nmsnan, Pnhana u Man: 21:22 n N 1mC:rJEhLEM:uw5m2oA um smm ...m.mm be used m mm .. mmuny mm: dun-mm VI] muNG pm nnnuu DAN PENEMUAN MAHKAIIAH Isu LIAEILIYI [131 Seksyen1l)IAkIa Ketnringan 1950 mempemnlukkan hahzwa‘ '5-sc1»on1o1 Burdens/wool m Vllnouvnl mum: rm mm! m wvennmudymovllas In my mm Hg!!! 9, may ouaendenr an m. xlslnmzvaflnrrs mm n. mm muslnmrvl ma: moss mu ens! I7)WDunapovsonIsboundInpmvI!VIaunp1Incso(snyfIzV nrssudmnl m. mm u/pma/Ne: orvllvzlperszzifl [14] rm dahm kes rm... Nallorlll Bhd V. Pawn]: and sun Ehu[1IIS|4 mu 613.H:k:m Low Hap mm; was: man nu)menya(akan bahawl‘ 'Unfl:rucnnn1mHJMfluEv\4evweAn wso mm a..mw.cmm m gwn judymlm .. in my me! nghl m lwahmly dlpindnnlnn me emlence or mm mm a. ....m. mull wave In-n muse um um In mmwa. Ina p\-ImtflmuslpvuvusuchlaclxasnupmnmvdvsxmslvueoauflIomvnjmgmnnl isle us nqhllndalm nuns! I11: aa:.m.m.« .mma.m mm In pay me uumn the mm." m mum 5 an we mamlm ; man In my In wanna here, mg pmnlrfl muil pm: as am. lmln-l11u=\y' [151 cu dalam kc: Mg cnulsla v Ill: mun av. Ali [tau] 1 ms as Nzkxm Hashim YenpA Sam (nada ms: nu) rem menjeliskan pals banawu. m an zman rm mglwgnnn m. arms .4 pmvlnq ma alogmmn or nngwlnu vexhanmepemrr-Mm rv-I|<=s n unlassmuwAv0dmc\aseu4achswnuchIam a pinumrmun m lavml no ma .;u.m Thu phlmfl mmlsmm lmrrnnhvew Inn mew has Dav! a mum: wecmcuvvev\evamuIyhyIlu anlamml mm. umn-d ml damn: .9 me plxmlm n V: raua m pmva (7145 ms lchun mnst van - [15] Dengan nu zdzlah Mas banawi belzln pembuklian m alas nmbongan kebaranguhan dawn kes seumpmm Imlellelak an balm mhak Plamul yang rnendakwa kacuawan pamm pmak Dalandan-Dehndan ubehml Ia berpmdah ke plhnk oacaman hag: memzwab dukwzzn kecualamlu n7] Wahuhagawmanapun‘ haw kas wn, berdalankun xsxmngan yang aua, Mankamnh mendapah bahawu hauz keleranqan dlpevohrll aanpaua Plamul panama yang udak holeh member: kelenngan kemna behau Imak sednflmn am am mlang keseluluhan am upaya seuva kakal sahmuna han palhlcirian alubai xemanangan Vni us] Semmnya, Mamman akan bergnnlung keuada kedevangan» kelarangun lam yang zdz umuk memlnuskzll wsu uamnnu. Eerdiulkan kalavarvgan sm dan Sm sana eksnml-eksm yang mkemukakan sepamang pemncauzn Mankzmah memululkan mawa Kama-duu pmx |e\ah saute bersamn menyumhang cum din benanugunguan paua Kim! 50 an uannm [19] aemasaman kalevangan yang aua, Mmtamah menflapan karvnalanguu heflaku apamna ma|os\ka\ Planmpeflama mung nmwmng kendevaan momkav Defundan yang sedang memnenex masuk ke slmpang «wan xanan dun um I panama hdak sempa| memhrek clan menuelak lalu melanggzv bahzulan ms: kanzn nadapan moiokir Dev-nu-n my Dapaxan versw kuluahngan mi mga mun selarl dan kanslslen dsnuan penomunn hnswl smsalan nleh sm dzn mga kelenmgan sm sendm rnengenm hagavmana kamalangan nmbm btvlaku sens: mum P2 dun P2 on dun gamhavgamhal kemsakan an may-r P3 (a)-u) wauamganmanapmn psnsmuarl velsl ken-mlangan Ievsebumelum dapal memnwskan uu mum Dada Iakal Inn [211 Manlumah semusnya pellu manen|ukarI swapakah my menyumlaanqkan kmam. flan ‘nga uka| kecuamn yang dlsurnbangkzn uleh pmak-plhak dnlam kemzlangan Im Mahkamah talah menelm Phflmg P\am|W din mendapatl bahawa Flimlll Ielah memphdkan hunr-bum kecuaun Deienflan sepem a. [Java 5 (a) runny: |n)Penya1a Tunlulan P\a\mfl. Manakah Deiemfiln pma (e\ah menafikzn hunrin kacuman tzersabul nan mekelakkan hahzm Plamm mam. lelah menyumhangkan kepaua kecualan den mempldknn hmwhum kacuaxan Flamw pemlnl seven! an parn 51a)mngga(ap)Pany3ta Pambelaan Defendzn [221 Semah menelm keseluvuhan ketevangan yang an Mahkaman menamu meqngan sm bahawa belmu um. memoen Isyarat unluk membsbk kc lunnn darn mempevlahznkan kendevaan nbelum herhznn memhelok zdalah knnilwan dsngan Ilparnn pans man In gum mz din kelevangnn tersebul mzk benaya ms:-gxar sun dlpnhhkan nleh wamm semasa pemanksaln bahs Olen nu. keterangzn bahlwl sm N 1mcy;man:u,m2on Nuns smm n-nhnrwm be used m van; .. nrimruflly mm: dun-mm VIZ mum puns! Ie\zh memben Iswral sebemm msmbelnk kc Kanan adalah mnenma uleh Mahkamnh [231 wauaunagaumnapun, semua pemenk: n balas, Mahksmah mendinah bahawa sm Man mernakmmkin hihzwz behau hdak mar ads mainswkal yang sedang memmnng kendeman belmu am my; sedur semen beflakunya kemalanuan can max sm |aIan memaklumkan bahawa beuau Isiah melmm cenmn s\s\ kmmn mu hemknng dnn max mehhat kendevaan sabelum membeluk ka kinan Wahuhaqawmanivun. sm .ug.u hevsetmu nmw. kemmangan m. benaku mun msebahknn Glen blmd wax [243 Owen nu, Pada nemah Mankamzh. kmerangan sm bahzwa behan max udar Ida momxm: yang mammng hem semau ksmaunain heriaku |e\an menumukkan banawa sm Imak member! pemzhan kepzda kehadnan mmosukm nu. .u yang aednng memmnng kendemnn behau sebemm kernmangan wzlaupun behau |el2l1 mengalakan ada melmzl oennin 5:5. kanan den bexaxang sebelnm membemk Kelevangan sm hahiwa kamalanqan YN baflaku aklhat darlpada Mind rpm ma menuvuukkan bahnwa Delendan man mm mengamhn sehamng Ianqkah bamaxmau sebelum membebk ks kznin Kcsdun mi menunjukkan bahzwz vr-xlaupun (emu memben Asyaval Delendzn lelan ntambsbk secava ma.-mu an um bemah-nan Vanna mengambul kuva garak mam: pgnama yang sedang memomnu flan helakzng momkar Dsiendan Pad: human Ma:-uman, “mm msmbeknk ks kanan‘ Delendan mempunyaw ‘specm duty M we umuk memssukan hahawn um kendava-an xam m belakang pm lavak yam: am: Denna» member? N 1mC:rJEhLEM:uw5m2oA um smm ...m.mm be used m mm .. mmuny mm: dun-mm VI] muNG pm Isylval sanaia adalah uuak mencukupw unmk wenaan melepiskan linggungmwah knus unmk Izemalrnail sebelum mtmbeluk ke karun [251 Tanggunmnvah khas umuk nemarmau WU mm dnnyanakan .1. dalam he: ‘ran Khong Km :1 Um cu... nuqnsq 1 Mm” 292 yang memuiuskan sepem benku|. - u rsugvawa (Amlmmolurdmmg m mm . mm amiss 1». warm’ mulauflrnffic wrmuulfirslsseuuglhllllncrensncluzrpnssl mnnuullurnrngnclnumzmremorronmmutraficmwwvmrch mam . spscvl! duryuicln mm. .s not mmmy amuwa by gt»/mg m mnnntronal gym in awake [rum musk noum M m. mu pm-mm «lid for m my pamcu/ur sxluanon rs . mm mm. and dupmds an 1». has am pamm smnnron - mm. [26] Mahkamah jugs telah mennmhangkan nu}aI\an Defendan hahawl bu blmd spc| Ie:sehu| mzlan Ielpakzi kepada mum sendm yang Ielan memmgqang din mu helakang kanan mnlakav Deiendan Dafendan 1e\ah mzmguk kepada Ker Ylharanl Muhd mm 1. Am V Chan mm V... (19991: cu tan, umuk menwkang hujahan Delsndan Mahkamah wnlnuhagawmanapun ndak beneluju dengan hujnhan |ersebul flan kee «mm perlu dnbczakan kemna Ianyu zdalah kemalangan anun sebuah mmaslkaldan mqz sebuan rnmnlon yang mans: mm munasahah unluk kejadlan blmd um henaku m beflakang sahuah mmurlon yang mempunyaw sme kendeman yznn besar an menghalang nanuangun sebuan moumkal yang bands :1: belakang malokzn [27] Bemeza dengzn lzkta kemalangan m dahm kes ml min antava um-an motokav dun mmoiIka\ yung man. was hemah Mahkamah, keudlan mm sum hdak senarusnyz herlaku aamnya mnamunak Isiah member! pemauan flan manganmn \angI<nn—langknn yang bemzlwvzlw sebelum membekvk kc kznzn 52:1 kendevaan kaveia adalah pun mun mu danvada sax sebum won yang betkemunglunan boleh menghalang panflangan kenueman Lam dl belakang Imus: Damanduan Selim uanpaaa nu, dam hnhawa kemnlangan hevlaku semusz wanm memolang kenderzzn uavanaan jug: marlunjukkjn xannungumn unna spolnruudak heflaku kerana pm kenka nu. voswsw kemevuan zdalamldzk selan dun sehzmsnyz boleh munan ms\a4uI oermm sm kinin dam bslakang kendelaan nenanaan Hka mnya beml dlhual sebemm membehk ke kanzn [25] Wmaubagalmanavuny Mankamah ma -namsapau bahnwa manna Mm menyumhang cnamalam kemalangzn mlzuabwla man rnsmandu lam dzn rnemmunu sacari hdak nan-an-m pan. gmak semmm Fakm pgmanuunn law mu acmnh msoknng dengan nzsll slasalan sm yang manyatakan hahawa mamm panama hdak sempax membvek flan neaan. Resin kemsakan pada nnaxoanan Plawml penama yang nnangalann karviakaruienlk pan: keseluvuhan man mamsnxauma managamnanxan sedenuknan sanan. nu, keadaan kecedevaan manna panama y-Ing pavah nan humour kama jug; meuggambalkan sunlu panannungan yang kuzl aluhal pemanduan yang Vagu man Flamlfl panama land!!! [29] Du dmzm kes Chal nun Chang A Anor y. zannan Abidm Illohni sauan a. Annr [1993] 4 cu E33‘ nan Chin J menyaiakzn hanawiy n 1L:xcy.\EnLEM:uy\x5m2DA Nuns Snr1n\nnnhnrwH\I>e used m van; me nrighuflly mums dun-mm wa mum wrm

Tika 2.6.0 & Pytesseract-0.3.10

AA-42H-26-07/2022

PERAYU Pendakwa Raya RESPONDEN THUR AQIL BIN ZAHARUDDIN

Tatacara Jenayah – Rayuan – rayuan pendakwaan terhadap hukumanTertuduh mengaku salah bagi kesalahan di bawah seksyen 326 Kanun KeseksaanSama ada hukuman yang dijatuhkan memadai – sama ada kepentingan awam dan keseriusan kesalahan telah diberi pertimbangan sewajarnya.

21/11/2023

YA Dato' Bhupindar Singh A/L Gurcharan Singh Preet

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=8929bbb9-c2a2-48cc-a2fe-6bf01d85e89a&Inline=true

21/11/2023 10:28:26 AA-42H-26-07/2022 Kand. 30 S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ubspiaLCzEii/mvwHYXomg **Note : Serial number will be used to verify the originality of this document via eFILING portal AA—l2H—26—07/2022 Kand. 2,,11/2224 ,2 DALAM MAHKAMAM TINGGI MALAVA DALAM NEGERI PERAK DARUL RIDZUAN, MALAYSIA RAVUAN JENAVAH N AA-42H-2s—u7I2o22 ANTARA PENDAKWA RAVA PERAVU DAN THUR Ann. BIN ZAHARUDDIN RESPONDEN PENGHAKIMAN Perldzhuluan [1] Pada 18 Jmaw 2022‘ responaen Ie\ah mengaku sa\ah bagx perluduhan pmdaan an bawah ssksyen 325 Kanun Keseksaan dan duatuhkan hukuman pememaraan selama (empon uga tahun bermula darn (ankh ,aum hukum Pmak pendakwaan tldsk berpuas nan dengan hukuman yang duamhkan meh Hakim Mahkamah Sesyen yang buaksana (‘HMS’) darn (elah merayu temadav hukuman Iersebut [2] benkul Perluduhan pmdaan (erhadap responden ada\ah sepem yang 'Bahawa kamu paa. av/177/202:7, [em mm kurang 7 an malam, bedsmpal av rumah slams! Kzsc, Hale Ksaaysng 1 Kvmpurvg Kepayarvg nu Pm, 3U50lpa/1,dtdulsmDnemhKmla,A1rdnLnmNegsflP9mkd:duyanderIgan ssngaja lo/an msndalangkan Kecedsmzn mm mm mangsa /aw Nonama mm Malvamad {No x/p stazvs-05-6164; dengan marvggunflknn sobering klyu mm yang ,.:.. drgunakarv Salinger‘ 3:»/um manyarang halal: msnyababkan ksmnhan mm yang aemnm, ksmu ls/an mslakuksn sualu kssaranan yang Do/an omukum ctr buwah ssksysn :25 Kamm Keseksaan - [3] Mahkamah Im selelah mendengar human darlpada ksdua-dua plhak dan mengamhul ma segaxa ha! keadaan sens vekod rayuan dalam kes ml, lelah mengefepxkan hukuman yang dualuhkan men HMS dan menggarmkannya dengsn hukuman pemenjavaan selama enam lahun bermula dam 13 Jmax 2:122 Nasan Mankaman inn umuk menggsnukan hukuman zemauap respanden akan mlerangkan saepas Im ram ring kn [4] Fans 31 man zuzu um Vebxh kuvang 100 malam, Norzamma mun Mchamad (‘mangsa') lelah mengnamar vakannyi bemama Nurrafiqah bum Zaharuddm balwk ke rumah dw alamal K250, Hala Kepayang 3‘ Kampung Kepayang Faxr Park. mun, Perak Apabna sampan ax mrnah Iersebul, adlk kepada rakannya ianu Thu! Aqll hm Zahamddln trespondsn‘) Ialah menyerang dan memukul mangsa dengan menggunskan sabalang ksyu bmuh Iebm kurang lapan kah N m,mc.mmw.wxm, um smm ...m.mm be used m van; .. mmmy mm: dun-mm VIZ mum puns! Martian. Ilx um mmm (or: parllcuhrzrlmu, but am . nuximum umm. And lalvu 2.. m. com to decide wnn .2, within Mat msxlrnwn, mu nppmpllalo sonttnco In! each rrfminal m the plmcular cfmumruncu ol nan can, Not only ... rsgzrd In econ rrimu. um ... man! to - rh erimmll, 2». Cam! In: rm rrgnurvd the my in mm: whnmar m n. Ianlant or man.- [penekarvarv dnambuhj [19] Says mendapau HMS udak member: panekanan sewajamys kepada Kepenlvngan swam da\am merualuhkan hukurnan xemaaap respcnden Hukuman yang mkenakan nams memben gamharan yang Mas kepada vesponden alaupun mana-mana olang lam bahawa kesalahan mengakvbilxan kecederaan parah memnakan kesalahan yang senus dan udak bnleh mpandang nngan Va hendaklah mempunym Kesarv pengmaran kepada respnnden dan man mengnanang ovang lam danpada memkukan kesmahan ml Hukuman Iersebul mesh mempunyaw Impak unmk msnoegah respunaen mahupun mans-mana mdwldu xam danpada melakukan kesalahan yang sama [201 Hukuman yang dualuhkan dalam kes yang menyebabkan kecederaan parah mesmah menghancar mese] ‘ems kepada masyarakal Seslzpa yang mangaxmaxkan kecedelaan parah kepada mana-mane orang akan dmukum dengan sawayamya lm adalan kerana sehap mdnwdu dalam masyarakal mempunyal nak unmx bsvgsrak bebas dan hak ml 1: N mip\iLCl£u!mvwMVXomy ma Sum In-nhnv M“ be used m yam me m\g\ruHIy mm; dun-mm vn mum puns! mesh duamln sanap masa Mana—mana orang yang bemndsk secara ganas dan menyebabkan keoederaan paran kepada erang Vim akan berdepan dengan hukuman yang berm Mahkamah max akan benmak ansur dan memandang serius lerhadap seslapa yang melakukan kesawanan Keoeueraan paran dengan sengaja [21] Mankaman Pevsekutuan dalam kes PF 11. Dana‘ wud Manaor [2005] 1 Cu 421 ce\ah merujuk kepada kes R v‘ Sargenl [1974] en Cr. App R 14 yang te\ah memumskan ‘Those classical Pflflcrphs are summud ua n W words anmmn, datunance, pmvantmn and rshabrlnalmn Any we who comes m sentence uugma/way: m have Imus /our claxsmalprmc/pies n rmnd and :9 apply them :9 ma ractsorme case :0 sea mu oflvvomhas Ihagmmasl mwurrance m m. can wan wmchhe u duulmg / mu szan mm rsmaulron The om remmenroonc-pt alarv aye '0! an lya and mom rm mm no /Myer prays any mm In our cnmmar Law Tn-ru u, hawcvvr. mm." mm al remhuunn which I: frequently or/ulualmd: n u um society, manna me coma, malt mow Its nbnnnence mumcu/ar was man», and mu only my in which on mm can show ws rs by mu unlunu: my pull. The caum do not have to Iellecl nub/n: opmmn On me ulher hand man: must not dmsgard r: Palhavs the mam duly nllhe court IS :9 /sadpub/I0 opvmon ‘ lnanaxanan anamnani [22] Responder: hams menenma nukuman yang sa(Impa\ dengan xesmahan Kecederaan paran yang dlakxbzlkan kepada mangsa Hukuman yang mxenaxan man HMS sememangnya (Idak memadaw dan 11 N mivs:LCx.Eu!mvwMVxomv ma Snr1n\n-nhnrwmlxe used m mm ma mm-y mm: flan-mm VI] mum pm lerlalu rmgan bagi kesalahan rsspanderv Mohd Zawawx saueh HMR (pada kenka nu) damn ks PP v. Mohamed Dlmly Mohamed Jedi [201 a] 5 cu 692 te\ah menerangkan bahawn -(14).... ml: Yaw mar lhe ssnlsncs must be pmpomonala to ham m. ssnwsness ollhe Mensa ....1 me neg... ofrespansrbflny all/19 mm. The concept olprupomnnsmy was expllmed m m. c....a.a.. Supmme Caunoass am. /.....e. [2o121s<:z:1: 1201211 sm 41:... pnra :7 as Iolmws Pmpnmonahly r: m. true qua non al 5 my sanclmn Fast. m. principle easy... 2...: . ....2...c. mum me away cl 1... anm. This .5 I:/ass/y 1.... to me gang... .2. .:........:.....c... n pmmole: ,.......~e far vncmns ...a ensure: fiubho confidence ... me ..m.c. Jyslem Slcond, mo pnmpn. nrp.op..m'u...:Iry animus n... . ........c. does not txcud wr... .. Ipprvptllle, yivon 29.. rnor-I nr.....wmn:m. ..m.. alhnd-r in ms xenss, mepnnctafies selves . ..'........g or mslrlrnmy Iurmhon and ensums ...u..:e re. the am... [151 The pmlectvun ol sucrery .. one at ma man... purpose: or pumahmenl undar [he pnncrple oi prupamarmmy m Clmnnan v The Queen M73120 ALE‘ 1, 5, (he cowl 5...... The ntcossury ....: ..m......,'.mm..uo.. Iorcrimlnal s....:.:..... 1. the pmtuclion ofsoriqry Imm cnnducf won... I... law pmscllbet Pumshmenl .5 (we mean: by mm. sucrely mm; 1!: duapamval of cnmmal .:.».a...., by war. w.......g ls gtven an... mnssquencu .« Mme and by whmh rslamv oi .. oflenaqrcarv aomelrmes o. ussrsled Cllmmal snnclmns am p....m..»e, and may we no. mI7r:1od;ud»crz!ry except for m. p...pas. alpmleclmg some nor 1.. an .x..... beyond wine! .5 necessary to serum Ihatpulwse - lpenekanzn mtambah) oxen nu‘ hukuman yang duamhkan hendaklah menggambarkan kesenusan kesalahan mu den se|Impa\ dengan kasalahan yang dllikukan bagx melmdungl masyarakat [23] Mankaman yuga (e\ah menelm (rend nukuman yang duatuhkan bag: keseflahan keoederaan paran herpanduan pnnslp yang Ie\ah dlpuiuskan oxen Mahkamah Agung da\am k5 Molld. Abdullah Ang Swee King v. Public Prosecutor [1987] CL) (Rm) 209 yang menyalakan bahawa '/n assessmg me /mm alousramal senlenes me Cam! mus! rack at me ave/afilzmmre m persnsme by oonsmsnna rwslm me Ulavrlyo/me Mia av o/fence camrmrtad, «com me ram m m. cummman af Ills aliens: Wmly, ma presence Dr mono. alnwllgubng lsdar: and munmy the sentences that have been ympma n we past my smn/av misuse: m delelmme me ma olssntsncmg pahcy. n any,’ Trend untuk kesalahan dl bawah seksyen 325 Kanun Keseksaan bag» terludun yang mengaku sflah adalah sepeni yang benkut (3) PF v. Kw Nqo [mu] 5 CLJ zne, Mahkamah Tmggx (elah mengetspxkan hukuman pemenjaraan sakama 1 nan din denda RM1‘5D0 on yang duatuhkan men Mahkamah Sesyen dan menggamlkannya dengan hukuman pememaraan se\ama 5 lahun Tenuduh (elah menynnban aswd ke atas mangsa 1. sn mspmcxzurmvwwxomv -um smm ...n.mn be used m mm .. mmuny mm: dun-mm VI] mum pm (17) IE) (9) Anbzlagzn Murugesu lwn‘ PP um] I ms 133!‘ hukuman pememaraan se\ama B (ahun flan 2 sebalan dwkekalkan a\eh Mahkamah Tmggw Mangsa |e\ah mpukux dengan sebalang hes: PP v. Abdul mum Aha Smut (suPri)‘ Mahkamah Rayuan le\ah mengaxaskan kepulusan Mahkarnah Tmggx yang mengekaxkan hukuman mauamm :11 bawah ssksyen 294 KTJ dan dlgarmkan dengan hukuman Pememaraan se\ama wo Kahun Mangsa man ameaeuxan dengan parang Eudimall Che Mama! V. PP [ZDI7] 1 LNS 1535 Mahkamah Tlnggx man msngekalkan hukuman pemeruaraan se\ama a Iihun flan 1 sebacan, mangsa telah dlpukul dengan kayu den been Kuku kambmg Jami! Dun V. PP[2|'l|B]1 LNS I91, Mahkamah TIngg\ lelah mengeteplkan hukuman pemenjaraan 2 lahun dan dxgarmkan dengarv hukuman pemeruaraan se\ama 1 lahun dam hukuman 1 sebalan dwkekmkan Mahkamah Rayuan telah mengekalkan hukuman yang duaumkan aleh Mahkarnah Tlnggv Terluduh Iemh mencederakan mangsa dengan sebatang new 15 sw mpmc.mmw.wxm -ms Sum In-nhnv WW he used m mm u. nvwhuflly mm; dun-mm VII mum pm 1027, Mahkamah Tmggl |eIah mengekalkan hukuman pememavaan selama a lahun nagx dun kesalahan |etapx penmah hukuman benman sevsnxak dxkelepwkan dan mpennuanxan un|uk benalan bsraslngan menyebabkan kecederaan panah kepada due erang mangsa dengan manggunakan asld PP lwn. Vuvanp Nadwelu [2022] 1 Mahkamah Tmggl telah msngetepwkan pemeruaraan 3 namm dam menggarmkannya dengan hukuman psmeruaraan selama 10 lahun dan 2 sebalan Temmuh menggunakan jag yang mengandungv an psnas‘ kesa\ahan m bawah seksyen 325 Kamm Keseksaan den dlbaca belsama semen 326A Kamm Keseksaan Berdasarkan trend hukuman an alas bagl kesamaan dx bawah seksyen 326 Kanun Keseksaan, apamla «emmun mengiku salah hukurnan yang duzatuhkan ada\ah zmara 5 hlngga 10 lamm [25] Saya ‘uga |elah mengambu kva sens member! perlimbangan yang sewzuamya kepada pengakuan salah respcrmen, Iayuan responden flan vakta bahawa kesalahan Im melupakan kesarahan penama responden 15 -um Sum ...m.. WW be .15.. m van; M m\g\ruHIy mm; dun-mm VIZ mum puns! sw m,mc.mmw.wxm, ' ah lunti Badrul Hisham [2020] 1 LNS Tenuduh LNs hukuman Dalam kes Eachik Abdul Rahman v. PP [2004] 2 cm 512 Mahkamah Rayuan te\ah memutuskan "The learned judge appearx to have men Ms wsw m.»m.111 mm as grvsn In every ms mm 11 pmunpmas gum The pasmon m /aw 1: my 1 rs gonuully lcmpled m an amused person new be given am or dvscaunt Iur pleading gurity (:99 San Sac mm 1 PP /1975} 1 ms 155 (197512 MLJ134 wv Su/zr/nanAhmad[1992[4 cu 2253,11-.2921;1 cu 447 (Rem [1sva11 ML./ 74, PP V Ravtndlun 5. Ors[1992]1LNS 47, new 1 ML./ 45) Nuwever, 1/11‘: 1; not . smc! rule as the mm may, 1.. Inc exemrxe 11111.; duarslron refuse 1» grant any dvscuurvl m an nppmcnwe cuss {rec Zardon Shani! V PP was; 4 cu 441,1... my 5 Ora V PP[1vs5) 2 cu 155 mas; cm 412.,» A53; 1»: npplmalmn m favour afarv mum dzpends an 1". 1.11; and ctmumslances of each case (5.9 Wang Km Chuen pm V pr-1199121 1L/vs 14s.[1791j1 ML./ :21; The :rrL‘umslarIc:s m mm . gmfryplaa wwnol have any wwgm are vanad m szvenlyof the mm mmmmed may oulwmgh 11.. mmgatvng sflscl or . gmlfy plea (569 Loh Hock Sang 5 Ann! .1 pp 11979; 1 ms :11‘ man; 2 MLJ 1:, WV 00 Lang Swee 1. Or: 1191111 1 ms 1ov,(1ya1)1 ML! 247; wnm public 1.15.251 demand: 11 deterrent ssrvtsnui m m. cvmumslancas a1 a pm!/oulsr case, man 1». area 5/ . gmlfy was run! also give W /see Sim Gsk Yong V pp (159511 sLR5:7, Fm Gawmnsn Cmnderv Narr 1155312 cu 3717) A gmllyplea oanmal also be 1 pmm11mmga1mg lam: when nflaclive/y no mam to the charge 1: avaxluble m the accused (me up V Law Knk VI/sI[1§9E] 2 cu ms, [ma] 2 cu (RApI 259) ~ Dalam kes IN, Delhi dllekankan bahawa kepenlmgan swam din rnangsa mengatasw Kepenllngin respanden Orang awam max akan dlhndungn uka Mahkamah mengenakan hukuman yang leriam M93" 11 sm m,mc.mmw.wxm, mm. 5.1.1 ...m.mm .. .1... .11 mm .. nrighvnflly mm: dun-mm VII mum pans! Kepenllngan awam menghendakl supaya hukuman herbenluk pervoegahan dtkenakan \erhadap respanden Tambahan pula mskaun Ielah dwambwl ma bevdasarkan pengakuan sum: respunden subperenggan 172D[I p(c)1m KTJ [26] Eerdasarkan kepada a\asanra\asan dan pnnsm undangrundang yang dmyalakan an alas dan senexan mengambfl Kwa segala ha! keadaan dalam kss um dapalan saya adalan bahawa hukuman pemsmaraan uga lahun yang duatuhkan oleh HMS hdak memadav dan Ieflalu nngan pka umanumgkan dengan kesermsan kesmahan yang Vakukan O\eh xtu‘ hukuman psmemaraan uga Lahun dlkelepwkan dan dlgarmkan dengan hukuman pememaraan selama enam Iahun bemmla dan ca Julal 2022 Hukuman VH berada da\am halasan hukuman kes»kes Ierdahmu flan xa wga meneermlnkan lrend hukuman semasa yang pm pengamanan says ada\ah wajar, uarpannan Sena seIImpa\ dengan Kssalahan responder: Banankh 21 November 2023 Akmcrd PREET) INGH AIL GURCI-1 Mahkamah Tmggu Mamys Ipoh sw miwiLCx.Eu!mvwMV -um Sum ...m.. WW .5... m van; M m\g\ruHIy mm; dun-mm VIZ mum puns! Fxhak-Pmak Eagx pmax Perayu Khazrm Haffiz hm Khahl, Twmbalan Pendakwa Raya Megan Perak Bag! pvhak Responden Kenny La: Chas Ken, Vayasan aamuan Guzman Kebangsaan Negen Perak 19 sw mmc.mmw.wxomy -um smm ...m.mm be used m mm .. mmuny mm: dun-mm VI] muNG pm I5) Abu Bakar dan mmah Wu ke Balal Pulls Sg Senam sawumzan hm Jaavar Kemudwannyay mangsa |e\ah dwbawa cleh Muhammad N Hafiz hm Isnu anggola pohs yang benugas an balal Iersebm msndapall bahaglin lengan Km mangsa benumuran aaran, langan kanan mangsa [max boleh dIangka| flan mangsa da\am Keadaan lercnngapcungap menahan kesakuan aklbal mpuxul Selemsnya amhmans [swan dlpanggll unluk membawa mangsa ks nospnal bag! mendapmkan rawalan den Vaporan makluma\ panama (P2) |elah mbual [5] Oman dnangkap oxen pnhak polls dx rumannya Rampasan barang kes mu Pads 5 Ogos 2020 ‘am Vebwh kurang 12 10 (engah nan, respcnden sebatang kayu huhm |e\ah dlbual danpada responden Aklbal Kecederaan yang malamn mangsa Ie\ah mmasuxxan ke wad nospnal pada 1 Ogns 2020 mm mbenarkan pmang pads 3 090: 2020 Menurm laporan peruba\an yang dlkemukakan mangsa mengaxann kecedarian ‘c/osed /raczuna ngm 0/ecranan" dan “/acelairon wound over lelt arm” dan lelah dlbenkan vawalan “recon plalmg over ngm mecranan” serla ‘wound dslmdament overand toilet and sumnng avsrlsn arm“ [71 mspnau wanu Fusal Repel 4203/20 pada 4 Dgos 2:120 (P3) Mangsa mga man membual Vapolan pohs setelah kaluar dam syn mip|:LC1Eu!mvwMVXumy 3 -um, smm n-nhnrwm .. used m yew .. anmnnuly mm: dun-mm VIZ .nuNG W uannan Mnhknmuh [5] Di perlngkil rayuan mengenal hukuman‘ pnnswp undangrundang adalah mancap bahawa Mahkamah nanya akan mengganggu hukuman mahkamah perhlcaraan saxnanya hukuman yang du.IIuhkan merupakan hukurnan yang temyata nenemnan alau terlalu nngan atau menyalarn undangmndang Ksadaan lam yang membenarkan campur (angan Mahkamah mengenau sssualu hukuman aaaxan apabfla mahkamah permcaraan (elah khllaf tentang undangamdang alau xnnav da\am pemlalan pnnslp-prmslp hukuman dan hukuman yang auamkan ada\ah max sesual dengan lakls uan hal keidaan yang lelah dlhuklnkan [9] Dawn kes PP Mn. Ramakrmuun Subramnniam a. on [2012] 9 CLJ 443 Mahkamah Rayuan «elan memuluskan bahawa ynmangnnu pnnslp ysngflukuman yang media Ids, sump many yang balsa/an sham mencrvma /mkumsrv yang mumps! dengan berm/k kssalahan yang dnlakukan Mahksmah hendaldah men/aluhkan flukuman manurul undang-undang unluk msnsnlmwv supiya rmkumln yang drkennkan lemadsp pssalalv rm adu, Dsrsusuamn dun selmmal dsngan apaapa maranan yang ddakuksnnyn rm Ada/an ma msmadr prmsrp urrdang—I/rvdangystng mamp banswa mshkamah yang msndengarrayuan nduk senarusnys calnpur lzrvgan dervgan rmkuman yang drkenukan we/v nalum pemrcalsan aan :9/ilunya Ildak afivan msnukar hukuman mslumkan runya be/puss mm mm: Imkuman yang uyamnm olsh hakrm Derksnaan rlu tamysln am: mm memadar alau mencukwr alau keleflaiuarv nlsu mu ssh alsu pun mmk mevuplkan Ivukuman yang we/ar mfimarrdarvgkun semua /am yang amaankan, alau aanm mallkamnn tarseau!;e/.550:-Isalsll dtda/am nmn.u..pnnw yang belurdulam Denrlamrv A N mips:LClEu!mvwHVXumy Nuns smm n-nhnrwm be used m van; .. nrighvnflly mm: m.n.n wa mum puns! nukumarv Prllmp Imdsng—urIdarIg yang mevvslvlukzm kzlwalnn dan mm... keuulusan berkmtan rlangan hukuman man d»g.snxkan danger: ;sVas da/zm kss Bnandulananaa ./zyanlaks V P911751] 1 ms 139 .1... has new Sen Arvwur /m.:..... V PP/2:202] 3 cu 457 [10] Mahkamah Rayuan dslam kes PP v. 9 an Hoe[2a15J 4 CLJ B69 le\aI1 mengganskan panduan yang sama apabua memuluskan -114; The apps/Isle cowl can and wtlrmfnrfem .. the M15... rmyotedby the my cum .. .. .5 sulnsflpd 1.... ..., cl m. Ivflowmg Your grounds ... made am 3.; m sanxmcrnmuavsnsa mmea wrung dumstanastalns W9. 1...»... Bears rm». gamma, m Thule mad been .. anur .... 4... par! 0/ me mar [udgu .. appracxalmgt/'1: mammal lack: waved Dslolu NW. [D] n... ........o. was mongmpnnc-pie, 9. 1.1. we sentence Imposed was mamisavry 9......“ oumzdawart /15; m sum/ur vem, the Com ul Cmmna! Appeal VI Dunks: V Duactol nl Fubbc nmemm 1217101501 71 sard ilpam m semencrng .5 not . scnence ar mmnemarmar appmuan 0/ any 5.: /bmmla 1: vs a normative scrsnoe ramerman .. physical mu... wmcn mm mto acmunl m. clrcumslnrmnx .4 me allenderss wsfil is the nflencs andlns mp»: arm ofience on me mmmunw, A sentence may look :9 be Iemenl because u .5 mama m on me ullendef, mu allows and the allended but, In our syskm a([u:m':e, me 4...: wun AS the only wnsmumanar »m.m:.a.. mm. .5 empowered and suvorwgvv .. detsnmmng winch ssnlsnce m mums: an an ollenaerurv ma facts or me pamwlarcnss An lppnllatt cowl would mm imm... umm m. ....m.c. I: wrong 1:. prvnwplc ornun I-tuy nmn um ouzassive ar unduly um": Hwmvur, m.. it mm 5: naming wrung wnn mo prvrlmpk, Ml "mm mny n. Incnaud by tho .pp.nm some .1 n u unduly romm rn. pmmgr. or pmpamonamy pcrvatlos through nu ma». systtm or/mu. rn procaaun. mmam and sancttom.“ [plnakanzn mummy (hhat juga Pub Pmuculnr v. Mohamed Nor 5 on [1955] 2 ML.) zon; Bhnudullnanda Jnyililaku v. Puhllc Flonclllor (19311 I MLJ :3; [19211] 1 LNS us «an Public Proncuzorv. Lon Chnan Falt [1976]1 LNS 102; (199512 MLJ 155) [11] Berpandukan nas-nas dw alas, pevsoalan yang perm duawab adalah sama ada hukuman yang dualuhkan oleh HMS memadan dengan kesalahan yang dxlakukan aleh responder: Pemnlukan seksyen 325 Kanun Keseksaan adaxan sepem yang henkul ':m vnmmmy uuilrvg gnovnlu‘ mm by dlngomu: valporu or mum Vl/hoover, clear: In the me pmvmed by section an vclwvlanhy cauxss gnevous mm by means many msln/msnllorxlvaavmg slnnbmg orcultmg ol any rnstrumslvl wmcn used as u weflmm pl-memos, ».1 we/y In cause deem or any scheduled weBD0" M spasm: under me Commw and sxpmm Subslancex and orrenswe Wssaons Am 195:: arby mean: or (V! many healed substance, why man: Many poison ar any comwsrve substance. or by man: alarvy explasrv: substsnoa, or by means orsny xubstarrcs wmcn yr #5 nilllvnau: m the human body to mha/9. to swallow. or to mufva mm m. blond, orby means of any ammal, mm D: punumd with impriaanmonl Io! . lorm wmn mly «mm: In rvmvfy yours. um shnllnlsn ». mm In mu one whipping‘ [paneknnan dnambah] N mip\iLCl£u!mvwHVXumy mm Sum In-nhnv WW he .15.. m mm M m\g\ruHIy mm; dun-mm vn mum puns! [121 Bagl kesalahan an bawah seksyen 325 Kanun Keseksaan hukuman pemamaraan makswmum yang men dhaluhkan adalah semngga Zfllahun dan wga bo\eh mdenna Gan dlssbal Dalam memperllmbangkan rayuan mi, says man menehh pengnakunan was yang (erkandung dalam Rekod Rayuan mu 1 «an muka sum 13 mngga as Sscsra nngkas a<as-an yang mpemnmangxan men HMS adalah seperli yang benkut “/91 The Court accepted lhe accused person’: gumy plan and lock mm account Ills aggmvatmg and mlllgstmg Iaclors and me MI!!! case and avrvlanced the accused to J yuus nnpnmmm (mm Ins date or canvicbon [171 ms mawnmn senlervcs Imderlrus mmn was 247 years, and .1 yams are wvmm mo pruswvbed par-oa pa] The mterext cl me mum must be balanced wlm ms minus! 0/ ma human 1247/ The accused in ms use ma no gmwuus norwrclmv and this was ms (rrstahbncs ‘~ [131 Perkara Lam yang dmyatakan dalam penghakiman ms :a\ah rayuan danpada responflan dan penghmaharv pmik pendakwaan semen menehlv pengnamnan HMS‘ saya mendapali secara keseluruhan penghakvnan (ersebm Ieflalu nngkas dan mask menerangkan secara kunknl mengapa responder: harvya dualuhkan hukuman pemenjaraan selama Ibga Iahun Penghaklmsn HMS Ru Mdak menghuralkan apakah laklar pemberalan nukuman yang lelah dlpemmbangkan N m,mc.znnw.wxan, um smm n-nhnrwm be used m van; .. mn.u.y mm: dun-mm VIZ mum puns! [141 Responuen dalam kes mu telah mengaku sa\ah sebelum perblcavaan bermula‘ oleh wtu bevdasarkan seksyen 172:3 Kanun Talacara Jenayah rxn‘) respcnden hendaklah duatuhkan hukuman menglkutsubperenggan172D(|)[c)(>I)KTJ lm bermakni respnndenmak bmeh duatuhkan hukuman pemeruaraan mebbmw 10 (ahun kelana bemak mendapat dlskaun pengakuan nersaxannya Tamhahan puli pengecuallan yang xercam da\am subseksyen 1720(2) dan (3) KTJ max lerpakal dalam Kes wm uman Sylmsul Fazwan Abn1uIAxiz v. PP mun] 1 LNS 2201 dan PP lwn. Mohd Harry Mohd Vusuk [1010] 1 LNS 12:1) [15] Kesalahan an bawah seksyen 325 Kamm Kaseksaan mempaxan sualu kesalahan yang sews Hukuman yang auaumkan oleh r-was ndak memadax flengan kesa\ahan yang dllakukan o\eh respnnden flan leflalu nngan HMS max mengamnn ma Keaenusan kesalahan yang auakukan oleh responden Responder: te\ah memuxm mangsa berkalrkah sehmgga (angan kanan mangsa mengiflamv keretakan Akmal moeaerakan, Iengan Km mangsa berlumuran darah dan Ierpaksa menenma lugs Jamxan muuk P2 den P3) Kecederaan mangsa dlsukang oleh lzpnran pembslan (P12) yang jelas menyaeaxan kecederaan pada Vengan km mangsa lerpaksa duamk Iallu ‘tone! and sulurmg overlefl arm“ Mangsa |e\ah mengalaml kecederaan parah axmau dupukul Lanna belas kesmn men rseponaen dengan sebatang buluh x sw m,mc.mmw.wxm, -um Sum ...m.. WW be .15.. m van; M m\g\ruHIy mm; dun-mm VIZ mum puns! (16) Ferlu dwambxl ma mga bahawa Iesponflerv (elah memukw seurang wamla yang max dapal mempenahankan mm-ya dengan sebauing bum: Jwka mums: gamhar senjala yang dlgunikan adalah JEVES balang buluh Inn menyerupal balang buluh yang |eba\ darn masanya mgunaxan men pengawal kesewamacan Mangsa sudah Ientu menga\am| kesakuan yang Iemk akibal kerelakan pada Iangan darn mulan lukanya Fakla Im hdak mamm ma Vangsung oxen HMS dakam psnghaklmannya [17] Berdasarkan penghakwman HMS, kesxmpman yang dapat dnbual \a\ah HMS lelah membenkan perllmbangan berleblhan kepada kepenllngan respcnden danpadi kepemlngan swam Saya faham bahawa kepermngan vespanden perlu mpemmhangkan «mam damm memaluhkan hukuman. kesexmhangan anlara kepenlmgan respcnden dan kapermngan awam henaakxan mpemmbangkan dengan sewajamya supaya kepenlmgan awam dan mangsa khususnya mammx ma usmu mexaks.-makan keadflan Damn kes PP v. Abdul Hnllm Abd sama: 1201414 CLJ 12 Raus sham HMR [pads kem ma ¢e\ah berkata ‘The senlsncu mlnond mm flfwlys whet puallc mrmssa ans! lakmg mm account me nwlrgabon admncad by mo accused {Sss Smrvatm/rat summamam v PF'[2011] 5 cm 56; [1 11 Auudges, we mus! llways mmma aursstves Ina! me mm1.mn:armr. 5/ .1 ;udg: m . mmmr mm: systum I: to ensure mat the measure a! punishment should be pmpaflmnale :0 (ha allcncs mmmmsa 9 sw mmc.mmw.wxomy -um smm ...m.mm be used m mm .. mmuny mm: dun-mm VI] muNG pm A pinion who mnnn . mac... slime: must no ;-un:.n..: mmry ml Lsamsd marlau Ior me accused nm umsd ms noun :0 mamram mp brndmg ow! order nnpom by me courts bsluw wnn pupae; n M, warp la mm 1» ms ruquasl, tho punnc wm think um um court .2. pulling the Interest al cnmirufs nbavn ma inmm ol mo mane. nm cannot be mun. As xlalsd ssmer Mrs type ofcnmma! wnducl mus! ha dealt wrm savara/Y by me courts n y: vs 10 serve as . wlmmg la ulnar mm be ullemdars In our nmgmena, Inc mnmn af pun/rc mtaresl may 1:; near served mmugn me tmneslbon als oummar senlance gvvsn ms grawly Md omsllsclars swmang the wmrrgfuhactmmplamsxi or Sunly, ¢au.Ir’ny vmvmu nun to . dvfulcnlus r-new mmlln being. as in on: me. mum mm Punhlhmcnr unau znu law Ibenekanan auanmanl [we] Dalam manna: lempoh hukuman yang pam duamhkan Mahkamah hendaklah mengamnu anmn Kira fakler Kepermngan awam Da\am kes R v. Ball :5 cy. App. R 154, Hakim Hnnery (elah menerangkan msngenau kepenllngan awam dan menyatakan -rn decrdmg me appmonale sentence a Cowl smw/L1 always be gwded by certain consmeratrons Tn: ms: and Iourmur 1- mo puouc /numx. rm rnminll llw is puuucry .nrm.4, not only mm up. abjlc! nlpunlsnlng cnmo, numn In mu hapc oIpnvonHnqI1.A pmpmenrem, passed n Dubhc, serves me nublrc mterusl n two ways n rnzy carer ems/s wno man: be tempted to try mm as sssmmg In an» my mom an MC supposrban‘ ma! me 0/(Mdor rs mug!!! and bmughl !u1u:tr'L~u, [Ira fiunrshmsnf wvll n. Iveghyvme Such a sanrsncn may also data: m parimufiar mmma! Imm cammrmng . mm agsm olmduce mm m (um Main 5 cnmmal 1» an honest Me me warm rntsresl rs mesa semen, and ms; served, «I the oflander rs nama to mm Vrom cnmmal ways to honest nnnw Our nw do" not. syn mivs:LCxEu!mvwMVxomv

Tika 2.6.0 & Pytesseract-0.3.10

PA-24NCvC-1062-11/2022

PEMOHON 1. ) NG TEE SO 2. ) SEOW BOON KOK 3. ) SAW CHANG HENG 4. ) LEE JOO PING PENCELAH LIM BOON LIN

- This Court had granted an Order ex-parte previously on 5th December 2022 declaring the four Applicants as trustees of seven properties of a Han Chiang High School Scholarship Fund pursuant to the Declaration of Trust dated 25th November 1993 as well as a Deed of Appointment of new trustees dated 26th January 2022 and that the trust properties be vested in the name of the Applicants in accordance with the Deed of Appointment of new trustees dated 26th January 2022.- Enclosure 6 - Notice of Application by the proposed intervener to intervene and to set aside the said ex-parte Order.- Issues:• Whether the Court is functus officio once it granted the ex-parte Court Order on 5th December 2022 and whether the proposed intervener has the locus standi; • Even if the proposed intervener has locus standi and the Court not functus officio, whether the ex-parte Court Order obtained on 5th December 2022 ought to be set aside in these proceedings.- The Court finds that it is not necessarily functus officio and may still proceed to consider whether there are merits to set aside the said Court Order if warranted. - The Court also finds that the proposed intervener has the necessary locus standi to intervene in this case as the net effect of the ex-parte Order was to effectively displace the proposed intervener as a trustee in the said trust lands.- However, the Court is not prepared/unable to set aside the said ex-parte Order on the basis of the affidavit evidence/materials placed before the Court and without the previous trustees being parties (as they were the ones who had appointed the Applicants as trustees vide Deed of Appointment of new trustees which was the basis of the Court making the ex-parte Order). - The proposed intervener may however commence fresh proceedings against the previous trustees and the Applicants who signed the Deed of Appointment of new trustees (or anyone else he deems necessary) to seek a declaration on the invalidity of the same and to consequentially seek an order to set aside the ex-parte Order dated 5th December 2022 in those proceedings.- Enclosure 6 is thus dismissed with costs.

21/11/2023

YA Dato' Anand Ponnudurai

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21/11/2023 20:22:43 PA-24NCvC-1062-11/2022 Kand. 30 S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N AaGLCIfBUyH6BxGEZN1/Q **Note : Serial number will be used to verify the originality of this document via eFILING portal pA—2mcvc—1ns2—11/2022 Kand. 30 21/mzmz - DALAM MAHKAMAH TINGGI IMLAVA DI Puuu PINANG SAMAN FEMIJLA No. PA-zmcvc-1on2-11/2022 Dalam perkara mengenaw sualu Deklarasr Nnanah benankh 25-11-1993 Dan Da\am perkaru mangenai sualu Deed nl Appoinlmern av New Trustees banankh 25014022 Dan Dalam perkata mengenal salu Amanah yang auxenan sebagau HAN CHIANG HIGH SCHOOL SCHOLARSHIP FUND dan Hananah-Hananah dalam Jadua\ Tanah yang dulamplrkan Dan Dalam parkara mengenai Seksyen 4o.45.«7 dsn 45 Am Famogzng Amanah 1949 (Anna may Dan Dalam perkara mengenai Seksyen 41,41 dan 53 Akin spesmx Rem1s5c(ma137) Dan Da\am parkara mengenal Seksyen M7, 420 Kanun Tanah Negara 1965 (Akla 325) Dan Dalam perksra mengenai Aluran 7, 15, 25 dan 92 Kaadah I3, Kaedah-Kzedah Mahkamah 2012 sw Aamcwauynaaxszzmrn me 1 Mn um smm ...m.mm be used m mm .. mmuny mm: dun-mm VI] muNG pm Dan 1 NG TEE soo mo. K/P 430905015443) 2 ssow soon KOK (NO. KIP: same-on 5755) :4. SAW CHANG HENG (NO KIF. 561023-fl& 5597) A. LEE J00 PING (NO K/P’ 550827-07-5665) PEMOHON-PEMOHON DAN UM BOON LIN (N0. K/P'54082H)9—5D17| (sebagai Pengerusi Jawavankuasa bagw ‘HAN CHIANG HIGH SCHOOL SCHOLARSHIP FUND‘ din/alau pemegang amanah yang dilanlik sqak 29.124993 bag! ‘HAN CHJANG HIGH SCHOOL SCHOLARSHIP FUND‘) BAKAL PENCELAH GROUNDS or JUDGMENT mroaucuon [1] The com had granted an appnum by the Apphcams harm on an awaits bass and had made cenaln Orders and asclananans on sw Aamcwauynaaxszzmrn u... 2 AI in mm smm ...m.mm be used m van; .. mmmy mm: dun-mm VIZ mum puns! .1. The pmposod Inlervensv failed. remea and neglecled In nerne Dr challenge lhe very sumed lmnslsrurs/previously revislenid land rrusvees (Dale Oo Jam Tea and Dale veon man one) aesprre wing in Ims apphcalmn as set aside the transferlcoun Order dated 5“ December 2022‘ manner was Endosure 5 even served on DaloOo.loo< Tee and Date Yeah Muh cnav. The fiilule to name or serve en me Iransfemvs causes Enclosure s to be a nullity even « rne proposed intewener Is allmrrsd In Intervene, e. The can Order was ragulany manned and more Is no allegallon afl fraud or ruegamy mused by the proposed vnlarvener nor any rssue ov wank nnunsdicnon [24] Having me benefited reearng are aflidavns and submissions of mm Dames, me two main grounds wmch reqmre ruarcvan delermmalrun are as tame: a. wnemer me Court Vs Iunclus more onte vl granled me ax-pans Court Order on 5' Dseember 2n22 and whelhu the proposed mcervener has me too»: Mandi oi Ihe proposed rncarvaner, and 1:. Even r! the pmpused inlervenev has /nous sIam11 and me Conn not Iwrcme omclo, whmhar Due wpene Cnurl Order obumeu an 5' Deoemzrer 2022 augm Ia be so! aside we Endnsum 6. W Aamcwauyfiaaxszzmln Page :1 er 1: ‘Nate s.n.r n-nhnrwm r. used m van; me nrimnnuly enn. dun-mm VIZ mum rm AnIluiIIDocising Flu; Iuu wn-mar Ihu cum I: Iuncm omcio one. It gr--I-d lhn Ix-gum coug am: an s"- Dun:-mblr nu ma wvmn-r gm grogona Inhrvouuv nu ma locus gflrldluflhn grogoud Iggmnnr Fun u [25] Yhe Apphrzanls in opposing ems appllcallon unaei Oldnr 15 ml: s ohho Ruln ofCaun 2n12 wnland max me com is Iunclus onicio once i| gr'arI|ed me ax-puns com onsei on 5' Deoembar 2022‘ To Inns and, me Appiicnnzs rely on the locus ciassicus case oi Hung Loom: Bank sna (lormorly known u Hung Loony Flruncu Bhd) v Stanhorn Sdn EM and tumor nppuin [2005] 2 ram 52: where Ihe Feaeiai coun new as loIIamvs' "[53] wnaveonclusians can be drawn horn ms pmwsians MO 15 i 6 oi the RHC and me cases discussed above? I inink, my sis as Ioiiows: [541 i=im, an nppwesiion 10 set aside an own for 30/9 by an sxisling puny la the pmcesding may [as made below the final oidei is pufeclsd, alherwiss (Ive judge is nincius ofllcio [55] secandiy, an applicaborl for /savs Io intervene in arde: to sei aside an orde: fa sale by a pan, no! a/ready a penny to the proceedings mus! be made Linda! 0 15 r 5 0/ me RHC. The appiieanon may be made at any stage of me plocsadmgs meaning asraie iuagineni, omsiwise me proceedings have in A:GLcwaLiymxaxsEzmin me 11 av u we Sum! n-nhnrwm be used m van; .. mn.u.y MIME mmn wa mum puns! concluded and them 1: no buyer a prveeedmg In exmance my me party to /Ivle/vane m The judgs has also became lunclus ammo Even men, the app/icatran must be made pvompfly Dniar 15 n a of my RHC appoes In all civil pmcsedmgs whether commenced by a writ motion or summons etc [551 Tlvrdly, an appocmn for )9-ave ta Intervene Is supported by an afidawt In other wolds. /I! won an appllculmn, the mags merely dacrdas on slfidswt swdsncs, wneznar or not leave should be granled Ag mg; gun; Q1 iuggl should not mlki -I ddflnltt flndlgg gt flgfi wjigh l§ urlvislgod by 015 I 6 ol tho RNC I/lll Ind cln Dill! bl Inldfl lllor Ill ovldonco has bun gggucid In [ill will whleh wlll Iollow tllbtcgllflnl [. [51] Fomwy, anyparty, wnezner a pany in the angmal pmcaedmg oi nol, who wants to cha//enye we order for sale, or lnr that matter, any/udgmenl, omel man a ueraumuugmenz or whats 1: 5 specifics//y pmvrded for rn the ru/es, may any do so by filly a {rush sale 1531 Fillh/y, wl-me ms principles lard dawn in Fogsng Mmmg as to exsmse ofdrscrelron are appncabls, all the mquimmants of o 15. E(2)mus1 be smrsfiad " [23] It IS me Appncanxs‘ lunher oonlermon Ihal bearing m mmd me substance cl me aHegaImns rawsed by the proposed vnrewenu IN Aamcwauyfiaaxszzmln rue u at u -m smm n-nhnrwm be used m yam .. nrimruflly mm: dun-mm VIZ mum puns! nerern, mere snouio be a lresrr sciiun cnmmenoed to sei aside me sai exparie Omar. [271 Hvwsver, iearned copneei forms pmposed inlervenev nae roireo an savaml cases which appear to have diluted somewhat the above sieprrorn principle on mnenrs omcro ano rroio inai me sarne does not apply and that «no Conn rerains an inherent jurisdiction to se| aside any ex—pane oroer wnron Is a nulhw by reason oi a breach of naiurai iuslice. [see me cases oi Loo Clui song v Magnum Cornoution consoniunr Sdn Bhd (20151 1 LNS 24:; In ne: uerorrry securixies Sun and arm Anor[2l219] 1 LNS1045, and Dlxon Khoo soon no. v Koh Jiair Chlw [ma] MLJU 14411. [231 Having read me above case: med by iearned couneei ior ine pmpcssd inrervener, peennp in mind man we proposed Inlervener was nor sawed wiin me onginenng summons arm nor given me oppormnriy In no nesro In me said ongrnaung Summons, it is arguapie (ha| ino Courl is non neoeseaniy funclus overs and may sim proooeo Io mnsidav wneiher mere are merits in set aside rne seio coon Ordev iiwarraniea. L n r [29] in Iuspaci of me propoeeo inrervenore ioeus sland Appircanir nonlarmon that me proped rnoervener acnnp alone. be n as me cnerrrnan onne um oornnnnoe or as me lvustea mine and Irusl lacks iocns slandi in repreeeniing me said (rust peoraiiywnen the posirion nnd views 0101! other lruslees were not disdosed nor made known In any evenr, Iha Applicanla also challenge Ihs IN Aamcwauyuaaxszzmln r... :4 will we s.n.r ...n.rvn re used m van; me nflginniily enn. dun-mm wa .nene wnxi posrtion atcnstrntan ofthe proposed intervenerwhtdtthe proposed trttervener contends that ne netd since 1997 wtncn the Apphcanls contend VS a dtrect cumravenltcn 01 Rule 5 M the Rates and Regulations dune HcHsst=wrnpn allwsa hmitedduraltan frtrvfftw at a Chatrman [an] In addttm KM Aupttcants stse eentend thatlhe proposed tntervener who ts neither the regtslered or beneficial miner L‘/f the trust pmperltes nor tne regtstered trustee of the sen: lrus| ptuuems does not have any InIyes1 nor rtghts in rem in the said lmsl PNDEHAGS to seek revocation or registralton in the names at me Apphcants as trustees. tt rs runner pointed out that attnpugn me pmpased rntervensratteges that he was appctmsd in 1993. he has not sought a declaration an the validtty oi ms spppirrtrnent and nettner has na been regrstared as s registered trustee. In any event, trus taaue at whether at not the proposed tnlewener vs a trustee appears to be a mrtlesled tact wtnen t esnnet deade tmvugh tne atndavie atone. [31] on true pontmry, the proposed tnrarvanarponremts that M has (ha mtcassaty locus stand; as not only has he been a trustee stnee tests. but trust ne nas been artectad by the ex-parts court order dated 5'" December 2022 [32] In my mnstdered vtew, havmg ponstdered the fact that the documents reveal that the proposed intervener was appointed as El new trustee vtda a Deed oi Appointment of new trustees dated 29“ December 1995, tt ts arguable mat rte has the neossary locus standi as the net eftect onhe sx«pans Order dated 5'" December 2022 ts to etvectivery dtsptaoetne proposed trttervener as a trustee. IN A:GLcwEuyHt!BxGEzNtID rage ts MM -use s.n.t n-rthnrwm re used m van; me nflgtrtnflly sums dun-rtnrrt n. .nuns Wm [33] Farmer, as gleaned Irdnr me afidavils and me ooniernporanepua documentary evidence before me, pursuant io ine establishment ai the HCHSSF, the working eornrninee was sat up to manage me same and me pmposed rniervener IS me pnseni Chaiiman at me said oprnmmaa. wmisi me Appiicanrs guesiidn nis current sianding as the Chairman of me said ponrmrnee, I am unable at this stage to asoerlairi me (me posmon merely on me strength oi anidavws. [34] As sucn, peiare I go any iunner, I win al this sage sraie that r am inclined rp allnrw the proposed rniervener Io intervene as prayed ipr WI prayer 1 oi Enclosure 6 Segglld Issue: Even filhe grogosed Inmrvonur hll locus sbndiand are ceug ngj nrrrgggs oficia whether rm nrflm courr Ordur eeraineg gn am ggmgg 21122 oghl to be an map via Enclosun § r351 Nprwnnsrandrng rrre lacl mat lhe proposed i Iervensr may have are rpcus srandr and are com nor necessarily Iuricfus p/acid as discussed arms, that is nor me and or me mllw. The Courl has In now consider whelher rrre ax—parla order grenred dated 5'" nadsrnpar 2022 is a NANNY as contended by me pmposrsd inlervenar. To recap‘ ine Applicants on me prner nand dpnrend that the said order has peen regrneriy obiained and cannor be sel aside and rnar in any avanr, rnis is nor me proper rprprn hm mar ina proposed intervener shouid earnrnande coliaieml proceedings or a fresh Sim IN Aamcivauytiaaxszzmin has 15 will -we semi nnvihnrwm re used M van; was nrigiruiily MIN: dun-vinrrl VIZ ariurm wnxi [36] In my view, me contention: oi the Appiicanrs are with merit in max me said ex-pane Order ought nai is be sei aside via Enclosure 5 based on the iniirming reasons: [37] misery, it is beyond pemdvenlure that me crux at me issue and/or wmplainl a1 me proposed imervenet is that Ihe Deed of Appointment or new lruslees dated 25*" January 2022 IS null and invalid In this regard, [[13 proposed inlervanersubmivs max D810 00 J00! Tee and Dam Yeah Moh Cllai had misrepresented when they aeciarea Ihal may were me any two surviving trustees ei me dale cube sen Deed cfAppoin|men| when in [am them were seven. The further Issues raised by we proposed inienienei in suppon :3! me contention that [he appomimeni M the Apphcanls ls invalid are as lalions: e. we ieeue oi me appclnlmenl 01 me Apphaanls as me ion: (4) new Iruslses being a nullity, invuia and irrngullr as me Appticanis are no: eenimmee member: oi me HCHSSF as required by me mes and Reguiamne enne HCHSSF dated 30" April 1993 men requires imeieee In be mmininee members: b, the inwnsislancies in the dues oi resignation by Dam on Joni Tee and Dam Yeah Mnh Chev ax lmslaes in the Deed af Appbinunem oi new irusieee «men 26'‘ January 2022 which IS inflamed in the police reporl dalsd12"JarIuary 2022 byTen Sri Dam sen Tm Kak Ping and the Deed ouppoinbneni af new Imsteas dated 26'” Jlnuary 2022: IN Aamcivauyfiasxszzwiln hue n cl u we s.n.i ...n.mm be used m van; ms mn.u.y MIN: dun-mm n. nFiuNG em a. me Durvonsd iener of resrgnrmerr or Ooi Tiang Krmn dated 25“ December 2021 as e irusiee rs irregularnr-efieciive as it was aedresaed in Mn trustees, Dalo Do Jooi Tee and Dale veoh Mnh Chai and not me corrimmee oi HCHSSF; a me regrslrahon of me rour new rrusrees In me documents of me was not oonciudsd by way 0! Form NA mu by virlue 01 this ax—pana Cmm Order dalad 5* December 2022 and merelore IITBQIAIEL e. we reirrrrrg irusiaee. one On Jan: Tee and Dam Vaoh Moh Chai were Iegalry incompereni |o annoml new irusieee and renire srmurraneousry. Aprxirrimern of «our new irueoees ougm to have been done flrst and not sirrruiianeousiy is was done In mrs use; and 7. me Applicants are I101 obtain me cunseru 01 me Niamey General baiore omaimrrg a couri order cormrming weir eppairmnerri as required by Suction s at me eevemmurc Procnodlngl Am us: as me scholarship runes are a public cnariiame Ims| {:3} ma Caurl was irrererare urged by me pmpoled rrriarvemr In view we need 01 Appointment 0! new lruslees dialed 26* January 2022 with suspicion arm in reieci are same. [391 From me above, ri can be surmised Ihal me crux at me prepasee iruerveners enmnlainl is me veireiry or vlhevwise 0! me Deed of Appenmreni or new trustees dated 26"‘ January 2022 and In «ms rw A:GLCWEUyH£BxGEzN1ID munmu -rue s.r.i Iuvihnrwm re used m mm ms nrwirraflly MIN: dun-mm VI] aFiuNG WM! regard, in my view, trie roles or «tie said two previous trustees, narnely new op Joel Tee and Dam veori Mon cnai are critical. Whilst the proposed inieryener nee taken iiinbrage over the lactttiat trie two were not Applicants as well, it is clenrto nie triat most oune issues raised rierein cannot be decided witrioiit hearing their side of «tie story to demie any o1 trie above issues andlor ine validity or olhelwlse the Deed cf Appeinnnenit ol new trustees dated 26"‘ January 2022 [An] In my VIEW, these issues raised new by ine proposed intenierrer oertainiy iannot be deemed merafy on atridavai evldenue and wittiotn me input of ttie said nato oo Jool Tea and Data veoti Mon cnei. l agree wmi learned Counsel lorthe Appllcanls that trie crisllenge on me app01n|men|ofIhe Applicants cannot be detennined uirougn an inienreniion application as in Enolosiire s. Tne ceiin is only able to set aside me said ex—parIs order dated 5“ laeeeintier 2022 if il can conclude based on me euidenoe oetore it triat tna said need of Appolntmenl 09 new trustees dated 26"’ January 2022 IS a nullity. wnri respeono learned counsel iorrrie proposed inteniener, witriom irie benefit of a tun Inal and/or wntioui nearing irie version lroin tne said Dan) oo Jool Tea and mild vedri Mon crioi. triis coiin is oenainty not prepared a| is slage to hold met me said need in Appointment 0! new Irusleu daled 25'" January 2022 Is a nuuity. [A1] I am 0! the turirier lirm view that the appropriate mode to challenge trie validity or tne Deed of Appotntrnent wf new Ilusleers dated 26“ January 2022 and by sxvlansian thereto, trie ex-pane Order dated 5' December 2022 on lhe eppoirnmerit 0‘ the Applicants is for vie proposed inurvener lo file a fresh suit against Ihe previous tnietees in A:GLCliEL1yH£BxGEzN1ID Fix! 1! M u ‘Nab! s.n.i n-vlhnrwlll be used M van; ii. nflglnnllly sun. dun-mm via aFluNG wml andlor Ihe Aeelicanls who executed lne need or Aopoininienl in new iruslees daled 26"‘ January 2022 (or anyone else he deems neoessary) lo seek ii declareiiori an |he invalidiry or me Deed oi Appdininienl di new lruslaes dated 26"’ January 2022 and if need be, e declarailan as |o wria lne lawful lnisiees are. In sueri a euil, lne proposed inlervener may also irien rely on Badladdlirs principles or any dlrier law to sei aside irie said ex»parIe coim order daled 5- Deeenileer 2322 [see me Federal couri case 01 Badiaddin ain Mohilrllmld Mlhidill Rosi in Mahklln ai Anor y. Arab Malays anee aerliad A Anor [1993] l MLRA183 al pp 184. 20 . 199311 ML] :93; [1993] zcu 15; (199511 AMR saw] Having reecrred Ihis oonolusronr I will nel rule on any of llie rrienis oi irie issues mised as iriey slioiild he venillaled iully in any suoli new suii riled [421 || ie also peninenl la noie inai in se lar as me proposed inlerveners applicaiion lo selaslde lrie expand order dialed 5' neeeriioarzozz rierein. ilie sariie ls noi balng eriallenged on grdunde oi lllegaliry, lraud. iii iiiai ine Court riad no lunsdiciidn lo graniine reliefs eeugril in irie originaiing surrinrene Tne only gieund pm form In eei eslde Ihe sarno in ielaisdn id irie vnhdrty of lrie Ippolrllmarll of me Appllclnu Vlfle lrie Deed olappdinirrieni elnew irueleee dalad 22- January 2:122. in my view. [he eore diepuie remains a challenge lo irieir Ippoinlmenl an 26"‘ January 2u22 and eanriol render irie said sxrplrle order made being one illegally ahlained or null and void‘ Any mnsidara|ion dime merit oflhs epeoiniinenland/orllie Vihdlly oi llie said Dead o1AppolnlmaM of new irueleee deied 26°‘ January 2u22 will have In be considered in a separale suil lo be filed IN A:GLCWELlyH£BxGEzNilD rage no out None s.n.i In-vlhnrwfll be used m van; me nflglrullly Mimi dun-mm Va nFluNG wml 5' December 2022 The pmpased lmarvener has lnrougn Enclosure 6 applied lo lnlervarls arm in he added as a panylolnese proceedings Dursuant 1:: Omar 15 ml! c of mo Rulu of calm 2012 and lor an order lnal me said ex-Pam: Cclurl orosr dated 5"- Decenioer 2022 be set aside. [21 Having heard leamsd counsels oral submissions wiln one and of lneir wrmen submissions‘ l dismissed Enclosure 6 mm wsls. I will new sex cul me background lacis. me panics’ respecnve oonlenllons/submissions and my reasons for having dismissed inc proposed lniarveners applrcalion ansr navrng anaryseo me evidence and the applicable law In relanon to me issues al hand. kgroulld FIDLI [3] The Nari c Iang High scnool in Jalan Lim Lean Teng‘ 11600 Perlang was esmlisneo WI 1952 on me land known as Lot 2755. Hakmlllk 5741, Secllorl 6 seorgecown. Nonn Eas1 Dlslriu. Penang (halelnsflar rsrenaa lo as me ‘sad trusl land‘). [A] The salo mist land was onglnally purcnassa by me pmposed lnlervenefs lava grandlamer, Llnl Lean Teng, a prnlanmmplsl III 1940 lnrougn ms proposed inlarveners uncle, me lals Lim Therlg Hln (“me Samar‘) [5] on ma da|a oi ouronuso at me said lnm lano. me senior nao uxeculad an lndalmlra (Trust Deed) dated 2w July 1945 whereby the senior conveyed the saw lrusl land to Plimsoll Ind 13 mllar trustees lo nolo an [rust (or me establishment oi a Chinese sonool IN Aamcllauymlaxszzulln ms 3 :11! None s.n.i n-vlhnrwlll be used M mm r.. nrwlrullly sun. dun-mm VI] .nunc ma [43] finally, llie proposed lrllawsner oonlends lliei lrie said expane oodri order daled 5!" December 2022 eiigrii lo be sel aside on ilie oasis lrial lliere was irialerial rloruiisclasure el lacls in that an application was made «or me replacenieriii or lines despiie ine Applicants’ solieilor being inlonned via lelier daied 14'" January 2022 try me proposed inleivenere solicitors 0131 me original lines were in their ws1ody. [441 in my VIEW‘ wriilsl iriere appears lp be such a leilar seni ie the Applicani: seliollors and whIISl mere was indeed a consequential order lor replaoeineni nf iiiles wnion was alldwed. me mix ol me applicaliori in Enddsure 1 was lor a deoiaralinn and remgniiion cl lrie appoinirneni oi ine Appllcarils iride me need oi Appoinirnenl of new inislees el 25' January 2022 and aimeequenlly lrie vesiing at irie Imsl properties onie iria Applicariia as me recognized new inialees lei irie said lrusi. [45] Having oansldeved Ihs (31:15 and clrcumslarreevs 07 the present caller I am more VIEW Ihal eased an ilie arridawi evidenoe befiure me I cannei eoriolude iiiai irie foul Appllraxnls nad knowledge dl Ihe ixeyioiie hislory oi irie said lrusi and scales el lmslees and iienoe nm he cmulderad guilty or any rneierial normlsciosura. in my view, all iriey did was move iriis couri on reliallue an die Deed of Aepoirilrneni M new iriisiees daied 2e'- January 2a22 by lire Iwo ieinairiing imsiaee naniely Data 00 Joel Tee and Data veon Men chai to seek lrie declaration sodgril [46] iii any eirani, qiiiia apan ireni ilie fact iriai siion order nas nei been eiileroad or exemled in inai me Appiioanis have no: opiained replaoemenit miss, I find mac RIB nan-disclosure 07 such lane! was in A:GLCWEUyHEBxGEzN1lD 91:: xi MIA Wain s.i.i In-vlhnrvilll be flied m van; me nflglrinllly eiiii. dun-vlnril via nFluNG wml not imponanl D7 mammal In the lorrrialien Mme Order I granted. [559 ine High own case oi Emporium Jay: (among) Sin and (In I q dafion) v. Emporium Jaya (Jnrantm) sun Bhd mini] 4 MLRH 517; [2002] I mu «:2; mm 3 cu In; [znon 4 AMR was]. Oonclul on [47] As such, based on aii matters. and upon a carelul and iumciuus consideration at me evidence oeiae me and me submission at teamed cuunsei, whilst ma court may no: he /unclux ammo and/or ins propusad iniawenei nae ine necessary locus slsndl In iniswene, hearing "I mind inai me pmposeu iniervener in essenoe anuiur In simsianae seeks In cnaiienge lha apgoinlmsfll of Appiiaans via me Does! oi Appcxnimeni ai new Iruslees dated 25- January 2022 which they uaniend in invaiia, I Im unable to sei asida me said ax-pane Older dalad 5° Decemher 2022 an lhe malarial piaoed unions me and Wilhuul me previous immea bclng panias [as] Funhev, in my men, me proposed Inlervariar is nmwllhnul reouuree In that no may mmmanne crash proceedings againsi me previous imsieae and me Aapiicanis who siuriod me Dean n1AppoinimenI :71 new imsiees denied 26" January 2022 (or anyone eise ne deems neousary) to seek a declurutinri on me irivalidlly M the Deed oi Appoinimeni of new lrusioes daled 29" January 2022 and lo oorissquenlially seek an order in am asidn ms ex—pane Ovderdaled 5!" December 2022 in A:GLciiELlyHlBxGEzN1ID vane n all! ma s.n.i n-vihnrwm as flied m van; .. nflginniily sun. m.n.n n. arium wmi [49] As such, Endosure a is dxsvmssed with com o1RM4,000 0010 be paid by the proposed inlewener to me Apphcanls. sumac: In awocamr. Dale 21* Ncvamber 202: AIIAND FONNUDURAI Judas; High Calm Gsorgslomn Pulau Pinang Conn I n Mr. Dug Vu Shin mgemar mm Mr. Lim Waoi wng and Mr Hee Ving Peng «mm The Chambers alVu sh.“ Ong Iv the Apgncams. Mr Jeyasingam salasingam and Ms KAran}ee1 Kaur (mm Messrs. Ghazi & Lim {or me Druposed imervener. cans rvflrrod to: Badraddm Bin Mohammad Mshidm Rosli Bm Momdm & Anar v. Arab Ma/aysia Finance Bemad A Anor[199.9j 1 MLRA 133 at pp 154, 202, [V995] I ML./ 393' (199812 cu 75, [1996] 1 AMR 90.9 sw Aamcwauynaaxszzmrn ha: 2: at H mm smm ...m.mm be used m mm .. mmuny mm: dun-mm VI] muNG pm Dixon Khoa Soon Hoe V Knh Jrak Chsw [2015] MLJU 1441 Empnrium ./aya (semung; Sdn 311.1 (m nquntanen; v Emporium Jays (leranluu Sdn 51141290114 MLRH 517; [21102] 1 MLJ 152, 1200213 CL./ 10,- 12001] 4 AM»? 4559 Hong Laong Bank BM (/ormel/y known as Hang Lsang Fmancs am) .1 Srsghom Sdn arm and omsr 5179661512008] 2 MLJ 622 /n Re: Mercury sscunnss Sdn BM and Anor [2019] 1 ms 1045 Lee Chafseng vMa§Inum Comoratian Cansomum Sdn 31141201511 LNS 243 Lgglslatlonh Mama to Rules ufcam 2012, Order 15m: 5 Govsmmsn! Hocssdlngs Act 1956, Section 9 sw A:GLcwEuyH£BxGEzN1ln me n ms .11.; s.n.1...m.m111.. .1‘... m mm 1.. mm-y mm: dun-mm VI] muNG Wm lorlhe purposes of educafinn and such whoa! us In be known as lhe “Han cmang School’ [51 The Imslees managed me High School [mm 1952 until 1955 mmugh a Eoard or Gm/emuls when the management was hnndsd over to a company nmmpomted m 1955 by guarantee known as Penang Han Chlang Asmaxao Chmese Schuuls Msodatmn (neranauu refened to as “Pl-OCACSA“), [7] The pmp0ssdIn|arvarIercan|1afId5(|1I|lh9 Hun Chinng Schularsmp Fund [the sumac! mnllevohhase pmoasamgs) was esmbfished m 1002 as - |ms| «mm a common ov Malayan new (Mm 200,000 00 by Lmu Lean Teng. lhe grandfather of ma pmpoaed Inlarvener m 1960 as swam which wns mmauy In: lha davelapmenl or me High School. [31 The donation was later used by me cmsoaes of me Hugh Smock ea set up the Scholarship Fund for the needy s1uden1s 01‘ me High School The proposed mtelvener mnlends that 5| is a public chamablelrusl [9] Between 1964 and I965, the oommlnee purchased six propemsa Vol sn5,nou.m arm a swarm pmpany «or RM370,D00 00 ‘VI 1995 (mm me Iund as loHmIs' a Lot I148, Section 4, Bmturwonh‘ Pmvmoa weuesley Norm Penang m Gram 30414 with premises M14165, Jalan Kampong Banggan‘ 12200 Buttalwodh, Psnanu. IN Aamcwauymsaxszzmln um um more Snr1n\:unhnrwH\I>e 0;... m van; ..a mww mm; dun-mm wa mum am la Lot 355. seem 6,Ge0r9eli1wn, North East Districl, Penning in Gran!‘ 25024 wim premises No.18, Jalsn Lim Lean Teng, nsoo Penany: c. Lo| ass, Secllml 5, Georgelmvn, Nomi East Dianna, Penang in sianr 2502:; mm premises No.26, Jaian Lim Lean Tang 1 I600 Penang. a L411 714, Ssclion as Gsorgmbwm Noah Easi Dis|ncl, Panang In Grarir mane wrlh pmmisas No.46‘ Jaian Lllll Lean Tang‘ 11600 Psnarig: e Lot 556‘ section 6. Georgetown, Nomi East Dis1ricl, Penang in Gram 25025 wim premises No.20, Jaian Lim Lean Tang‘ 11600 Penang, V. Lot 55?‘ section 6. Geurgemwn, North EastDIs1ricl, Penang with premises No 22, Jalan Llm Lean rang, iiaoo Penang: and g Loi sum, Mukvll 1, Pmvmce waiisalay Osnlml, Psnang in com MukIm:l01wiVJ'i premises Na. 17‘ Jalan Kehssa Emu. Tainan Kaiisa Emu. 13700 Prai‘ Psnang. [10] Pursuant to me esubiishment at me Han chiang High School Scholarship Fund (hareinanar revened in as 'HcHssF'), |he working committee was set up to manage me same and ma proposed Interveriev is the present chairman nurse said wmmiuee IN Aamcwauykaaxszzniln ran: 5 MIA -ma s.n.i ...m.mm be used m van; .. nflgirinflly MIN: dun-mm VIZ nF\uNG puns! [111 the Rules and Regulaltons of HCHSSF whlch regulates Ihe management or the same was lormalisec ch 30*" Aorll 1993 and signed by the then two survlvlng members or the mmmlttee whn were also trustees or the stx pmpemes namely the late P'ng Seok Ch'nia and the late Johnson Lam [12] The rematnirlg members olthe Board or Directors oltne Hlgh school are appmnled by the exretlng members or the eommmee in the event or any varenaes. [13] up ml 25'“ November 1993. saleclod mmmi||aa member: or HCHSSF had been annotated by the oommrtleo as trustees tor the six pmperliazr and had also decldad to Mgtsxer them as huslaas tn the documanls ensue [14] The trusrea of the Sald prooemes M HCHSSF were also members ol the working comminee [15] The proposed lmervener norllends met PHCACSA has no aulhomy, annual or rlgrrt or management or HCHSSF rncluorng me slavsn propemes wmch lie whh the worklng oommlltee. [16] From the evlflanoe adduced I399 Exmbn LBL-5). there was a Declaratlon onrust dated 25'” November 1993 whereby there were to be16 lrustees ol the HCHSSE [I7] Thereafier, Vide Exhlbil LEL£t ll ls apparent lhal there was an executed Deed or Apporntnrent or new truslees cetea 2w December mawhereby l3suIvivlng trustees had apoarnrea 5 new trustees one or wmch ls the proposed inrervener he ' IN Aamcllauymsaxszzmln Pale 5 all! None s.n.r ...n.mrr be used m van; me bflglnnllly sun. mmn VIZ .nune wml [IE] Thereaflev, in Enclosure 1 vmch was filed herein an 2"‘ Novcmber 2022 Ihelnur Applicants sougm the rommng orders a. A declaralion mm they are In be named as the {our new trustees or the seven properties a! the sonolarsnup Fund pursuant to ma Declaration M Trust aatoa 25* November 1993 as well as a Deed nlAppo<nKmenloVnew Imsmes damn 25" January 2022. h. Trm ms Imst propemgs be ves|sd in me name of ms new (ruslees m accordance wnn une Deed :1! Appointment at new Iruslees dated 26'” Janulry 2022; and c. Thu Aponcams be nuawed |n apply for ramaoemenl amiss. [191 In auppon owns apmoanon, it was averved byalfidavlllhsl me said trust had only two survivmg rrustea name\y one uaco oo .1004 Tee as well as one Dalo vaon Mon cnai and ma: these two surviving Irusines had axeculsd Ina Deed ul Appomunem of new lmslaes dated 25" January ZD22 appointing Illa Applicants as new lmstaes, In the amaavn m suppon ol ma appflcallon, mo Aapllcanls nan annaxed me ssm Deed o1 Apooimmenl (:1 now Imslees wmon nas been duly stamped oonfirmlng that Inare were only lwn smvwmg |ms|ees who was rehring and were appalnung lhe Appllcanls In lha slid document, whllll relevance was madalome 25'” Navember 1993 Declaration MTVIJSL no menuon was made about 01: (we new lmslees appointed an 29" Decamhav1BBG. yn Aamcwauynaaxszzmln Van 1 :0 u None sow n-nhnrwm be mad m van; .. nrimnnflly mm; mmn wa mum am [20] As me cause papers appeared to be in order, I rm granlsd war in terms of Endosure 1 on 5'" December 2022. [21] Lim Boon Lln, me proposed irirewener rm mes Enclnsure e la imervene and sex esiee me ex-parts Order grameu on 5'“ December 2022 as me Appiicams have since Ihe ex-pane Order Dean duly regisiered es Irus1ees on me said me am: as such also seeks an Omar me: me Applicants‘ Hams as uusiees on me seven uues of iris properties new by HCHSSF be deleted Th Frog ealrr eermrr enslsmm none [22] The crux or me pmposad mierveners wnlenhans/submissions IS as (aliens a He has me locus 519011! R) inierverre us he has an mieresi and/or IS dllscfly arrested by me ex-pens Ordei. u. The Court is not runczus omcia: c. The sx—pme order da\ed 5'“ December 2022 which declared me Agpiieerus as iour rrewrrusrees is nulh invalid and irreguisr as me Appiieeuis am not eemmmee members oflhe HCHSSF as required by Rule 7 or! me Runes ind Regulations of me HCHSSF cause so” April 1993 whereby mere srisii be a minimum of eleven (11) members :71 me eommmee er a maximum of Menlysone (21) members oflhe said committee. .1. There are mooflslslencles in me daies at resigriaiinri by Dam on Joe: Tee and Data veorr Mari crrai us imsiees in me Deed IN A:GLcwauyH£BxsEzm1n men all! Nuns smu I-vihnrwm be used M van; me mm.r.y mm. dun-mm VIZ nF\uNG Wm! of Appointment oi new trustees dated 26“ January 2022 which is reiiected in the poiieerapori dated 12"‘ January 2022 b'yTan Sri Dato sari ‘ran Kdk Pine and the need 111 Appoinlmenl or new trustees dated 26'” January 2022. e. The purported letter or resignation oi opi Tiang Ktiodn dated 25" December 2021 as trustee was irregular/irietlective as it was addressed to two trustees. Data on J00! Tea and Dam veon Mon ciiai and not the oonirnrttee oi HcHssF, l. The registration at itie tour new trustees on itie mice was not concluded oy way at Farm MA out by ue pt lhls ax—parle court order dated 5'" December 2022 and ttieroiere irregular. g The Applicants did not obtain trie consent at tne Attorney General oeiore obtaining a court Order confirming their appointrneni as required by section 0 of the Grwerriirient Proceedings Act 1950 as itie sctiaiarsiiip tunds are a public ctiantabie trust h. There was niatenai non-disclosure/no lull and lmrik diseiosure In ine said application Mien the Applicants‘ prayer ior auttiumy to apply tor repiaoement iitiee tor me seven prooenles oi ttie sctioieretiip Fund was made despite tne Appiicanis‘ solicitor being intonned VIE letter dated 14"- January 2022 that ttie titles were in itie ouetody ot the nropoeed iiiterveners solicitor II lne rnatenei time. iN A:GLCiiEUyH£BxGEzNilD mes and ‘Nate s.n.i In-vihnrwiii re used M me, o. nflgiriniily mi. dun-vinril 0.. nFit.ING we i That me pmpased mlarvsner being me Chairman :11 me sad carrirnmae augm lo hive been named as a newly and be served with ins onginsung Summons 1. The M0 relvringlmslees who appomledlhekpplicanls as new Imslees ought In have been named as pin: Appiscanis In ans Onglnallng Summons. nre gggloarm oonuntunnl/lubgg sslons 12:] on me oiner hand. the Applicanllr in opposing Enciasurs is may ocnlend that in: pmpassd imervaner rnusi sausiy that ha anghl lo be allowed in iriiarvene whim they submit mar he smuiu run he so allowed Sewnuly‘ mm W allowed to inlurvene, u rnusi saiisvy lhal the said Court Order dated 5* Dacember2D22 ougm In no salasioe WI me vary nme proceedings and NOT was a aoiimrui actton. In this rugurdr me Anni-unis submilas iaiious. 5 There is no ionger a ‘pmeoadIngs' in ms Origlnillng summons before mis com for me pmposed inlervener In inurvane under Ovdur 15 ml: a Man Rum o1Co1m 2012. :2. This court is fimcius oflicm upun delivering the Order var me onginanng Summons on 5'" December 2022 and me sax: Order being perieciad. c Tne pmpoura miervaner has gel no locus srandllo proceed with this present application aflher parsnrraiiy or as me sols Iruslse in me said xrusi. in Aamcwauyfiaaxszzniin rue In all! 'NnI2 s.n.i nnvihnrwm .. flied M van; .. nnginnuly sun. mmn VIZ nF\uNG Wm

Tika 2.6.0 & Pytesseract-0.3.10

BB-B52NCC-35-04/2023

PLAINTIF Pac Lease Berhad DEFENDAN 1. ) TITI KEMBANG KAYA SDN. BHD. 2. ) TAN SING LING 3. ) TAN KEE TAT

PENGHAKIMAN TERUS - PERJAJIAN SEWA BELI - ADAKAH MINING DUMP TRUCK TERMASUK DI BAWAH SEKSYEN 7 AKTA SEWA BELI 1967- ADAKAH NOTIS PENARIKAN TIDAK MENGIKUT AKTA - JENTERA YANG DIJUAL TIDAK MENGIKUT SPESIFIKASI

21/11/2023

Puan Sazlina binti Safie

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=11e0eacd-e145-4b09-a5c3-8847800d726e&Inline=true

Microsoft Word - AP-BB-B52NCC-35-04-2023-O.14 1 DALAM MAHKAMAH SESYEN PETALING JAYA DALAM NEGERI SELANGOR DARUL EHSAN WRIT SAMAN NO – BB-B52NCC-35-04/2023 ANTARA PAC LEASE BERHAD [COMPANY NO.: 199601014303 / 386653-K] [ABRAHAM OOI & PARTNERS] …PLAINTIF DAN 1. TITI KEMBANG KAYA SDN. BHD. [COMPANY NO.: 199701020141 / 435638-W] 2. TAN SING LING [IDENTITY CARD NO.: 580712015483] 3. TAN KEE TAT [IDENTITY CARD NO.: 851207145393] [EDWIN LIM & SUREN] …DEFENDAN-DEFENDAN ALASAN PENGHAKIMAN (RAYUAN INTERLOKUTORI) 21/11/2023 14:44:11 BB-B52NCC-35-04/2023 Kand. 27 S/N zergEUXhCUulw4hHgA1ybg **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 LATARBELAKANG KES Ini adalah rayuan Perayu/Perayu TITI KEMBANG KAYA SDN. BHD. [COMPANY NO.: 199701020141 / 435638-W], TAN SING LING [IDENTITY CARD NO.: 580712015483] dan TAN KEE TAT [IDENTITY CARD NO.: 851207145393] melalui Notis Rayuan di Lampiran 21 terhadap keputusan Mahkamah ini bertarikh 27/9/2023 bagi Lampiran 13 terhadap keputusan yang membenarkan penghakiman terus di bawah Aturan 14 (1) Kaedah-Kaedah Mahkamah 2012 yang memutuskan bahawa Defendan-Defendan hendaklah membayar kepada Plaintif wang sejumlah: (a) Jumlah sebanyak RM136,759.44 (Ringgit Malaysia: Seratus Tiga Puluh Enam Ribu Tujuh Ratus Lima Puluh Sembilan dan Sen Empat Puluh Empat Sahaja) setakat 6 April 2023 di bawah Perjanjian Sewa Beli bernombor KG193210026188 (dahulu dikenali sebagai KG130210026183 bertarikh 27 Oktober 2021) beserta faedah lewat ke atas wang sebanyak RM127,028.02 pada kadar 2.0% sebulan mulai dari 07 April 2023 sehingga penyelesaian penuh; (b) Jumlah tertunggak sebanyak RM123,446.28 (Ringgit Malaysia: Seratus Dua Puluh Tiga Ribu Empat Ratus Empat Puluh Enam dan Sen Dua Puluh Lapan Sahaja) setakat 06 April 2023 di bawah Perjanjian Sewa Beli bernombor KG193210026199 (dahulu dikenali S/N zergEUXhCUulw4hHgA1ybg **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 sebagai KG130210026194 bertarikh 27 Oktober 2021) beserta faedah lewat ke atas wang sebanyak RM114,591.32 pada kadar 2.0% sebulan mulai dari 07 April 2023 sehingga penyelesaian penuh; (c) Jumlah tertunggak sebanyak RM124,896.35 (Ringgit Malaysia: Seratus Dua Puluh Empat Ribu Lapan Ratus Sembilan Puluh Enam dan Sen Tiga Puluh Lima Sahaja) setakat 06 April 2023 di bawah Perjanjian Sewa Beli bernombor KG193210026205 (dahulu dikenali sebagai KG130210026209 bertarikh 27 Oktober 2021) beserta faedah lewat ke atas wang sebanyak RM114,846.14 pada kadar 2.0% sebulan mulai dari 07April 2023 sehingga penyelesaian penuh; (d) Jumlah tertunggak sebanyak RM129,884.53 (Ringgit Malaysia: Seratus Dua Puluh Sembilan Ribu Lapan Ratus Lapan Puluh Empat dan Sen Lima Puluh Tiga Sahaja) setakat 06 April 2023 di bawah Perjanjian Sewa Beli bernombor KG193210026215 (dahulu dikenali sebagai KG130210026219 bertarikh 27 Oktober 2021) beserta faedah lewat ke atas wang sebanyak RM120,628.34 pada kadar 2.0% sebulan mulai dari 07 April 2023 sehingga penyelesaian penuh; dan (e) Kos sebanyak RM2,543.00 (Ringgit Malaysia: Dua Puluh Lima Ratus Empat Puluh Tiga Sahaja) termasuk kos perbelanjaan S/N zergEUXhCUulw4hHgA1ybg **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 guaman dibayar oleh Defendan Pertama, Defendan Kedua dan Defendan Ketiga kepada Plaintif. ALASAN DAN DAPATAN MAHKAMAH [1] Mahkamah telah meneliti Notis Permohonan, Afidavit-afidavit, hujahan bertulis dan otoriti kedua-dua pihak. Melalui affidavit sokongan di Lampiran 14, alasan permohonan Plaintif adalah seperti berikut: 1) Melalui satu Surat Tawaran bertarikh 1/7/2021 (Surat Tawaran Tersebut), atas permohonan Defendan Pertama, Plaintif telah memberikan satu kemudahan Sewa Beli dengan kredit sewa tidak melebihi RM1,200,000.00 kepada Defendan Pertama untuk menampung kos pembelian peralatan-peralatan sebagaimana di eksibit “CLKY-1”. 2) Berikutan Surat Tawaran Tersebut, Plaintif telah menandatangani 4 perjanjian dengan Defendan Pertama (Perjanjian-Perjanjian Sewa Beli) sebagaimana dieksibit “CLKY-2”. S/N zergEUXhCUulw4hHgA1ybg **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 3) Sebagai balasan, Defendan Kedua dan Defendan Ketiga telah menandatangani satu Perjanjian Guarantee bertarikh 27/10/2021 sebagaimana dieksibit “CLKY-3”. 4) Defendan Pertama telah gagal mematuhi Perjanjian- Perjanjian Sewa Beli sebagaimana syarat di dalamnya. Plaintif telah mengeluarkan Notis Niat Untuk Mengambil Semula Hakmilik bertarikh 22/9/2022 menuntut tunggakan ansuran- ansuran dalam masa 14 hari yang telah disampaikan secara berasingan kepada Defendan Pertama, Defendan Kedua dan Defendan Ketiga sebagaimana di eksibit “CLKY-4”. 5) Defendan Pertama masih gagal, enggan dan/atau cuai membuat bayaran dan Plaintif telah cuba menarik balik peralatan-peralatan sewa beli tersebut melalui perintah Mahkamah bertarikh 2/12/2022 sebagaimana seksibit “CLKY- 5”. 6) Plaintif telah melalui peguamcara mengeluarkan notis tuntutan bertarikh 5/12/2022 kepada Defendan Pertama, Defendan Kedua dan Defendan Ketiga secara berasingan sebagaimana eksibit “CLKY-6”. 7) Pada 10/12/2022 dan 11/12/2022, Plaintif telah melalui ejen berjaya mengambil balik milikan peralatan-peralatan sewa beli S/N zergEUXhCUulw4hHgA1ybg **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 daripada Defendan Pertama mengikut Akta Sewa Beli 1967 sebagaimana eksibit “CLKY-7”. 8) Plaintif telah mengeluarkan notis-notis penebusan (Redemption Notice) bertarikh bertarikh 22/12/2022 dan diserahkan kepada Defendan Pertama, Defendan Kedua dan Defendan Ketiga secara berasingan sebagaimana eksibit “CLKY-8”. 9) Walaubagaimanapun, selepas tamat tempoh 14 hari dari tarikh serahan, Defendan-Defendan masih gagal, enggan dan/atau cuai memberikan maklumbalas dan Plaintif seterusnya telah menjual peralatan-peralatan sewa beli tersebut pada 3/3/2023 melalui tender yang tertinggi iaitu RM140,000.00 satu unit sebagaimana eksibit “CLKY-9”. 10) Setelah mengambilkira hasil jualan, Defendan-Defendan masih terhutang kepada Plaintif jumlah baki sebanyak RM507,371.39 setakat 14/3/2023 dan faedah lewat pada kadar 2% sebulan yang akan dikenakan ke atas RM477,093.82 mulai 15/3/2023 sehingga penyelesaian penuh sebagaimana Penyata Akuan dieksibit “CLKY-10”. 11) Plaintif telah melalui peguamcara mengeluarkan Notis Tuntutan ke-2 bertarikh 16/3/2023 yang diserahkan secara S/N zergEUXhCUulw4hHgA1ybg **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 berasingan kepada Defendan Pertama, Defendan kedua dan Defendan Ketiga sebagaimana dieksibit “CLKY-11”. 12) Defendan-Defendan masih enggan, cuai dan/atau gagal membuat bayaran. 13) Plaintif percaya Defendan-Defendan tiada pembelaan yang bona-fide dan bermerit dan pembelaan mereka langsung tidak mendedahkan sebarang isu untuk dibicarakan. [3] Defendan-Defendan telah memfailkan pembelaan dan affidavit jawapan yang mana antaranya menyatakan seperti berikut: 1) Defendan Pertama mengaku ada menandatangani Surat Tawaran dan Perjanjian-perjanjian Sewa Beli dengan Plaintif. 2) Selaras dan konsisten dengan terma-terma dan syarat Perjanjian-perjanjian Sewa Beli tersebut, persetujuan antara Plaintif dan Defendan Pertama adalah bagi tujuan sewa beli lori pembuangan lombong (Mining dump truck) yang tertakluk kepada terma-terma dan syarat yang dipersetujui kedua-dua pihak dan segala spesifikasi dan syarat-syarat sewa beli perlulah dipatuhi sebelum bayaran dilunaskan. 3) Segala pembayaran hanya boleh dilepaskan dengan syarat tersirat (implied terms) lori-lori tersebut yang dibekalkan wajib S/N zergEUXhCUulw4hHgA1ybg **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 mematuhi dan menepati dengan betul spesifikasi yang diminta oleh Defendan Pertama. 4) Pada semua masa material, Plaintif adalah berpengetahuan bahawa lori-lori tersebut adalah untuk projek-projek Defendan Pertama yang tertentu. 5) Lori-lori yang dibekalkan harus mematuhi spesifikasi dan mempunyai kualiti boleh dagang (merchantable quality) seperti yang dinyatakan dalam persetujuan tersebut dan/atau persetujuan lisan pihak-pihak. 6) Defendan Pertama mempunyai had masa tertentu untuk melengkapkan kerja-kerja bagi projek-projek tersebut. 7) Oleh kerana lori-lori dibekalkan tidak memenuhi spesifikasi yang diminta oleh Defendan Pertama dan/atau tidak mempunyai kualiti nilai dagang, kemajuan projek Defendan Pertama telah dilambatkan. Oleh itu, pembayaran tidak dapat diluluskan dan dilepaskan. 8) Ketidakpatuhan tersebut oleh Plaintif juga telah melanggar seksyen 7 Akta Sewa Beli 1967 dan Akta Pelindungan Pengguna 1999. S/N zergEUXhCUulw4hHgA1ybg **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 9) Defendan-Defendan tidak menafikan Perjanjian Gurantee oleh Defendan Kedua dan Defendan Ketiga. 10) Defendan-Defendan tidak pernah menerima apa-apa notis tentang niat untuk mengambil semula hakmilik dari pihak Plaintif. 11) Tempoh bagi notis tersebut adalah tidak mencukupi di bawah Akta Sewa Beli 1967 dan oleh itu, tindakan Plaintif mengambil semula lori-lori tersebut adalah tidak teratur. 12) Bagi penguatkuasaan Notis Tuntutan di bawah Perjanjian- perjanjian Gerenti tersebut, adalah diwajibkan untuk membuat tuntutan melalui Notis Tuntutan yang sah dan disampaikan dengan sempurna. 13) Defendan-Defendan mengakui bahawa Plaintif telah melalui ejen mengambil balik semula lori-lori tersebut daripada Defendan Pertama. 14) Defendan-Defendan tidak mengetahui mengenai Notis Penebusan dan/atau tuntutan daripada Plaintif. 15) Harga jualan lori-lori tersebut adalah dipertikaikan kerana harga jualan RM140,000.00 satu unit adalah rendah dan ia S/N zergEUXhCUulw4hHgA1ybg **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 boleh dijual dengan harga lebih tinggi dengan merujuk sebut harga yang disediakan sebagaimana eksibit “TSL-1”. 16) Defendan-Defendan menyatakan terdapat pembelaan bermerit dan isu-isu untuk dibicarakan antaranya tiada perlanggaran kontrak telah berlaku, Defendan-Defendan tidak dimaklumkan tentang Notis Tuntutan, Notis Untuk Mengambil Semula Hakmilik dan Notis Penebusan selaras dengan perjanjian-perjanjian tersebut. [4] Plaintif ada memfailkan jawapan kepada isu yang dibangkitkan Defendan-Defendan tersebut melalui satu Afidavit Balasan di lampiran 16. [5] Notis Permohonan Plaintif melalui Lampiran 13 ini adalah satu permohonan di bawah Aturan 14 (1) Kaedah-Kaedah Mahkamah 2012 yang mana Mahkamah kemukakan semula seperti berikut: “1. (1) Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has entered an appearance in the action, the plaintiff may, on the ground that defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part thereof except as to the amount of any damages claimed, apply to the Court for judgment against that defendant.” S/N zergEUXhCUulw4hHgA1ybg **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 [6] Dalam kes ini, Defendan-Defendan tidak mempertikaikan isu serahan Writ saman dan selepas penerimaan Writ Saman, Defendan-Defendan telah memfailkan pembelaan mereka. [7] Oleh itu, Notis Permohonan Plaintif di sini adalah selaras dengan kes CEMPAKA FINANCE BHD V HO LAI YING (TRADING AS KH TRADING) & ANOR [2006] 2 MLJ 685, Mahkamah Persekutuan telah memutuskan bahawa:- “In an application under O14, the burden is on the plaintiff to establish the following conditions: that the defendant must have entered appearance; that the statement of claim must have been served on the defendant; that the affidavit in support must comply with r 2 of O14 in that it must verify the facts on which the claim is based and must state the deponent’s belief that there is no defence to the claim. Once those conditions are fulfilled, the burden then shifts to the defendant to raise triable issues.” [8] Pihak Plaintif telah mengemukakan kesemua eksibit berhubung dengan tuntutan Plaintif terhadap Defendan-Defendan yang mana ia adalah berdasarkan satu kemudahan Sewa Beli dengan kredit sewa tidak melebihi RM1,200,000.0 diikuti dengan Surat Tawaran dan 4 perjanjian dengan Defendan Pertama (Perjanjian-Perjanjian S/N zergEUXhCUulw4hHgA1ybg **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 Sewa Beli) serta satu Perjanjian Jaminan (Surat Guranti) yang ditandatangan oleh Defendan Kedua dan Defendan Ketiga. [9] Adakah Defendan-Defendan telah berjaya menunjukkan wujudnya satu pembelaan atau isu untuk dibicarakan? [10] Defendan-Defendan ada membangkitkan bantahan awal terhadap affidavit sokongan dan affidavit pihak Plaintif dengan mendakwa affidavit tersebut kerana gagal mendedahkan sumber maklumat deponent atau orang yang telah menasihati deponent tersebut. [11] Mahkamah telah meneliti kedua-dua affidavit yang difailkan bagi pihak Plaintif. Deponen adalah pengurus (Manager) bagi pihak Plaintif. Beliau telah diberikan kebenaran dan kuasa sepenuhnya untuk mengikrarkan affidavit dan butir-butir yang dinyatakan dalam affidavit adalah dalam pengetahuan dan/atau rekod-rekod Plaintif yang mana deponent ada akses dan betul mengikut rekod Plaintif. [12] Oleh demikian, bantahan awal pihak Defendan-Defendan ini tidak berasas dan ditolak. [13] Dari keseluruhan affidavit yang difailkan, Mahkamah dapat ringkaskan bahawa antara isu yang dibangkitkan oleh Defendan- Defendan adalah seperti berikut: S/N zergEUXhCUulw4hHgA1ybg **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 a) Lori-lori yang dibekalkan harus mematuhi spesifikasi dan mempunyai kualiti boleh dagang (merchantable quality) b) Terdapat persetujuan lisan pihak-pihak. c) Oleh kerana lori-lori dibekalkan tidak memenuhi spesifikasi yang diminta oleh Defendan Pertama dan/atau tidak mempunyai kualiti nilai dagang, kemajuan projek Defendan Pertama telah dilambatkan. Oleh itu, pembayaran tidak dapat diluluskan dan dilepaskan. d) Ketidakpatuhan tersebut oleh Plaintif juga telah melanggar seksyen 7 Akta Sewa Beli 1967 dan Akta Pelindungan Pengguna 1999. e) Defendan-Defendan tidak pernah menerima apa-apa notis tentang niat untuk mengambil semula hakmilik dari pihak Plaintif. f) Tempoh bagi notis tersebut adalah tidak mencukupi di bawah Akta Sewa Beli 1967 dan oleh itu, tindakan Plaintif mengambil semula lori-lori tersebut adalah tidak teratur. g) Defendan-Defendan tidak mengetahui mengenai Notis Penebusan dan/atau tuntutan daripada Plaintif. h) Harga jualan lori-lori tersebut adalah dipertikaikan. S/N zergEUXhCUulw4hHgA1ybg **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 [14] Daripada semua isu yang dibangkitkan, Mahkamah dapati semua telah dijawab oleh pihak Plaintif melalui affidavit balasan di Lampiran 16. Isu serahan bagi semua notis penebusan dan notis tuntutan telah terjawab. Ia diserah mengikut persetujuan pihak-pihak berdasarkan alamat seperti dinyatakan dalam perjanjian Sewa beli mengikut klausa 15 Perjanjian-perjanjian sewa beli tersebut. [15] Dalam masa yang sama, Mahkamah dapati ia adalah satu alegasi tidak berasas apabila Defendan-Defendan dapat membela tindakan dan tidak mempertikaikan serahan Writ Saman dan Penyataan Tuntutan ini sedangkan writ saman dan penyataan Tuntutan yang diserahkan ke alamat kepada Defendan-Defendan. [16] Oleh itu, isu serahan segala notis, surat dan peringatan adalah tidak dapat diterima oleh Mahkamah. Ia adalah penafian semata dan tidak disokong sementara Plaintif telah membuktikan dengan jelas serahan yang dilakukan. [17] Isu seterusnya berhubung nilai atau kualiti lori-ori yang tidak mengikut spesifikasi. Mahkamah merujuk kepada eksibit-eksibit yang dilampirkan. Lori-lori tersebut adalah model baru yang dihantar sebagaimana dikehendaki oleh Defendan-Defendan. S/N zergEUXhCUulw4hHgA1ybg **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 [18] Menurut klausa 5.1 Perjanjian-perjanjian Sewa beli tersebut, ia telah diserahkan dan Defendan-Defendan telah menerima dan berpuas hati dengan keadaan semasa serahan. [19] Tambahan pula, Defendan-Defendan telah menggunakan lori-lori tersebut tanpa apa-apa aduan atau rungutan. Tidak ada dalam mana-mana eksibit atau dokumen menunjukkan Defendan- Defendan ada membuat aduan atau timbul masalah berhubung barang yang diterima (lori-lori tersebut). [20] Sehingga writ saman dan penyataan tuntutan dan juga notis penarikan semula lori-lori tersebut (sehingga pelupusan melalui jualan tender), Defendan-Defendan tidak pernah membantah atau membuat aduan. Tidak pernah juga timbul isu berhubung apa yang dikatakan “perjanjian lisan”’ sebelum ini. [22] Berhubung isu harga jualan lori-lori yang dipertikaikan kerana dijual di bawah harga pasaran dan sebagainya, Defendan-Defendan sepatutnya membangkitkan hal ini sebelum lori-lori tersebut dijual. Ini kerana notis telah diberikan (walaupun dinafikan). Defendan- Defendan tidak boleh pada masa ini bergantung kepada dakwaan mereka tidak menerima notis penarikan semula sedangkan Defendan-Defendan menyatakan dalam affidavit mereka bahawa “Defendan-Defendan mengakui bahawa Plaintif telah melalui ejen S/N zergEUXhCUulw4hHgA1ybg **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 mengambil balik semula lori-lori tersebut daripada Defendan Pertama.” [23] Berhubung isu perlanggaran 7 Akta Sewa Beli 1967 dan Akta Pelindungan Pengguna 1999, Plaintif telah menjawab dalam affidavit mereka dan menyatakan bahawa Akta Sewa Beli tidak terpakai kerana peralatan-peralatan iaitu lori-lori “Mining Dump Truck” tidak termasuk dalam jadual Pertama Akta Sewa Beli 1967. Oleh itu, dengan meneliti Perjanjian-perjanjian Sewa Beli tersebut dan isu undang-undang ini, dakwaan ini juga sudah terjawab. [24] Walaupun Defendan-Defendan cuba menunjukkan bahawa kes ini suatu perkara yang rumit dan timbul pelbagai isu untuk dibicarakan, ia hanyalah satu dakwaan kosong dan semua telah dijawab melalui keterangan affidavit-afidavit. Mahkamah mendapati tiada keperluan untuk memanggil saksi dan suatu perbicaraan penuh. [25] Berhubung Surat Jaminan yang ditandatangan oleh Defendan Kedua dan Defendan Ketiga pula, ia adalah tidak dinafikan bahkan diakui benar oleh Defendan-Defendan. [26] Mahkamah merujuk kes MEIDEN ELECTRIC ENGINEERING SDN BHD v MTRANS HOLDING [2006] 7 CLJ 519 yang memutuskan: “[10] Di dalam kes ini defendan tidak dapat menafikan mengenai janjinya dalam terma-terma Perjanjian Jaminan Koporat. Dalam kes S/N zergEUXhCUulw4hHgA1ybg **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 Maplelee Property Sdn. Bhd. v. Tan Lee Fon [2005] 1 CLJ 599 Mahkamah Rayuan memutuskan bahawa adalah menjadi tanggungjawab pengerenti untuk membayar hutang jika peminjam gagal membayar pinjaman.” [27] Berdasarkan keterangan dan apa yang dinyatakan di atas, Mahkamah percaya pihak Plaintif telah menunjukkan bahawa kes ini adalah layak dan sesuai untuk direkodkan satu Penghakiman terus. [28] Mahkamah merujuk kepada kes-kes yang diputuskan seperti berikut: a) CHEN HENG PING & ORS. v. INTRADAGANG MERCHANT BANKERS (M) BERHAD, COURT OF APPEAL, KUALA LUMPUR [1995] 3 CLJ 690 [1] When an application is made for summary judgment under O. 14 supported by an affidavit which goes to show that there is no defence, the defendants must show cause why leave to defend must be given. This means that the defendants must provide answers on oath which constitute evidence that they have a defence which is fit to be tried. The appellants in the present case do not appear to have appreciated this. Their affidavits merely relied on the defence they pleaded, which consists of bare denials and points of law which they could not sustain. S/N zergEUXhCUulw4hHgA1ybg **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 b) ICM TRADING SDN BHD V PERNIAGAAN AZMAN BERSAUDARA [2006] 7 MLJ 459 pula, Mahkamah telah memutuskan bahawa:- “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 party in an 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 not triable.” c) KANG HOCK HIM v. IKHLAS ABADI SDN BHD [2011] 1 LNS 1008, Mahkamah memutuskan bahawa: [11] It was plain in this case that P had adduced sufficient and ample evidence through its affidavits as regards the fact of payment to D in stages totalling RM260,000.00 and the cost of the project being RM3,033.360.00 million, out of which 6% was to be paid to D as its fees. P had, thus, in my view, on an evaluation of the affidavit evidence, made out a prima-facie case on the pleaded claim. It, therefore, followed that the burden then shifted to D to raise triable issues on merits in order to successfully resist P's application for summary judgment. S/N zergEUXhCUulw4hHgA1ybg **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 [17] For the above reasons, I held that none of the issues raised by D could be considered triable issues sufficient to resist an Order 26A application supported by sufficient prima-facie evidence. Placed in the position of a prima-facie case having been established, the burden then shifted to D to raise triable issues that would necessitate the case going for trial. It is trite law that merely raising issues that fail to show a triable defence on the merits would not suffice. In this situation, the plaintiff should not be deprived from invoking the summary process to obtain judgment instead of having to go through the lengthy trial process when the claim is manifestly plain and clear. This entrenched principle was reiterated in the Supreme Court case of Bank Negara Malaysia v. Mohd Ismail & Ors. [1992] 1 CLJ 14 (Rep); [1992] 1 CLJ 627; [1992] 1 MLJ 400 where it was held: Decision: "In our view, basic to the application of all those legal propositions, is the requirement under O. 14 for the court to be satisfied on affidavit evidence that the defence has not only raised an issue but also that the said issue is triable. The determination of whether an issue is or is not triable must necessarily depend on the facts or the law arising from each case as disclosed in the affidavit evidence before the court.". S/N zergEUXhCUulw4hHgA1ybg **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 [29] Oleh demikian, setelah meneliti Notis Permohonan, affidavit-afidavit, eksibit-eksibit, hujahan dan otoriti kedua-dua pihak, Mahkamah membenarkan Lampiran 13 dengan kos ditanggung oleh pihak Defendan-Defendan dan satu penghakiman terus direkodkan terhadap Defendan Pertama, Defendan Kedua dan Defendan Ketiga. Sekian untuk pertimbangan YAH. Disediakan oleh: Sazlina Safie ………………………… Sazlina Bt Safie Hakim Sesyen, Mahkamah Sesyen 3 Sivil, Mahkamah Sesyen Petaling Jaya, Selangor. Tarikh :21/11/2023 PEGUAMCARA PLAINTIF: EN. BONG XIN WEI [ABRAHAM OOI & PARTNERS] PEGUAMCARA DEFENDAN: CIK CHERYL PATRICIA FREDERICKS [TETUAN EDWIN LIM & SUREN] S/N zergEUXhCUulw4hHgA1ybg **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

WA-22C-55-07/2020

PLAINTIF EXCEL CUBIC RESOURCES SDN BHD DEFENDAN PANZANA ENTERPRISE SDN BHD

1st Issue: Whether the Defendant has breached Clause 3.1 of the LoA for failure to pay the amount due to the Plaintiff within 45 days from the date of IPC 9 – PN2 and/ or from the draft SoFA - 2nd Issue: Whether the Plaintiff's entitlement to be paid the value of works in IPC 9 – PN2 and draft SoFA is subject to the maximum ceiling price by virtue of Clauses 1.5 and 3.3 of the LoA - 3rd Issue: Whether the SoFA is a draft which is subject to further deductions available to the Defendant - 4th Issue: Whether the Defendant is entitled to impose LAD on the Plaintiff - 5th Issue: Whether the Plaintiff is entitled for the sum of RM63,807.13 from the Defendant being payment of GST - 6th Issue: Whether the Defendant is entitled to retain the 2nd moiety of retention sum since the Plaintiff did not comply with Clause 3.3 of the LoA

21/11/2023

YA Dato' Hajah Aliza binti Sulaiman

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=aabd1c09-f29b-4438-be19-ee6c9c7d8564&Inline=true

1 IN THE HIGH COURT IN MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR, MALAYSIA SUIT NO.: WA-22C-55-07/2020 BETWEEN EXCEL CUBIC RESOURCES SDN. BHD. (Company No.: 1010785-W) ... PLAINTIFF AND PANZANA ENTERPRISE SDN. BHD. (Company No.: 83573-P) ... DEFENDANT GROUNDS OF JUDGMENT INTRODUCTION [1] This case involves a claim by the Plaintiff for outstanding amounts for, essentially, pavement works in relation to a road in Rawang, Selangor which was allegedly completed under a sub-contract with the Defendant. The Defendant counterclaimed for liquidated ascertained damages (‘LAD’) for the Plaintiff’s purported delay in completing the works under the sub-contract. [2] The main issues which arose for determination were whether the Plaintiff is entitled to the sum of RM1,335,848.23 or any part thereof as the balance unpaid sums under the sub-contract and whether the 21/11/2023 12:41:56 WA-22C-55-07/2020 Kand. 98 S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Defendant is entitled to its counterclaim for LAD in the sum of RM1,089,600.00. [3] At the end of the trial, I allowed the Plaintiff’s claim for the balance sum but only for RM139,606.50. I also allowed the Defendant’s counterclaim in its entirety for the sum of RM1,089,600.00. [4] The Plaintiff is dissatisfied with the decision and has appealed against the same. This judgment contains the full reasons for my decision. THE FACTS [5] The Plaintiff has a registered address at C-6-2, Megan Avenue 1, No. 189, Jalan Tun Razak, 50400 Kuala Lumpur and a business address at No. 28, Jalan Indah 1/6, Taman Universiti Indah, 43300 Seri Kembangan, Selangor Darul Ehsan. [6] The Defendant’s registered and business addresses are Tingkat 11, Menara Manulife RB, Jalan Gelenggang, Damansara Heights, 50490 Kuala Lumpur. [7] The Defendant is the main contractor for the project known as "Pembinaan Jalan Pintas Rawang Bagi Mengatasi Kesesakan Lalulintas Di Bandar Rawang Secara 'Design And Build': Jajaran Alternatif Yang Melalui Taman Warisan Negeri Selangor (Elevated Structure)" (‘Project’). S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 [8] By a Letter of Award dated 30.11.2013 (‘LoA’), the Defendant awarded the sub-contract for “Pavement Works - Alignment B and Treatment To Existing Road” for the Project to the Plaintiff for the sum of RM2,109,806.50 (‘Sub-Contract Sum’). Based on Clause 2.1 LoA, the sub-contract period for the Works is for three months commencing from 1.12.2013 until 28.2.2014. [9] According to Clause 1.2 LoA, the Plaintiff's scope of works includes the provision of preliminaries, new pavement works, treatment of existing road and all other associated works (hereinafter collectively referred to as the ‘Works’). [10] It is an agreed fact that the Certificate of Practical Completion (‘CPC’) dated 26.6.2018 was issued by the Defendant to the Plaintiff on 12.7.2018, certifying that the Works were completed on 21.11.2017. THE PLAINTIFF’S CASE [11] The Plaintiff took the position that the scope and type of works under the LoA was changed to the extent that it required remeasurement by the Defendant. The new scope of work was given by the Defendant on 11.3.2014. [12] The Plaintiff claimed that it had completed the works for the Project on 30.10.2015 whereby the works were remeasured by the Defendant on 17.1.2020 to be valued as RM3,242,241.10 as stated in the Defendant's Statement of Final Account (‘SoFA’). S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 [13] However, the Defendant failed to make payment for the works within 45 days from the date of the Interim Payment Certificate (‘IPC’) No. 9 (Penultimate no. 2) (‘IPC 9 – PN2’), which was endorsed by the Defendant's Project Manager, and has thereby breached Clause 3.1 of the LoA. [14] The Plaintiff further contended that it has paid Goods and Services Tax (‘GST’) amounting to RM63,807.13 through several Tax Invoices. [15] The Plaintiff's claim was said to be based on the Defendant's own remeasurements of the works and was particularised as follows: Total amount of completed works : RM3,242,241.10 GST : RM 63,807.13 Payment received : (RM1,970,200.00) Balance outstanding : RM1,335,848.23 THE DEFENDANT’S CASE [16] The Defendant insisted that throughout the Project, the works carried out by the Plaintiff were within the Plaintiff's original scope of work under the LoA and that no variation works were instructed by the Defendant. [17] The value of works carried out by the Plaintiff are recorded in the draft SoFA (which was never endorsed by the Defendant pursuant to the LoA) and IPC 9 – PN2, which are merely a record of the value of works carried out by the Plaintiff. Any payment to be made to the Plaintiff is S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 still subject to the maximum ceiling price which shall not exceed the Sub-Contract Sum as provided under Clause 1.5 of the LoA and the Plaintiff's compliance with Clause 3.3 of the LoA and deduction of LAD. [18] As the Plaintiff had received payment from the Defendant in the sum of RM1,970,200.00, the balance amount is only RM139,606.50 before reaching the maximum ceiling price under the LoA. [19] The Defendant’s stance was that the balance amount is subject to deduction or set-off for LAD in the sum of RM1,089,600.00 (RM800.00 per day for 1,362 days from 1.3.2014 to 21.11.2017) in completing the Works under the LoA. The Defendant claimed this sum as set-off or counterclaim against any sum payable to the Plaintiff under the LoA. [20] With regards to the Plaintiff's claim for GST, the Defendant contended that the Plaintiff has not demonstrated it has issued, and the Defendant has received, any Tax Invoice from the Plaintiff which corresponds with a GST sum of RM63,807.13. In addition, the Plaintiff has not demonstrated that the GST sums were in fact paid to the Government of Malaysia (‘Government’). [21] The Defendant claimed that it was entitled to withhold the 2nd moiety of the retention sum because the official written expiration of the Defect Liability Period (‘DLP’) of the Main Contract has yet to be issued and the Plaintiff has failed to comply with Clause 3.3 LoA. S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 THE TRIAL & ISSUES TO BE TRIED [22] The trial was held over three days. Three witnesses testified for the Plaintiff whilst the Defendant called one witness. The particulars of the witnesses are shown below: Witness Name Designation PW1 Mr. Abdul Rahim Bin Mohd @ Mokhtar Project Engineer PW2 Ms. Wong Soot Ling Plaintiff’s Director PW3 Mr. Siaw Way Seng Alleged Project Director of the Plaintiff DW1 Mr. Mohammad Shukri bin Othman Defendant’s Senior Quantity Surveyor [23] Six issues were identified for trial, and they are as follows: “1. Whether the Defendant has breached clause 3.1 of the Letter of Award for failure to pay the amount due to the Plaintiff within 45 days from the date of Interim Payment Certificate (No. 2) duly endorsed by the Defendant's Project Manager and/ or from the Draft Statement of Final Account. 2. Whether the Plaintiff's entitlement to be paid the value of works in the Interim Payment Certificate (No.2) and Draft Statement of Final Account is subject to the maximum ceiling price by virtue of Clause 1.5 of the Letter of Award and Clause 3.3 of the Letter of Award. S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 3. Whether the Statement of Final Account is a draft which subject to further deductions available to the Defendant. 4. Whether the Defendant is entitled to impose the Liquidated and Ascertained Damages on the Plaintiff. 5. Whether the Plaintiff is entitled for the sum of RM63,807.13 from the Defendant being payment of GST. 6. Whether the Defendant is entitled to retain the 2nd moiety of retention sum since the Plaintiff did not comply with Clause 3.3 of the Letter of Award.”. [24] The reference to “Interim Payment Certificate (No. 2)” in the Issues To Be Tried (‘ITBT’) No. 1 and 2 is more accurately stated as “Interim Payment Certificate No. 9 (Penultimate no. 2)” as per the title of the document at p 31, B1. ANALYSIS AND FINDINGS OF THE COURT [25] Before proceeding to a detailed analysis of the issues, I should firstly make clear that, in arriving at my decision, I was guided by the well- established legal principles that – (a) the law leans in favour of upholding bargains and not in striking them down willy-nilly (see Charles Grenier Sdn Bhd v Lau Wing Hong [1996] 3 MLJ 327 where Gopal Sri Ram JCA (as he then S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 was) in delivering the judgment of the apex court had referred to the speech of Lord Wright in Hillas & Co v. Arcos Ltd [1932] All ER Rep 494; see too, Emas Kiara Sdn Bhd v Michael Joseph Monteiro (receiver and manager of Lembah Beringin Sdn Bhd) & Ors (Farcoll Estate Sdn Bhd & Ors, intervenors [2018] 5 MLJ 54 (CA) at p 65, para 32; Sarah Sayeed Majangah (t/a sole proprietor under the name and styles of Sayfol International School) & Anor v Lembaga Getah Malaysia & Ors [2016] 3 MLJ 812 (CA) at p 819, para 6; and Sejati Education Sdn Bhd v S3M Development (Sabah) Sdn Bhd [2016] 2 MLJ 98 (CA) at pp 101 - 102, para 5); and (b) the court must not rewrite the contract between the parties and must hold them to the contract they had made for themselves by giving effect to the clear and unequivocal words of the clauses in the contract, which in this case, is the LoA (see Chan Whye & Sons Contractors (Suing As a Firm) v Sarawak Shell BHD [2003] 5 MLJ 68 (HC) at p 75; Asia Control System Impac (M) Sdn Bhd v PNE PCB Bhd and Another Appeal [2010] 4 MLJ 332 (CA) at p 339, para 15; and Malaysian Motor Insurance Pool v Tirumeniyar a/l Singara Veloo [2020] 1 MLJ 440 (FC) at pp 472 & 473, para 100). [26] Secondly, the Defendant had made extensive submissions on the credibility of PW2 and PW3. In my assessment, the Plaintiff’s case largely rested on the evidence of PW3. [27] PW1’s testimony was of no assistance to the Plaintiff whilst PW2 evidently did not know much about the LoA and left the Sub-Contract S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 very much in the hands of PW3. PW2 was not familiar with the day-to- day operation of the Sub-Contract and in respect of the LoA, she only knew the amount of the Sub-Contract. PW2 admitted that the Works were 100% sub-contracted to Waja Builders and PW3 is the sub- contractor, and not the Plaintiff’s Director. [28] At the start of the cross-examination, PW3 testified that he did not receive a monthly salary from the Plaintiff, and he is not the Plaintiff’s employee. Nonetheless, PW3 insisted that he is the Plaintiff’s Project Director. [29] Having considered the evidence given by PW2 and PW3 at the trial, I would not go as far as to reject their evidence in totality on the ground that they are not credible witnesses. I have, however, viewed their evidence with caution. 1st Issue: Whether the Defendant has breached Clause 3.1 of the LoA for failure to pay the amount due to the Plaintiff within 45 days from the date of IPC 9 – PN2 and/ or from the draft SoFA [30] Clause 3.0 of the LoA governs the procedure for progress claims and payment. Clauses 3.1 and 3.3 stipulate that: “3.1 You shall submit a detailed claim in a format acceptable to us not later than seven (7) days before the date of monthly valuation to be verified and approved by the Project Manager. All approved interim payments, subject to retention, shall be paid to you within forty five S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 (45) days commencing from the date of valuation duly endorsed by Project Manager. … 3.3 Half of the retention sum shall be released upon the issuance of Certificate of Practical Completion (CPC) subject to confirmation of final quantities and As Built Drawings and warranties as required under Clause 5 and any other documents as may be required and the balance shall be released upon the official written expiration of the Defect Liability Period of the Main Contract. No payment shall be made for rejected works. Final payment shall only be made to you upon submission of the following documents to PANZANA: i) Statutory Declaration made by you or on your behalf; OR ii) A certificate signed by or on behalf of the Director General of Labour To the effect that the workmen who have been employed by you, whether nominated or otherwise (including labour only Sub-Contractors) have received all wages due to them in connection with such employment, and that all dues or contributions under the Employment Ordinance, the Employee’s Social Security Act, the Employee’s Provident Fund Ordinance and any S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 other laws relevant to the employment of workmen, have been paid.”. [31] The Plaintiff contended that it is entitled to the outstanding sum of RM1,335,848.23 for the completion of the original works and additional works for the Project. In the answer to Q.6 of his Witness Statement, PW3 stated that “The Plaintiff received variation orders from the Defendant throughout. …”. [32] However, when shown IPC 9 – PN2 during cross-examination, PW3 agreed that the revision from the Sub-Contract Sum to RM3,242,241.10 was as a “… result of remeasurement of original works and not due to VO.” and that the Plaintiff’s claim is technically a final claim and payment made for this sum is really a final payment. This was followed by his firm answer during re-examination that “This whole project is remeasurement so there is no VO.”. [33] In view of PW3’s evidence that the Plaintiff’s claim is a final claim, the Plaintiff’s entitlement to final payment under the Sub-Contract is subject to Clause 3.3 of the LoA which requires the Plaintiff to submit the following documents to the Defendant: (a) a Statutory Declaration (‘SD’) made by the Plaintiff; or (b) a certificate signed by or on behalf of the Director General of Labour to the effect as stated in the said Clause. S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 [34] In the textbook The Malaysian PWD Form of Construction by Lim Chong Fong (as he then was), Sweet & Maxwell Asia, 2004 at pp 113 - 114, the learned writer opined that the requirement for a SD in Clause 48(d) of the PWD Form of Construction Contract on “Final Certificate”, which is largely identical to Clause 3.3 of the LoA, is “… to ensure that all relevant workmen have been paid as the Government may otherwise still be liable to the workmen as provided in s 33 of the Employment Act 1955 (see Lembaga Kemajuan Tanah Persekutuan (FELDA) v Mat Akhir bin Bakar & Ors [1991] 1 CLJ 349). As a matter of practice, it is thus generally more convenient and common for the Contractor to pay in advance and make a statutory declaration to this effect. The statutory declaration is to be forwarded to the Superintending Officer. Before so doing, it is essential that the Contractor has fully satisfied himself that all the wages of the labourers (particularly those not directly employed by him) have been paid as he would otherwise be making a false declaration and is liable to a fine and imprisonment not exceeding 3 years upon conviction pursuant to s 3 of the Statutory Declarations Act 1960, read together with ss 199, 200 and 193 of the Penal Code.” (see too, the Second Edition of the book published in 2011 at p 73 regarding Clause 31.5 of the PWD 2013A (Rev 2007) Contract). [35] Hence, as submitted by Mr. Terence Loh for the Defendant, the condition is not merely administrative in nature, but in fact serves a very important purpose of ensuring that the Plaintiff has paid all the wages of the labourers and has complied with all of its statutory obligations to pay SOCSO and EPF contributions. S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 [36] At the trial, no evidence was adduced by the Plaintiff to show that it had submitted the requisite documents in accordance with Clause 3.3 of the LoA. The 1st Issue must therefore be answered in the negative. [37] Without derogating from the above, the Defendant also submitted that the Plaintiff’s entitlement to be paid the final payment is subject to the maximum ceiling price as will be discussed next. 2nd Issue: Whether the Plaintiff's entitlement to be paid the value of works in IPC 9 – PN2 and draft SoFA is subject to the maximum ceiling price by virtue of Clauses 1.5 and 3.3 of the LoA [38] Clauses 1.5 of the LoA reads as follows: “This Sub-contract works is provisional quantities and subject to the final remeasurement upon completion of the whole works. Notwithstanding, this subcontract shall further subject to the maximum ceiling price whereas the final subcontractor value shall not exceed the awarded value. In the event you encounter the works scheme may steering for surpassing the awarded value, as a prerequisite condition, you are required to notify us diligently and further obtain approval from us prior executing the works and you are not entitle for any loss in expanse and time due to this.”. [39] In my view, Clause 1.5 LoA is clear in its meaning, namely, that the Sub-Contract is subject to the maximum ceiling price of S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 RM2,109,806.50 and the final sub-contract value of works carried out by the Plaintiff shall not exceed this price. The Defendant cited the case of Dae Hanguru Infra Sdn Bhd v Baldah Toyyibah (Prasarana) Kelantan Sdn Bhd & Anor [2017] 1 LNS 635 (HC) which involved the Kota Bharu – Kuala Krai Expressway Construction Project and one of the terms of the contract is “a guaranteed maximum price of RM1,800,000,000.00” (the decision of the Court of Appeal is reported in [2020] 5 CLJ 27 and at the time of writing this judgment, the Federal Court had also decided on the matter; see [2022] 4 MLJ 51). [40] However, in the event the scheme of works is such that the Plaintiff becomes aware that the value of works done will exceed the Sub- Contract Sum, the Plaintiff is required to notify, and seek approval from, the Defendant of the potential cost escalation before executing the works. This is to allow the Defendant to efficiently manage the Sub- Contract and to make an informed decision on whether to proceed with the works or otherwise, considering the potential price escalation. [41] The Plaintiff’s response to the issue of maximum ceiling price was that – (a) it is an afterthought as it was raised for the first time after the commencement of this action; and (b) it is reasonable to infer from the Defendant’s own action of revaluating the works as seen in IPC 9 – PN2, which approved of works for value exceeding the Sub-Contract Sum, that the Defendant did have notice of the Plaintiff’s claim exceeding the Sub-Contract Sum. S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 [42] However, as outlined under the 1st Issue, the Defendant has established that the works required to be carried out by the Plaintiff are within the original scope of works under the Sub-Contract and the remeasurement which was undertaken was a remeasurement of the Plaintiff’s original scope of works and thus, must be pursuant to Clause 1.5 of the LoA. [43] During the cross-examination of PW3, he testified that there is no record of any written notification by the Plaintiff to the Defendant that the value of works would exceed the maximum ceiling price and of any written approval by the Defendant to lift the maximum ceiling price pursuant to Clause 1.5 LoA. [44] PW3 further agreed that, for the Plaintiff to receive additional payment for value of works in excess of the Sub-Contract Sum, it is very important for the requisite notification to be made and for the Defendant’s approval to be obtained. [45] In the circumstances, the 2nd Issue is answered in the affirmative. As it was not in dispute that the sum of RM1,970,200.00 was paid by the Defendant to the Plaintiff, the Plaintiff’s claim was allowed for the balance sum of RM139,606.50. [46] With regards to interest, in the Statement of Claim, interest was claimed from 17.1.2020 as the date when the Plaintiff’s representatives signed the draft SoFA at p 20, B1. However, PW3 admitted that the Plaintiff had, upon receiving the unsigned copy of the SoFA, proceeded to affix its own signature through the Director, Elaine Wong. DW1 S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 testified that, when he signed the draft SoFA, the signatures of the Plaintiff’s representatives were not there. [47] I accepted DW1’s evidence. This means that the signatures of the Plaintiff’s representatives were placed later when the Plaintiff somehow obtained a copy of the draft SoFA. By this act, there is an element of dishonesty on the part of the Plaintiff. [48] I thereby ordered that interest on the sum of RM139,606.50 shall be at the rate of 5% per annum from the date of filing of the Writ and SoC i.e. 8.7.2020 until full settlement. 3rd Issue: Whether the SoFA is a draft which is subject to further deductions available to the Defendant [49] It is evident from a perusal of the SoFA at p 20, B1 that it has not been certified, verified, audited and approved by the Defendant. There are no signatures of the persons named in the document and no dates of signing are placed either. There is no doubt that it is merely a draft. [50] The 3rd Issue is thus answered in the affirmative. 4th Issue: Whether the Defendant is entitled to impose LAD on the Plaintiff [51] The Defendant alleged that the Plaintiff failed to complete the Works within the Sub-Contract Period which ended on 28.2.2014 and S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 therefore, it was entitled to impose LAD against the Plaintiff based on Clauses 2.2 and 2.5 of the LoA which provide that: “2.2 In the event you are delayed or reasonably foresee that you may be delayed in the execution or completion of the Works by events or circumstances beyond your control for which you consider such as to justify an extension to the Sub-Contract Period, you shall give the Contractor notice in writing immediately, but not later than seven (7) days from, the occurrence or likelihood of such an event, of your intention to claim for an extension and the period of extension required together with all such details of the delaying event(s) and supporting documentations. … 2.5 Further and without prejudice to any other rights or remedies the Contractor may possess under this Sub- Contract or at law, if you fail to complete the Works within the agreed Sub-Contract Period, or such extended period of time pursuant to Clause 2.1, the contractor reserve the right to impose Liquidated and Ascertained Damages on you at the rate of RM 800.00 per day and the amount shall be deducted from your sub contract sum.”. [52] As indicated earlier, the parties had agreed to the fact that the CPC was issued by the Defendant to the Plaintiff on 12.7.2018, certifying S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 that the Works were completed on 21.11.2017. The Defendant’s counsel had correctly pointed out that, based on the Statement of Agreed Facts, it would be inconsistent for the Plaintiff to then posit that it had completed the Works in October 2015 and that it did not see or receive the CPC (see the answer to Q. 10 in WS-PW3). [53] When cross-examined, PW3 conceded that the Plaintiff did not apply for an extension of time (‘EoT’) under Clause 2.2 of the LoA. [54] The Defendant argued that it is against commercial and logical sense that PW3, being someone with 20 years of experience in the construction industry and managing countless projects; recognising that profitability is important; understanding the need to apply for EoT if the Defendant had caused delay; and conscious that EoT and LAD are two important considerations affecting profitability and entitlement to payment, did not give any notice of delay or make any application for EoT for delays purportedly caused by the Defendant. As such, the logical inference is that the Defendant did not cause any delay to the completion of the Works. [55] The Defendant further referred to the cases of Yuk Tung Construction Sdn Bhd v Daya CMT Sdn Bhd and another appeal [2020] MLJU 1084 (CA) and KL Eco City Sdn Bhd v Tuck Sin Engineering & Construction Sdn Bhd & Anor [2020] MLJU 2457 to support its argument that it is a mandatory obligation for the Plaintiff to give written notice to the Defendant to be entitled to EoT under the LoA. By failing to do so, the time of completion under the LoA remained on 28.2.2014. S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 [56] I find the Defendant’s submissions compelling. Moreover, it is a cardinal rule that he who asserts the facts, must prove those facts exist (see ss 101 and 103 of the Evidence Act 1950 [Act 56] and the case cited by the Defendant, Norsitah bt Ottoh & Ors v Rosinah bt Nasry & Ors [2019] 2 MLJ 662 (CA) at paras 39 - 41). Therefore, as it is the Plaintiff who asserted that the delays were caused by the Defendant, the onus lies on the Plaintiff to prove this fact. Upon assessment of the evidence adduced at the trial, it is my considered view that the Plaintiff has failed to prove, on a balance of probabilities, that the delay was caused by the Defendant for the following reasons: (a) In the Amended Reply and Defence to Counterclaim, the Plaintiff pleaded that the Defendant delayed handing over the work areas. Specifically, the Plaintiff claimed that its scope of works is only related to the supply and laying of premix. The excavation for formation and road base and levelling has to be completed by the Defendant and verified by the site officer before the Plaintiff can commence its scope of works. The Plaintiff’s Progress Claims Nos. 1 to 5 would show that the particular work areas were handed to the Plaintiff in March 2014 and there was an idling period of 17 months due to the Defendant’s failure to hand over the specific work areas. In this regard, it is noted that Progress Claims Nos. 1 to 5 are dated 18.3.2014, 18.4.2014, 30.5.2015, 30.6.2015 and 30.10.2015. At the trial, the Plaintiff relied on PW3’s evidence; the Joint Measurement Forms (Subcon) (‘JMF’) at pp 83 - 99, B1; s 53 of the Contracts Act 1950 [Act 136] on “Order of performance of reciprocal promises”; and the decision of the Court of Appeal in S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 Code Focus Sdn Bhd v Tan Chee Hoe & Sons Sdn Bhd [2013] 4 MLJ 59 at paras 42 and 43 to support its contention that the road must be prepared by the other sub-contractors and there would be at least three other stages before the Plaintiff can start its work, and the dates on the JMF were when the joint site measurements were done and it was only after these dates that the site was handed over to the Plaintiff. The Court, however, accepts the Defendant’s submission that the JMF do not constitute proof of late handover of site or that other sub-contractors had caused delay to the Plaintiff’s works. The JMF is a joint measurement record of the work done by the Plaintiff for the purpose of valuation of the Plaintiff’s claim. In WS- PW3, the witness stated that the JMF are related to the Plaintiff’s claim no. 3. When questioned by the Defendant’s counsel, PW3 agreed that – (i) the JMF can only be prepared after the completion of the works; (ii) the dates at the bottom part of the JMF show the date when remeasurement was done; and (iii) the JMF do not show the excavation contractor was in delay in carrying out its work. No other evidence was produced by the Plaintiff to substantiate its claim that the delay was caused by the Defendant. The Plaintiff did not provide any particulars as to the purported delay S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 caused by other sub-contractors, i.e. their identities and the number of days of delay or to explain how the event had caused a delay to the completion date and the number of days of delay caused by the delay event to justify the delay of 1,362 days to complete the Works from the completion date of 28.2.2014 under the LoA to the actual completion date of 21.11.2017 as certified in the CPC. By failing to lead cogent evidence to prove the fact that the entire delay was caused by the Defendant and/ or its sub-contractors, the Plaintiff did not discharge the burden of proving, on a balance of probabilities, the fact that the Defendant has failed to hand over the work site to the Plaintiff in a timely manner. Assuming for a moment that the Plaintiff has discharged the said burden of proof, nevertheless it is the Plaintiff’s contractual obligation under Clause 2.2 LoA to apply for an EoT of the sub- contract period if the Plaintiff is of the view that it would not be able to complete the Works by 28.2.2014. PW3 agreed to this statement and to the suggestion that the Plaintiff did not apply for an EoT although the Works clearly could not be completed within the sub-contract period. As I was not satisfied that the Plaintiff has proven, on a balance of probabilities, the fact that the Defendant has failed to hand over the work site to the Plaintiff in a timely manner, the Plaintiff’s proposition that the Defendant cannot insist on performance and claim for LAD pursuant to Clause 2.5 of the LoA is misconceived. By failing to apply for EoT, the Plaintiff cannot assert alleged acts S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 of prevention by the Defendant to claim that the Defendant had prevented the Plaintiff from completing the Works by the completion date under the LoA. It necessarily follows that the Defendant is entitled to LAD [see Yuk Tung Construction (supra)]. (b) The Plaintiff asserted that the Defendant’s claim for LAD is an afterthought and must be dismissed because - (i) the Defendant did not issue a single letter of complaint to the Plaintiff about delay in completing the Works within the completion period; (ii) the Defendant did not issue a Certificate of Non- Completion (‘CNC’) and relying on the case of Kerajaan Malaysia (Jabatan Kerja Raya) v Global Globe (M) Sdn Bhd [2018] MLJU 1200 (CA), the Defendant is not entitled to charge for LAD; and (iii) the Defendant never attempted to make any deduction of LAD or delay damages from all the previous IPC. In so far as the issue of CNC is concerned, Mr. Terence Loh has correctly pointed out that the applicable clause in Kerajaan Malaysia’s case (supra) is Clause 40 of the PWD 203A (Rev. 2007) form of contract where the Superintending Officer is required to, firstly, issue a notice to the contractor to inform of the Government’s intention to impose LAD if the contractor fails to S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 complete the works by the date for completion or within any extended time granted, and this is followed by the CNC. However, in the instant case, Clause 2.5 of the LoA does not expressly provide that the Defendant must issue a notice or any complaint/ reminder letters and a CNC to the Plaintiff before the former can impose LAD. In Liquidated Damages and Extensions of Time in Construction Contracts, Second Edition, Wiley- Blackwell, 1997 by Brian Eggleston, the learned author explicated on conditions precedent in a claim for LAD in these words: “The effectiveness of challenging liquidated damages by claiming non-observance of conditions precedent depends exclusively on the wording of the particular contract. If there are express requirements making the consideration of extensions of time, the issuing of certificates of completion or non-completion, and the giving of notices of intention to deduct, conditions precedent, they may be effective as shown in a previous chapter. But this is not an area where the courts are likely to imply terms. It might seem inequitable that liquidated damages should be deducted before extensions of time have been considered but this is not prohibited by some standard forms and the courts will not improve the contract for the parties. …”. S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 Based on Clause 2.5 of the LoA, the only requirement the Defendant needs to satisfy in imposing LAD against the Plaintiff is the Plaintiff’s failure to complete the Works within the sub- contract period or such extended period of time pursuant to Clause 2.1 of the LoA. [57] As for the Plaintiff’s assertion that the employer did not impose any LAD or delay damages against the Defendant, and hence, the Defendant is not entitled to impose the same against the Plaintiff, this fact was not pleaded by the Plaintiff in its pleadings and was only raised for the first time in WS-PW3. [58] It is trite law that parties to a suit are bound by what have been pleaded in their respective pleadings and the court will not consider any unpleaded point in the process of delivery of the judgment (see Janagi v Ong Boon Kiat [1971] 2 MLJ 196 and Ketua Pengarah Jabatan Kerja Raya v Strongkota Development Sdn Bhd & Another Appeal [2016] MLJU 820 (CA) and the discussion on pleadings in the judgment of this Court in Tech Art Sdn Bhd v. Metropolitan Bumi Sdn Bhd [2023] MLRHU 134). [59] Based on the foregoing considerations, the Defendant’s contractual right to impose and recover LAD strictly arises from Clause 2.5 of the LoA and the Defendant has, in my view, established that the Plaintiff has breached the LoA by failing to complete the Works within the sub- contract period and that the LoA contains a clause specifying a sum to be paid upon breach [see Cubic Electronics Sdn Bhd (in liquidation) v Mars Telecommunications Sdn Bhd [2019] 6 MLJ 15 (FC) at p 45, subpara 74(g)]. S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 [60] In the circumstances, the Defendant is entitled to impose LAD against the Plaintiff from 1.3.2014 until 21.11.2017 (1,362 days x RM800.00 per day) in the sum of RM1,089,600.00. [61] The 4th Issue is answered in the affirmative. The Defendant’s counterclaim in the sum of RM1,089,600.00 was allowed with interest at the rate of 5% per annum from the date of the Amended Statement of Defence & Counterclaim i.e. 26.8.2020 until full settlement. 5th Issue: Whether the Plaintiff is entitled for the sum of RM63,807.13 from the Defendant being payment of GST [62] Based on WS-PW3, the Plaintiff has to charge GST and the Defendant was aware of it as the words “Delay due to GST issue” was written by the Defendant in the “REMARKS” column in IPC No. 03 for the period ending 31.5.2015 (p 35, B1). This was when GST became an issue. [63] When cross-examined, DW1 initially gave evidence that the Project Manager had written the words “Delay due to GST issue”, but upon being pressed by the Plaintiff’s counsel, DW1 finally said that he does not know who wrote these words. DW1 further agreed with the learned counsel’s suggestion that he is not the person to ask as to the reason for the remarks in IPC No. 03 (the same remark can be seen in IPC No. 04 for the period ending 30.6.2015 at p 36, B1). Oddly, in the Plaintiff’s Reply Submissions, Mr. KC Tang seems to rely on DW1’s evidence when submitting that IPC Nos. 03 and 04 were signed by the Project Manager whereas the learned counsel had challenged DW1’s S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 answer as being guess work (see the Notes of Evidence for 14.10.2021 at pp 38 - 40). [64] PW3 additionally stated that the Plaintiff had written to the Defendant regarding GST by a letter dated 28.7.2015 (p 51, B1) and had issued Tax Invoices Nos. EC00001 to EC00005 dated 1.10.2015, 20.10.2015, 27.4.2016 (two Invoices) and 2.7.2016 (pp 100 - 104, B1) in contending that it has paid GST amounting to RM63,807.13. However, upon adding the amount of “Tax” in all five Tax Invoices, the total is actually RM63,807.30 and more significantly, there is no company chop and signature on any of the Tax Invoices as proof that the Defendant has received the same. [65] As for the letter dated 28.7.2015, it merely shows that the Plaintiff had informed the Defendant that GST is deemed to be included in the LoA and therefore, the Plaintiff would much appreciate if the Defendant can allow the Plaintiff to add GST that has been implemented in April 2015 to the Sub-Contract. [66] The Plaintiff had also referred to its e-mail to the Defendant dated 11.11.2015 at p 105, B1 where the Plaintiff had attached IPC Nos. 03 and 04 together with the “Tax Invoice”. The e-mail does not expressly state the Tax Invoice number. Whilst it may be possible to discern from the “Nett Payment Due” in IPC Nos. 03 and 04 that the relevant Tax Invoices are Nos. EC00001 and EC00002, the Defendant had apparently queried the Plaintiff on whether the “… latest invoices supersede the earlier one? Refer to inv. 0026 and 0030”. There is no document to show that the Plaintiff had answered the Defendant’s question. It is observed that in re-examination, PW3 testified that Tax S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 Invoices Nos. EC00004 and EC00005 have nothing to do with actual work done and were issued for the purpose of GST only. Nevertheless, the main submission by the Defendant was that the Plaintiff has not proven that the Defendant had received the five Tax Invoices in question and that the GST sums were in fact paid to the Government (see DW1’s answer to Q. 10 in his Witness Statement). [67] I was therefore persuaded to answer the 5th Issue in the negative because the Defendant had put the Plaintiff to strict proof that the Tax Invoices were received by the Defendant and that the Plaintiff had paid the GST sum as claimed to the Government (see para 10 of the Amended Statement of Defence and Counterclaim) and this, the Plaintiff failed to do, on a balance of probabilities. 6th Issue: Whether the Defendant is entitled to retain the 2nd moiety of retention sum since the Plaintiff did not comply with Clause 3.3 of the LoA [68] It is noted that in the Plaintiff’s Written Submissions, the issue was presented as “Whether the Defendant is entitled to retain the 2nd moiety of retention sum as a consequence to the Plaintiff’s delay in completing the works” rather than as what was agreed by the parties as one of the ITBT. [69] The analysis of the 6th Issue proceeded on the basis of the 6th Issue in the ITBT. S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 [70] The Defendant pleaded that the amount as claimed by the Plaintiff includes the 2nd moiety of retention in the sum of RM81,056.00 and that the issuance of the official written expiration of the DLP of the Main Contract is a condition precedent for the release of the 2nd moiety of retention sum (see paras 11 and 12 of the Amended Statement of Defence and Counterclaim). [71] Clause 3.2 of the LoA states that: “A retention sum of TEN Percent (10%) of the total value of the certified work shall be deducted in all interim payments until the total amount deducted is equivalent to FIVE percent (5%) of the Sub-Contract Sum including any variation thereof, or any revised sub-contract sums thereof.”. [72] It is clear from Clause 3.3 of the LoA as quoted previously that the balance of the retention sum shall be released only upon the official written expiration of the DLP of the Main Contract. The Plaintiff attempted to ignore the express contractual provision by submitting that, based on the CPC, the DLP expired on 20.11.2019 and as the suit was commenced on 8.7.2020, the Plaintiff is entitled to the 2nd moiety of retention sum. [73] The Plaintiff further accused the Defendant of withholding the SoFA for seven years and thus, on the authority of Akitek Tenggara Sdn Bhd v Mid Valley City Sdn Bhd [2007] 5 MLJ 697 (FC), the Defendant cannot rely on the Plaintiff’s failure to comply with Clause 3.3 LoA as an excuse to withhold the balance of the retention sum. S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 [74] It was correctly highlighted by the Defendant that a perusal of the draft SoFA shows that the witness had signed the same only on 17.1.2020. Hence, it is misleading for the Plaintiff to contend that the Defendant has withheld the SoFA for seven years. Moreover, this fact was not raised in the Plaintiff’s pleadings and if one was to follow through with the Plaintiff’s argument, this would mean that the SoFA was due since around 4.2.2014 (seven years before the first date of trial) and the entire suit would then be barred by sub-s 6(1) of the Limitation Act 1953 [Act 254]. [75] As the Plaintiff itself relied on the CPC and the fact that the DLP ended on 20.11.2019, the draft SoFA which included the release of the retention sum could not have been prepared before that date. [76] In the final analysis, the fallacy of the Plaintiff’s submission is glaring. The 6th Issue is therefore answered in the affirmative. CONCLUSION [77] Following from the reasons as elucidated above, the Plaintiff’s claim was allowed for the balance sum of RM139,606.50 with interest at the rate of 5% per annum from the date of filing of the Writ and Statement of Claim (8.7.2020) until full settlement. The Defendant’s counterclaim was also allowed in the sum of RM1,089,600.00 with interest at the rate of 5% per annum from the date of the counterclaim (26.8.2020) until full settlement. S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 [78] Mr. Terence Loh prayed for RM30,000.00 as costs in defending the Plaintiff’s claim and putting forward the counterclaim. Mr. KC Tang countered that the Plaintiff’s claim was allowed by the Court albeit for a reduced sum and hence, costs for the Defendant’s counterclaim are set off against costs for the Plaintiff’s claim. The learned counsel implored for there to be no order as to costs. I agreed and thus, no order was made as to costs. Dated: 17 November 2023 (ALIZA SULAIMAN) Judge Construction Court 2 High Court Kuala Lumpur Counsels/ Solicitors: For the Plaintiff: Tang Kim Choong (Mohammad Shafiee Bin Afendi with him) Messrs. K C Tang & Co. Advocates & Solicitors No.16-1, Jalan Jernai 6/21D Medan Idaman Batu 5 Jalan Gombak 53100 Kuala Lumpur For the Defendant: Terence Loh (Oliver Chin Wy Hong and Teoh Yuh Fen with him) Messrs. Belden S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 Advocates & Solicitors Level 1B, Block B Kompleks Pejabat Damansara Jalan Dungun, Damansara Heights 50490 Kuala Lumpur Cases, legislation and other sources referred to in the submissions by learned counsels and in the Grounds of Judgment: Cases referred to: Akitek Tenggara Sdn Bhd v Mid Valley City Sdn Bhd [2007] 5 MLJ 697 Asia Control System Impac (M) Sdn Bhd v PNE PCB Bhd and Another Appeal [2010] 4 MLJ 332 Baldah Toyyibah (Prasarana) Kelantan Sdn Bhd v. Dae Hanguru Infra Sdn Bhd & Another Appeal [2020] 5 CLJ 27 (CA) Chan Whye & Sons Contractors (Suing As a Firm) v Sarawak Shell BHD [2003] 5 MLJ 68 Chong Lek Engineering Works Sdn Bhd v PFCE Integrated Plant and Project Sdn Bhd and another case [2020] MLJU 2389 Clearpath Marketing Sdn Bhd v Malayan Banking Berhad [2019] 1 LNS 111 Code Focus Sdn Bhd v Tan Chee Hoe & Sons Sdn Bhd [2013] 4 MLJ 59 S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 Cubic Electronics Sdn Bhd (in liquidation) v Mars Telecommunications Sdn Bhd [2019] 6 MLJ 15 Dae Hanguru Infra Sdn Bhd v Baldah Toyyibah (Prasarana) Kelantan Sdn Bhd & Anor [2017] 1 LNS 635 (HC) Dae Hanguru Infra Sdn Bhd v Baldah Toyyibah (Prasarana) Kelantan Sdn Bhd and another appeal [2022] 4 MLJ 51 (FC) Emas Kiara Sdn Bhd v Michael Joseph Monteiro (receiver and manager of Lembah Beringin Sdn Bhd) & Ors (Farcoll Estate Sdn Bhd & Ors, intervenors [2018] 5 MLJ 54 (CA) Janagi v Ong Boon Kiat [1971] 2 MLJ 196 Kerajaan Malaysia (Jabatan Kerja Raya) v Global Globe (M) Sdn Bhd [2018] MLJU 1200 KL Eco City Sdn Bhd v Tuck Sin Engineering & Construction Sdn Bhd & Anor [2020] MLJU 2457 Malaysian Motor Insurance Pool v Tirumeniyar a/l Singara Veloo [2020] 1 MLJ 440 Norsitah bt Ottoh & Ors v Rosinah bt Nasry & Ors [2019] 2 MLJ 662 Sarah Sayeed Majangah (t/a sole proprietor under the name and styles of Sayfol International School) & Anor v Lembaga Getah Malaysia & Ors [2016] 3 MLJ 812 (CA) S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 Sejati Education Sdn Bhd v S3M Development (Sabah) Sdn Bhd [2016] 2 MLJ 98 (CA) Tech Art Sdn Bhd v. Metropolitan Bumi Sdn Bhd [2023] MLRHU 134 Yuk Tung Construction Sdn Bhd v Daya CMT Sdn Bhd and another appeal [2020] MLJU 1084 Legislation referred to: Contracts Act 1950, s 53 Employment Act 1955, s 33 Evidence Act 1950, ss 101 & 103 Limitation Act 1953, s 6 Other sources referred to: Brian Eggleston, Liquidated Damages and Extensions of Time in Construction Contracts, Second Edition, Wiley-Blackwell, 1997 Lim Chong Fong, The Malaysian PWD Form of Construction Contract, Sweet & Maxwell Asia, 2004 and the Second Edition, 2011 S/N CRy9qpvyOESGe5snH2FZA **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

WA-29NCC-570-02/2020

PEMIUTANG PENGHAKIMANPUA HUA KEONGPENGHUTANG PENGHAKIMANKANAGASUNDRAM A/L RAJOO

Appeals against the decision of the Registrar dismissing the Judgment Debtor’s application to set aside a creditors petition (Enclosure 66) and the decision dismissing the Judgment Debtor’s application to set aside the bankruptcy notice (Enclosure 68).

21/11/2023

YA Tuan Ahmad Murad Bin Abdul Aziz

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=97a4c4ea-8a52-4b52-b09f-bfbbd4b722ef&Inline=true

ja-12b-28-07/2019 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) IN THE MATTER OF BANKRUPTCY NO.: WA-29NCC-570-02/2020 BETWEEN KANAGASUNDRAM A/L RAJOO [NRIC No.: 570822-10-6301] … JUDGMENT DEBTOR AND PUA HUA KEONG [NRIC No.: 580429-10-5509] … JUDGMENT CREDITOR 21/11/2023 16:27:49 WA-29NCC-570-02/2020 Kand. 134 S/N 6sSkl1KKUkuwn771Lci7w **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 JUDGMENT (Enclosure 66 and 68) INTRODUCTION [1] The Judgement Debtor (“JD”) filed two (2) appeals against the decision of the Registrar: (i) Enclosure 66: the JD’s appeal against the decision of the Registrar dismissing the JD’s application to oppose and set aside a creditor’s petition (“CP”) by the Judgment Creditor (“JC”). (ii) Enclosure 68: the JD’s appeal against the decision of the Registrar dismissing the JD’s application to set aside a bankruptcy notice (“BN”). [2] I will first address the JD’s appeal in Enclosure 68. [3] The first ground put forward by the JD to challenge the BN is that he had paid the judgment debt to his former solicitors, who in turn had paid the money to the solicitors of the JC. To support this contention, the JD produced the receipt of payment issued to him by his former solicitors. However, he failed to produce any receipt from the JC’s solicitor to prove that the money was in fact paid to the JC’s solicitors. Thus, without any documentary evidence that the judgment debt was paid to the JC’s solicitors, the JD had failed to discharge the burden of proof that his solicitors had paid the money to the JC’s solicitors. S/N 6sSkl1KKUkuwn771Lci7w **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 Thus, the JD’s submission on this point was correctly rejected by the Registrar. [4] The other two issues raised by the JD are issues of law. The main issue is the question of the threshold amount used by the JC to initiate bankruptcy proceedings against the JD. [5] The judgment debt is RM58,000.00. Thus, the JD contends that the judgment debt is below the new threshold brought into effect by section 1A of the Insolvency (Amendment) Act 2020 (“the Amendment Act”). The amendment raised the threshold in section 5(1)(a) of the Insolvency Act 1967 (“IA 1967”) from RM50,000.00 to RM100,000.00. [6] It is not disputed that the Amendment Act came into operation on 01.09.2021. Section 3 of the Amendment Act contains a saving provision, which states: “Any bankruptcy petition by the petitioning creditor against a debtor before the coming into operation of this Act, with the amount of debt owing by the debtor to the creditor that fulfils the requirement in paragraph 5(1)(a) of the principal Act, which is still pending immediately before the coming into operation of this Act, shall be confirmed or concluded under the principal Act as if it had not been amended by this Act.” [7] The BN was filed on 28.02.2020, and served personally on 26.10.2020. Thus, the act of bankruptcy was committed by the JD on 06.11.2020. [8] The CP was filed on 04.05.2021, and the amended CP was filed on 14.07.2021. Since the Amendment Act only came into operation on S/N 6sSkl1KKUkuwn771Lci7w **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 01.09.2021, the old threshold of RM50,000.00 still applies to the CP herein. [9] In any event, the current bankruptcy proceedings falls squarely within the saving provision of the Amendment Act. Thus, the RM5,000.00 threshold is applicable. Therefore, I find the submission by the JD is misconceived. ENCLOSURE 66 [10] The other issue raised by the JD in this Enclosure is that the date of the act of bankruptcy is not 06.11.2020 as contended by the JC but in fact was suspended until the date of dismissal of the appeal by the JD to the Court of Appeal against the judgment in favour of the JC. [11] In Enclosure 66, the JD avers that the CP ought to be set aside because it was filed prematurely. The basis of this contention by the JD is that an act of bankruptcy is not crystalised until all the appeals against a judgment have been exhausted. To support this contention, the JD relies on the case of Natarajan a/l Kuppusamy, ex-parte Co-operative Central Bank Ltd (in receivership) (1992) 2 MLJ pg 468. [12] In Natarajan’s case, V.C. George (J) (as he then was) held; “(1) In the face of language used in r 95(2) of the rules, and the prevailing practice, where the affidavit is filed before the expiry of the statutory seven- day period given by the bankruptcy rules, the time for compliance with the notice is to be deemed to have been extended until the application has been heard and determined. S/N 6sSkl1KKUkuwn771Lci7w **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 (2) As no act of bankruptcy was deemed to have been committed until the disposal of the application, the filing of the petition before the disposal of the application purportedly grounded on non-compliance with the bankruptcy notice was invalid.” [13] Therefore, in Enclosure 66, the JD contends that based on the dicta in Natarajan’s case, the CP ought not to have been filed until the final disposal by the Court of Appeal of the appeal against judgment filed by the JD. [14] I am of the view the case of Natarajan above can easily be distinguished on the facts. In Natarajan, the JD had filed his affidavit to challenge the BN within the seven (7) days provided by the rules. Thus, the court held that the act of bankruptcy was “frozen” until the disposal of the application to set aside the BN. [15] In the present case, the JD failed to file any affidavit within seven (7) days after service of the BN. In fact, the JD only filed his affidavit and application to set aside the BN two (2) years after service of the notice to him, on 04.02.2022. Thus, there was no “freezing” of the commencement of the act of bankruptcy as contended by the JD. As such, the timing of the filing of the petition of the JC was correct and I find the submission by the JD in support of Enclosure 66 to be misconceived. [16] My finding on the issue is supported by the following cases: (i) Goh Kein Hooi v OCBC Bank (Malaysia) Berhad & Another appeal (2014) 4 CLJ 274, where the Court of Appeal held; “…the BN was duly served based on the date of advertisement and that would be on 12.11.2009. The JD had seven days from S/N 6sSkl1KKUkuwn771Lci7w **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 13.11.2009 to challenge the amount claimed on the BN. Unfortunately, the JD did not do so. The challenge is mounted too late in the day – at the time when the CP is being heard.” (ii) Development and Commercial Bank Bhd v Datuk Ong Kian Seng (1995) 2 MLJ 724, where the Federal Court held; “…what is patently clear to us is that on the facts, the respondent cannot be allowed to dispute the validity of the bankruptcy notice on the ground on which he now relies because the notice of dispute by way of his affidavit affirmed on 18.02.1992 has not complied with proviso (ii) to section 3(2) of the Act.” [17] Applying the principles enunciated in the above cases, since the JD has failed to comply with the strict provision of section 3(1)(i) of the Insolvency Act 1967, the act of bankruptcy occurred upon expiry of seven (7) days after service of the BN. Therefore, the date of filing of the CP by the JC is in compliance with the provisions of the Insolvency Act and the rules and is valid. I find both the applications in Enclosure 66 and 68 to be without any merit. [18] For the aforesaid reasons, I dismiss both Enclosure 68 and 66 with costs of RM5,000.00. Dated 20th November 2023 …………t.t……………... Ahmad Murad Bin Abdul Aziz Judge High Court of Malaya Kuala Lumpur S/N 6sSkl1KKUkuwn771Lci7w **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 COUNSEL FOR THE JUDGMENT DEBTOR: VINOD KAMALANATHAN & ANIS AMIRAH SOLICITORS FOR THE JUDGMENT DEBTOR: TETUAN VINOD KAMALANATHAN & ASSOCIATES COUNSEL FOR THE JUDGMENT CREDITOR: P. PONMALAR SOLICITORS FOR THE JUDGMENT CREDITOR: TETUAN HAKEM ARABI & ASSOCIATES Cases Referred to: ➢ Natarajan a/l Kuppusamy, ex-parte Co-operative Central Bank Ltd (in receivership) (1992) 2 MLJ pg 468 ➢ Goh Kein Hooi v OCBC Bank (Malaysia) Berhad & Another appeal (2014) 4 CLJ 274 ➢ Development and Commercial Bank Bhd v Datuk Ong Kian Seng (1995) 2 MLJ 724 Legislation Referred to: ➢ Insolvency Act 1967 ➢ Insolvency (Amendment) Act 2020 Decision Date : 15.08.2023 S/N 6sSkl1KKUkuwn771Lci7w **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

WA-27NCC-69-09/2019

PLAINTIF 1. ) SUZANNAH HELEN HARVEY 2. ) RONAN FRANCIS HARVEY DEFENDAN 1. ) Langkawi Yacht Club Bhd 2. ) Royal Langkawi Yacht Club

ADMIRALTY LAW: Contaminated fuel - Contractual and tortious liability- Negligence in fuel supply - Maritime fuel management - Maritime fuel quality and testing - Causes of contamination - Fuel merchantable quality - Saltwater contamination - Mechanical and electrical damage of marine engine - Damage investigation - Vessel maintenance and operation - Vessel seaworthiness - Fuel tank integrity - Damage assessment - Evaluation of technical evidence - Operational Integrity - Operational practices at marina - Maintenance and inspection of fuel installation - Maritime safetyEVIDENCE: Contract and tort breach - Burden of proof - Civil proceedings standard of proof - Balance of probabilities - Evidential burden shift - Contaminated fuel analysis - Analysis of causation - Causal link - Chain of causation - Contamination source - Indirect evidence of causation - Circumstantial evidence - Evaluation of evidence - Effective or dominant cause - Proximate cause - Common sense inference - Logical and reasonable inferences - Temporal proximity - Sequential event analysisSALE OF GOODS: Contaminated diesel fuel - Supply of good quality fuel - Section 16 Sale of Goods Act 1957 (SOGA) - Preconditions of SOGA - Merchantable quality - Fitness of goods - Seller's skill and judgment - Fitness for purpose - Fuel quality assurance - Supplier responsibility - Breach of contractNEGLIGENCE: Bunkering services - Contaminated diesel fuel - Vessel damage - Duty of care in supplying fuel - Foreseeability of damage - Proximity - Fairness and reasonableness - Contamination causation - Causation and harm - Foreseeability of damage - Contamination cause and effectDAMAGES: Contract and tort - Foreseeable losses - Remoteness of damages - Contaminated fuel damages - Direct and consequential loss - Burden of proof -Quantification of damages - Substantiation of claims - Repair and storage costs - Fuel testing expenses - Crew wages and flight expenses - Medical treatment for stress - Injector pump and injectors cost - Fuel testing - Crew emergency repair expenses - Hotel and travel expenses during repairs - Repair and storage costs - Additional crew wages - Flight expenses - Medical treatment for stress and trauma - Injectors and pumps costs - Administrative costs - Insurance payout deduction - Financial documentation and records - Alternate accommodation costs - Replacement holidays - Mitigation of lossesDAMAGES: Loss of vessel use - Damages for loss of use - Vessel uninhabitable -Chartering substitute vessel - Reasonableness of claim - Duration of loss of use - Capital value of the vessel - Interest on capital value - Vessel's advertised sale value - Proportionate compensation - Overestimation of loss period - Proportionality in damagesDAMAGES: Non-pecuniary losses - Assault on feelings - Mental distress – Anxiety - Frustration and disappointment - Discomfort and inconvenience - Loss of enjoyment - High-risk situation at sea - Psychological impact evidence - PTSD - Mental distress compensation - Quantification of emotional damages - Reasonable compensation - Absence of diagnosed medical condition - Pleasure craft consideration - Fair compensation determination

20/11/2023

YA Tuan Atan Mustaffa Yussof Ahmad

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=265f28e8-c2cb-426a-a40c-2b0d8fba8364&Inline=true

DALAM MAHKAMAH PERUSAHAAN MALAYSIA 1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) ADMIRALTY IN PERSONAM NO: WA-27NCC-69-09/2019 BETWEEN 1. SUZANNAH HELEN HARVEY (United Kingdom Passport No.: 538972343) 2. RONAN FRANCIS HARVEY (United Kingdom Passport No.: 511424712) ... PLAINTIFFS AND LANGKAWI YACHT CLUB BHD (Company No.: 344822-X) … DEFENDANT JUDGMENT [1] In the quiet waters of the Royal Langkawi Yacht Club (RLYC), a story unfolded that now rests before this Court, a tale of adventure turned awry, where the SV “Binary Star,” a vessel of dreams and explorations owned by the 1st Plaintiff and captained by the 2nd, found her journey abruptly halted. The Plaintiffs allege that their aspirations and safety were jeopardised by what they claim was contaminated fuel supplied by the Defendant, the operator of the RLYC. This saga began with a routine fueling at the RLYC, a prelude to 20/11/2023 12:25:08 WA-27NCC-69-09/2019 Kand. 214 S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 a family holiday and a grand circumnavigation, but swiftly transformed into a nightmare as their yacht, shortly after leaving the marina, succumbed to engine failures and extensive damage. The Plaintiffs assert that this misfortune was the direct result of the Defendant's actions - supplying fuel unfit for its purpose and of unmerchantable quality. This case now presents a legal conundrum: Did the contaminated fuel from the RLYC, as the Plaintiffs steadfastly claim, indeed cause this calamity? This Court is tasked with navigating through the complex waters of contractual obligations, alleged negligence, and the intricate mechanics of a pleasure yacht's downfall, to discern where the truth lies and, accordingly, where the responsibility falls. BACKGROUND FACTS [2] This action pertains to a pleasure yacht originally built in 1992 as the “SY Blue Dawn of Sark,” a Trintella A. In late 2015, the yacht was purchased by Suzannah Helen Harvey, the 1st Plaintiff (“Suzannah”). Upon acquisition, the ownership was registered in her name, and the vessel was subsequently renamed the SV “Binary Star” (“Vessel”). [3] The Vessel is a 60-foot yacht primarily used for personal and family excursions. Under the command of Suzannah’s father, Ronan Harvey (“Ronan”), the 2nd Plaintiff, the Vessel was actively navigating since August 2015, covering over 30,000 nautical miles. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 [4] The Vessel underwent an extensive period of annual docking and maintenance from 25.10.2017 to 21.5.2018 at Northern Shipyard Sdn Bhd (“Northern Shipyard”) in Langkawi, Malaysia. This comprehensive maintenance process was to ensure the Vessel’s optimal operational condition and included the complete cleaning of all fuel tanks, thorough testing and evaluation of fuel lines and valves, and the replacement of all fuel system filters. [5] Following this maintenance phase, the Vessel prepared for her next voyage to Male in the Maldives by bunkering a total of 2,600 litres of fuel on 21.5.2018 and 22.5.2018. This fuel was distributed among the Centre, Port, and Starboard Tanks of the Vessel. The Vessel then departed from Northern Shipyard on 26.5.2018, setting sail for Yacht Haven Marina in Phuket. This journey served as a sea trial to test the Vessel's performance post-maintenance. During this trial, the Vessel primarily utilised 90 litres of fuel from the Centre Tank, supplemented by subsequent uplifts from the Starboard Tank. After successfully completing her sea trial, the Vessel returned to Langkawi by 27.6.2018 and docked at the Royal Langkawi Yacht Club Marina (“the RLYC Marina”) in Kuah operated by the Royal Langkawi Yacht Club (“the RYLC”), which in turn was operated by the Defendant, Langkawi Yacht Club Bhd. [6] On 4.7.2018, the RLYC supplied the Vessel with 1,615.85 litres of diesel fuel, at a cost of RM4,994.50. The Vessel uplifted the fuel from the RLYC Marina fuel pump which was S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 primarily loaded into the Vessel's Starboard Tank, with additional amounts used to top off the Port and Centre Tanks. [7] After her fuel uplift at the RLYC Marina, the Vessel embarked on her journey from 4.7.2018 to 12.7.2018, during which she was primarily motor sailed, and her generator was utilised for powering onboard electronics. On 12.7.2018, around 0200 hours, the crew began using the fuel from the Starboard Tank that had been recently acquired from the RLYC. [8] By the early hours of 13.7.2018, the crew observed significant smoke emanating from the engine exhaust. An immediate and urgent investigation was conducted, revealing that the fuel in the Day Tank was contaminated, appearing milky and heavy with water. In response, the crew undertook immediate remedial measures including draining the Day Tank, changing the filters, and subsequently reloading it with fuel from the Centre and Port Tanks, in an attempt to mitigate the issue. [9] Despite these efforts, the situation escalated when the engine experienced a dramatic overspeed while in neutral. The Vessel suffered significant damage to the Vessel's electrical systems and batteries and the crew continued with remedial actions to maintain the operation of the engine until the Vessel safely reached her next destination, Male, Maldives where the Vessel made an emergency stop on S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 17.7.2018 for crucial repairs. The damage extended to the main engine, generator engine, electrical systems, and batteries. [10] Upon her arrival in Male, the Vessel underwent a day of customs clearance procedures and only on 19.7.2018, a local service engineer named Athif boarded the Vessel to conduct a thorough survey of the damages. In the aftermath of his initial assessment, Ronan communicated the details of the incident to the Defendant via email. [11] On board the Vessel, Athif executed several necessary repairs over the months of August and September 2018, documenting the repair work culminating in a report issued on 9.9.2018. Despite the earlier mechanical challenges, the Vessel was able to continue her journey from Male to Cochin without further incident. During this period, a sample of the fuel, taken by Ronan on 30.7.2018 was sent to Testing Services (UK) Ltd. (“Intertek UK”). The Vessel was then brought to the Boustead Langkawi Shipyard on or around May 2018 and docked for further repairs. [12] Ronan contacted Tayfun Koksal, the General Manager of the RLYC on 4.11.2018 to address the fuel incident and engine damage, but no further tests were conducted. Meanwhile, the RLYC Harbourmaster arranged for a fuel sample to be tested by Petrotechnical Inspection (M) Sdn Bhd (“Petrotechnical”) on 7.11.2018. Further investigations included a survey of the Vessel at Boustead Langkawi S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 Shipyard by a surveyor appointed by the Hull and Machinery (“H&M”) insurer, Charles Taylor Marine Sdn Bhd (“Charles Taylor Marine”) on 30.11.2018, and subsequent tests by ITS Testing Services (M) Sdn Bhd (“Intertek Malaysia”) on 7.3.2019 revealed significant water content in the fuel. [13] The Plaintiffs issued a Notice of Demand on 25.7.2019 to the Defendant and “Royal Langkawi Yacht Club Bhd” (stated in error) through their solicitors. In the demand, the Plaintiffs claimed that the RLYC supplied contaminated diesel fuel to their Vessel, causing substantial loss and damage, and demanded a payment of USD1,380,663.75 for the fuel cost and consequential losses. The Defendant disputed the Plaintiffs’ claims by way of an email dated 1.8.2019. [14] The Plaintiffs then filed this action on 25.9.2019, mainly claiming for: a) Damages for all loss expense and damage suffered by the Plaintiffs as a result of the use of the contaminated fuel supplied by the Defendant to be assessed by this Court; b) Damages for the loss of use of the Vessel from 20.7.2018 to 30.9.2019; and S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 c) Damages for assault on feelings, mental distress, anxiety, frustration, disappointment, discomfort, inconvenience and loss of enjoyment. WITNESSES [15] The Plaintiffs called eight witnesses whose witness statements are marked “WS-PW1” to “WS-PW8” as follows: a) PW1 is Ronan Harvey, the 2nd Plaintiff in this action. He was the Master of the Vessel and is a qualified Engineer and the owner of Cotswold Airport EGBP. His evidence was on the damage to the Vessel due to contaminated fuel and the subsequent losses and challenges he faced. His Witness Statements are marked as “WS-PW1” and “WS2-PWS1.” b) PW2 is Domnic Alexander (“Domnic”) who is a Marine Engineer and Surveyor appointed by Charles Taylor Marine to survey the Vessel to ascertain the nature and extent of damage sustained to the Main Engine and Generator Engine of the Vessel. His testimony focused on the condition and operational capabilities of the Vessel. Here, he will be referred to also as the H&M Surveyor. His Witness Statement is marked as “WS-PW2.” S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 c) PW3 is C W Nurmaudin bin C W Yusof, who is a Senior Chemist at Intertek Malaysia. His evidence centred on the laboratory analysis of fuel samples from the Vessel, specifically addressing issues of contamination and water content in the fuel. His Witness Statement is marked as “WS-PW3.” d) PW4 is Gunther Barwick (“Gunther”), who was a crew member and a deckhand on the Vessel. His evidence centred on the events and conditions experienced during the voyage to Male, specifically detailing the operational challenges and technical issues faced by the Vessel and her crew. His Witness Statement is marked as “WS-PW4.” e) PW5 is Sean Leslie Griffin (“Sean Griffin”), who is a qualified electrical mechanic engineer and the Chief Operating Officer at Ocean Logistics Limited. His evidence centred on the technical investigation of electrical and mechanical issues on the Vessel, particularly in relation to the engine overspeed incident and subsequent electrical failures. His Witness Statement is marked as “WS-PW5.” f) PW6 is Paul Kennett, who is a senior chemist with over 20 years of experience in liquid fuels testing and the customer support supervisor at Intertek UK. His evidence centred on the laboratory analysis of fuel samples from the Vessel, specifically addressing S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 their quality and compliance with industry standards. His Witness Statement is marked as “WS-PW6.” g) PW7 is Mohamed Athif (“Athif”), who is a Service Engineer with over 20 years of experience in diesel marine engines. His evidence centred on the repair and maintenance work he performed on the MTU (a diesel engine brand) engine of the Vessel. His Witness Statement is marked as “WS-PW2.” h) PW8 is Lisa Diane Powell (“Lisa Powell”), who is a self-employed General Administrator and Bookkeeper, and consultant to Cotswold Airport in Cirencester, Gloucestershire, UK. Her evidence centred on managing the administration of the Vessel claims, including keeping detailed records and accounts for all costs and expenses incurred due to the Vessel engine damage. Her Witness Statement is marked as “WS-PW8.” [16] The Defendant called eight witnesses whose witness statements are marked “WS-DW1” to “WS-DW8(B)” as follows: a) DW1 is Muhammad Asyraf bin Mohd Radzuan (“Asyraf”), who is a crew member at Mofaz Marine Sdn Bhd. His evidence centred on the operational aspects of the sailing yacht “Manta Blu”, particularly in relation to fueling practices and the absence of S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 engine issues associated with the diesel supplied by the RLYC Marina. His Witness Statement is marked as “WS-DW1.” b) DW2 is Zulkifli bin Halim, who is the Marina Supervisor at the RLYC. His evidence centred on the procedures and practices of fuel dispensing at the marina, specifically detailing how diesel is supplied to vessels like the Vessel in this action. His Witness Statement is marked as “WS-DW2.” c) DW3 is Tayfun Koksal (“Tayfun”), who is the former General Manager of the RLYC. His evidence centred on overseeing the operations of the RLYC, including fuel supply procedures, and addressing claims about contaminated fuel supplied to the Vessel. His Witness Statement is marked as “WS-DW3.” d) DW4 is Raden Hasbullah bin Radenalwie (“Raden”), who is the Captain of the sailing yacht SY “Gadis Pulao”. His evidence centred on the operations of his vessel, specifically discussing fueling practices and the absence of engine problems related to the diesel supplied by the RLYC Marina. His Witness Statements are marked as “WS-DW4(A)” and “WS- DW4(B).” e) DW5 is Azrin Dohat (“Azrin”), who is the former harbourmaster/marina manager at the RLYC. His S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 evidence centred on the operations and fuel supply procedures at the RLYC, including details about diesel supply and quality control measures. His Witness Statement is marked as “WS-DW5.” f) DW6 is Azlan bin Abdullah, who is the Executive Director of the Defendant. His evidence centred on the quality and handling of the fuel supplied by the RLYC, and addressing the claims of contamination in the fuel that allegedly caused damage to the Vessel. His Witness Statement is marked as “WS-DW6.” g) DW7 is Maswadi bin Rashid (“Maswadi”), who is the Manager of Miru Enterprise Sdn Bhd (“Miru Enterprise”), a company engaged in fuel supply operations. His evidence centred on the supply of diesel fuel to the RLYC and the procedures and quality controls involved in this process. His Witness Statement is marked as “WS-DW7.” h) DW8 is Klaus Jurgen Heer (“KJ Heer”), who is a Director of Assembly Design Sdn Bhd with extensive experience in engineering since 1985 who gave evidence as the Defendant’s expert. His evidence centred on providing an expert opinion on whether the damages suffered by the Vessel were caused by contaminated fuel supplied from the RLYC Marina. His Witness Statements are marked as “WS- DW8(A)” and “WS-DW8(B).” S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 ISSUES [17] In the ensuing part of this judgment, this Court will structure its deliberations around the mutually agreed issues presented by the parties. These issues, pivotal to the resolution of this case, are as follows: a) Whether the Vessel indeed sustained the damage as claimed; b) Whether this damage was caused by contaminated fuel, specifically diesel fuel mixed with saltwater; c) Whether there were other possible causes of the damage that were beyond the reasonable contemplation or control of the Defendant, and not related to the fuel from the RLYC Marina fuel pump; d) Whether the Defendant supplied the contaminated fuel from the RLYC Marina fuel pump; e) Whether the Plaintiffs acted reasonably to mitigate their losses and damages; and f) Whether the Plaintiffs indeed suffered the loss and damages as claimed. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 ANALYSIS AND FINDINGS OF THE COURT WHETHER THE VESSEL SUSTAINED THE DAMAGE [18] The first issue to be considered is whether the Vessel sustained damage subsequent to refueling at the RLYC Marina. [19] Initially, the Plaintiffs' case pivots on the observations of the Vessel's crew, particularly those made by Ronan (PW1). Approximately 24 hours after utilising fuel from the Starboard Tank on 13.7.2018, an abnormal amount of smoke was observed emanating from the exhaust, a finding corroborated by crew member Phil Diebert. Ronan’s discovery of milky-looking fuel in the Day Tank's sight glass indicated contamination. The crew's responsive measures, including draining the contaminated fuel and changing main filters, were prudent yet indicative of an emergent issue. The engine's aberrant revving to 3,000 revolutions per minute (“RPM”) and the triggering of the Vessel's alarm system, including fire alarms, further affirmed the onset of significant mechanical and electrical issues. These included the failure of the Automatic Voltage Regulator (“AVR”) on the 120 amp alternator, leading to overcharged domestic batteries, and other issues such as a blown 300 amp fuse and the overhaul of both engine alternators. [20] The local MTU service engineer, Athif (PW7), boarded the Vessel on 19.7.2018 in Male. His findings were critical: S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 heavy black smoke from the engine exhaust, an unusual knocking sound from the engine cylinders, an increase in engine oil, and blocked fuel filters. These observations were consistent with the crew's reports and were further substantiated by photographs and video evidence of the Vessel smoking. Athif's expertise with MTU engines lends credence to his findings and his assertion that the damage was typical of what occurs when contaminated fuel enters an injector pump. [21] The Plaintiffs also relied on the findings of Sean Griffin (PW5), an electrical mechanic engineer with over 30 years of experience. Upon inspection in Cochin, Sean Griffin noted the failure of the Northern Lights generator, the non- functionality of the 120 amp alternator, and the failure of the AVR. These damages were not only significant but also necessitated extensive repairs that were not feasible in Cochin, thus forcing the Vessel to return to Langkawi for repairs. [22] Furthermore, the H&M Surveyor’s reports provided by Domnic Alexander (PW2), dated 30.11.2018 and 1.6.2019, give a detailed account of the damage. These reports enumerate specific damages such as the replacement of the fuel injection pump and attached governor, fuel injectors, the AVR of the 120 Amp Alternators attached to the Main Engine, and the generator engine among others. The survey conducted on 1.6.2019 revealed additional alarming details such as the jamming of the crankshaft and S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 pistons, the rough surface of the Bottom End Bearings, and the seizure of the fuel Injection pump. [23] Lastly, the invoices from Boustead Langkawi Shipyard Sdn Bhd, detailing the comprehensive repairs and replacements undertaken on the Vessel, corroborate the extent of the damage. These repairs included the replacement of the generator, a full electrical assessment and refit, the reinstatement of AVR units, and the overhaul of various other components. [24] It is therefore clear that the Vessel did indeed sustain considerable damage following the refueling at the RLYC Marina. These will be further considered in the assessment of damages under the head of direct and consequential loss. WHETHER THE DAMAGE WAS CAUSED BY CONTAMINATED FUEL (DIESEL FUEL MIXED WITH SALTWATER) Diesel fuel was contaminated with saltwater [25] The starting point to this inquiry is to consider whether the diesel fuel used by the Vessel in the voyage to Male was contaminated with saltwater as the Plaintiffs claimed. Central to their claim is the testimony of Ronan himself, a qualified engineer and captain, who observed a milky appearance in the fuel from the Day Tank, indicative of water contamination. This initial observation was S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 substantiated by the presence of heavy exhaust smoke and physical traces of water in the Day Tank. Ronan’s long- standing experience and familiarity with the Vessel since 2015 lend significant credence to his findings. His testimony is not just based on superficial examination but rooted in a deep understanding of the Vessel’s operations and maintenance, which gives it considerable weight. [26] Corroborating Ronan’s findings are the results from Intertek UK and Intertek Malaysia, independent testing services. The analyses were conducted over three separate occasions. Test 1 was conducted by Intertek UK performed on a sample taken from the Starboard Tank of the Vessel by Ronan which was then sent to Intertek UK and received by Intertek UK on 30.7.2018 and analysed by Senior Chemist Paul Kennet (PW6). The samples for Test 2 were taken on 13.7.2021 and analysed by Intertek Malaysia. The samples for Test 3 were received by Intertek Malaysia on 20.7.2020 from Ronan Harvey. These comprehensive tests were crucial in establishing the nature and extent of the fuel contamination and its source. Fuel Test Report No. 1, Fuel Test Report No. 2 and Fuel Test Report No. 3 consistently revealed water contamination in the fuel samples, notably from the Day Tank and the Starboard Tank. Fuel Test Report No. 3, revealing a high sodium level in the Starboard Tank sample. Saltwater contamination is strongly suggested by this evidence, aligning with the Plaintiffs' claim. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 [27] Further substantiation comes from the expert analyses conducted by Senior Chemist Paul Kennet of Intertek UK and Chemist CW Nurmaudin (PW3) of Intertek Malaysia. Kennet’s analysis under ISO 8217:2017 GMA standards identified the presence of cloudy fuel with free water and suspended matter, indicating a failure to meet the required “Clear and Bright” standard. This finding is a clear indicator of water contamination. Nurmaudin’s analyses, revealing a 75% water content by distillation in the Day Tank sample and approximately 50% free water in the Starboard Tank sample, go beyond normal parameters and strongly support the claim of saltwater contamination. [28] Athif, the local MTU service engineer, provides additional support with his observations in Male. His findings of water in the fuel and the altered smell of the fuel samples, combined with his expertise in engines, bolster the conclusion of contamination. His observation of potential contamination with aircraft jet fuel, while not definitively concluded, does not detract from the primary finding of water contamination. [29] Moreover, the Defendant’s expert, KJ Heer (DW8), concedes the presence of water in the fuel. His analysis, particularly his acceptance of the “white smoke” as indicative of steam from water during combustion and his reliance on the high water content found in Fuel Report No. 2 conducted by Intertek Malaysia, aligns with the conclusion of water contamination. This concurrence from the S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 Defendant’s expert adds significant weight to the Plaintiffs' case. [30] The Defendant disputed that the conflicting findings from the three Fuel Test Reports and questions the origins of the samples to undermine Ronan's claim of saltwater contamination in the Vessel’s Starboard Tank, suggesting an alternate source or cause for the fuel issues. In summary the Defendant contended as follows: a) The context of how the samples were obtained was based on Ronan’s assertion that fuel samples from the Vessel’s fuel tanks were collected on 13.7.2018 at sea and around 17.7.2018 at Male, Maldives, Ronan’s claims that he took both sets of samples, and that the fuel for Fuel Report No. 1 and No. 3 was provided by him, while the fuel for Fuel Report No. 2 was selected by Domnic. b) Fuel Test Report No. 1, lacking clear evidence of the sample's origin, analysed a sample brought to the UK by Ronan under suspicious circumstances, tested under ISO 8217/2017 DMA Standards for various properties including lubricity, and found it met all standards except for appearance, which was 'cloudy, free water & suspended matter,' thus not confirming the fuel caused damage to the Vessel's engine. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 c) Domnic clarified that except for Samples 3 & 4, all other samples (1, 2, 5, 6, 7 & 8) tested in Fuel Test Report No. 2 and taken when the Vessel was at Male, showed no water contamination in the Storage Tanks, including the Starboard Tank, but found water contamination in the Day Tank, contradicting the claim that the fuel from the RLYC Marina was contaminated with saltwater. d) Fuel Test Report No. 3, conducted in July 2020, revealed unclear origins of the tested samples and contradicted Ronan's theory of saltwater contamination in the Starboard Tank, with tests showing no sodium or water in the “Day Sump Tank” sample and significant water and sodium in the “Starboard Day Tank” sample, indicating that the Starboard Tank was not contaminated with saltwater. [31] Given the Defendant’s challenges, the Court will analyse the evidence from both parties in respect of the three Fuel Tests. Fuel Test Report No. 1 [32] The Defendant challenges the origins of the fuel sample tested, suggesting that it was not conclusively from the Starboard Tank and raising questions about its transport to the UK for testing. Specifically, the Defendant contends that the suspect circumstances regarding Fuel Test Report No. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 1 stem from two key issues: firstly, the unconventional transportation of the fuel sample in personal luggage by Ronan, as disclosed by Lisa Powell, which raises concerns about the potential for contamination or mishandling; and secondly, the absence of objective evidence or proper documentation verifying the sample's origin, particularly the claim by Ronan that it was sourced from the 'Starboard Tank', leaving the sample's representativeness and integrity in question. Moreover, the Defendant posits that even if the sample was from the Starboard Tank and contaminated, the test results do not confirm that this fuel caused damage to the Vessel’s engine, as the sample passed the lubricity test. [33] However, upon scrutiny, the Defendant’s arguments do not withstand the evidence. Ronan, as the Master of the Vessel, provided a detailed account of his actions following the discovery of the fuel issue, including the collection and handling of the Test 1 sample. He confidently and consistently asserts that he personally took the sample from the Starboard Tank on the day of the incident, 13.7.2018, and subsequently arranged for its transport to Intertek UK for analysis. [34] Ronan’s testimony is not merely a general assertion but is supported by specific details that lend credibility to his account. He described the process of extracting the sample, the steps taken to ensure its integrity, and the arrangements made for its analysis. This level of detail in Ronan’s testimony is indicative of a firsthand, direct experience with S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 the sampling process, distinguishing it from a generic or vague statement. [35] Importantly, there is an absence of any contemporary evidence that contradicts Ronan’s claim about the origin of the Test 1 sample. No witness statements, vessel logs, or other documentary evidence presented by the Defendant effectively challenge Ronan’s account. The lack of such contradictory evidence further reinforces the reliability of Ronan’s statement. [36] The Court also considers the broader context of Ronan’s role and responsibilities as the Master of the Vessel. In this capacity, Ronan would have been intimately involved in and knowledgeable about the Vessel’s operational aspects, including fuel management. His position and experience thus lend additional weight to his testimony regarding the fuel sampling process. [37] Regarding the transportation of the sample, the Court notes the discrepancy in timelines concerning Ronan’s travel and the receipt of the sample by Intertek UK. The Defendant asserts that the circumstances under which the fuel sample was brought to the UK are dubious, citing Lisa Powell's (PW8) testimony about Ronan transporting the sample in his luggage. However, upon closer examination, this claim is significantly weakened by the factual timeline of events. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 [38] Lisa Powell's recollection, as presented by the Defendant, suggests that Ronan personally transported the fuel sample to the UK. This assertion, however, is directly contradicted by the established timeline of events. The Court notes that the sample was received by Intertek UK on 30.7.2018, a date when Ronan was verifiably on board the Vessel in Male. This fact is crucial as it directly challenges the notion that Ronan could have transported the sample to the UK himself, as claimed. [39] Furthermore, Ronan did not return to New Zealand until November 2018, several months after the Test 1 sample was received by Intertek UK. This substantial gap between the sample's receipt by Intertek UK and Ronan's return to New Zealand further undermines the Defendant's assertion of suspicious transportation. It is clear from this timeline that Ronan could not have personally delivered the sample to the UK, as he was still aboard the Vessel in Male at the relevant time. [40] The discrepancy between Lisa Powell's recollection and the actual events as they unfolded is significant. It suggests that her memory of the events may be flawed or incomplete, casting doubt on the Defendant's narrative of suspect circumstances. The Court finds that the timeline of events, as established by verifiable facts, effectively counters the suggestion of dubious circumstances surrounding the sample's transportation to Intertek UK. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 [41] In light of this analysis, the Court concludes that the Defendant's claim regarding the transportation of the Test 1 sample lacks sufficient grounding in factual evidence. The timeline discrepancies point towards a more innocuous explanation for the sample's journey to Intertek UK, thereby preserving the integrity and credibility of the sample and its subsequent analysis. [42] The Court also observes that the largest quantity of fuel uplifted at the RLYC was loaded into the Starboard Tank. Combining this fact with Ronan’s testimony about the origin of the Test 1 sample supports the Plaintiffs’ claim that the contaminated fuel originated from the RLYC. [43] The Defendant places significant reliance on the fact that the fuel sample met the lubricity standards under ISO 8217/2017 DMA Standards, suggesting that this compliance implies the fuel was not detrimental to the Vessel’s engine. This perspective, while focusing on one aspect of the test results, fails to account for the comprehensive nature of the fuel quality assessment as required under the said standards. [44] The ISO 8217/2017 DMA Standards encompass a range of parameters to ascertain fuel quality, not limited to lubricity alone. Lubricity, while a crucial factor in assessing fuel quality, particularly for the smooth operation of engine components, is not the sole determinant of a fuel's suitability for use in maritime engines. The appearance of S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 the fuel, particularly its 'cloudy, free water & suspended matter' condition as reported in the test results, is a significant deviation from the expected norm and indicates potential issues. [45] The presence of free water and suspended matter in the fuel is especially concerning. Water contamination in fuel can lead to various detrimental effects on a vessel's engine, such as corrosion and the breakdown of the fuel's inherent lubricating properties, despite it meeting the lubricity standards in a laboratory setting. The real-world impact of such contamination, especially in the high-stress operational environment of a maritime engine, can be substantially different from controlled test conditions. [46] Paul Kennet's testimony underscores the concern for contamination. As the customer service representative, his recollection of the conversation about the fuel sample suggests an awareness of potential issues beyond the mere lubricity. This supports the Plaintiffs' assertion that there was a suspicion of contamination, corroborating their claim that the fuel was not merely substandard in appearance but potentially harmful to the Vessel's engine. [47] Moreover, the Defendant's argument overlooks the broader context in which these test results are situated. The Plaintiffs have presented a cohesive narrative, supported by various pieces of evidence, including expert testimonies and independent assessments, that consistently point to fuel S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 contamination as a significant factor in the damage to the Vessel’s engine. The mere compliance with one aspect of the ISO standards, in this case, lubricity, does not automatically negate the potential harm caused by other aspects of the fuel's quality, particularly when such compliance is juxtaposed against clear evidence of contamination. [48] Independent observations from the H&M Surveyor, Domnic, who visually confirmed water in the fuel samples taken on the same day as the Test 1 sample, further corroborate the presence of water contamination. [49] On the day the Test 1 sample was taken, Domnic conducted a visual inspection of the fuel samples. His observations led to the conclusion that there was apparent water contamination. This is not a trivial determination. I accept that a seasoned surveyor’s ability to visually identify water in fuel relies on specific indicators such as the fuel's opacity, colour, and any visible separation of substances within the sample. The presence of water in fuel can manifest as a cloudy appearance, often accompanied by visible droplets or a distinct layer of water, which is markedly different from the clear, homogenous appearance expected of uncontaminated fuel. [50] Domnic’s decision to forgo further laboratory testing of these samples is reasonable. In the field of maritime surveying, a decision like this would not be made lightly S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 when predicated on the belief that the evidence of contamination is so manifest that additional tests would be redundant. [51] Moreover, the testimony of Domnic and other independent service providers, including the local service engineer Athif and Sean Griffin, consistently points to the contamination of the fuel as the probable cause of the damage to the Vessel’s engines. This is a significant point, as it directly counters the Defendant's claim that the fuel, even if from the Starboard Tank and supplied by the RLYC, could not have been the cause of the damage due to its compliance with the lubricity standard. [52] Domnic’s detailed analysis, supported by visual and technical inspection, provides a compelling argument that the damage was indeed due to contaminated fuel. His observations of heavy smoking, breakdown of lubrication, and subsequent engine and electrical issues corroborate the Plaintiffs' claims. Additionally, the local service engineer Athif’s findings, which include observations of thick grey to black fuel and engine damage consistent with water contamination, further reinforce this conclusion. [53] In conclusion, the Defendant’s arguments regarding Fuel Test Report No. 1 and its implications on engine damage are found to be lacking in substance and finds in favour of the Plaintiffs on this point. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 Fuel Test Report No. 2 [54] The Defendant argued that the absence of water in the Storage tanks (including the Starboard Tank), which were “Bright & Clear” according to Test 2 results, implies no contamination from these tanks, while the presence of exceptionally high water content (75%) in the Day Tank, three days after ceasing to use the Starboard Tank, suggests the contamination originated elsewhere in the fuel system, not from the fuel supplied by the RLYC. However, this argument fails to consider the entire sequence of events and the operational dynamics of the Vessel's fuel system. [55] The Defendant's contention that the absence of water in the Starboard Tank at the time of testing disproves its initial contamination overlooks crucial operational aspects of the Vessel's fuel management. [56] Firstly, the fact that no water was detected in the Starboard Tank during the testing does not irrefutably establish that it was never contaminated. In maritime fuel systems, the fuel from storage tanks, like the Starboard Tank, is typically consumed or transferred over time, especially during long voyages. By the time the samples were taken, it is entirely plausible that any contaminated fuel initially in the Starboard Tank had been used up or removed, thereby explaining its 'clear and bright' appearance in the Test 2 results. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 [57] Moreover, the significant water contamination found in the Day Tank is a pivotal piece of evidence. The Day Tank had been receiving fuel from the Starboard Tank until it was quarantined on 13.7.2018. The detection of a 75% water content in the Day Tank, while the other tanks, including the Centre and Port Tanks, showed no such contamination, is telling. This disparity raises a legitimate question: how could the Day Tank exhibit such severe contamination if it was being fed by the same fuel system as the other tanks, which were found to be uncontaminated? This inconsistency points towards the Starboard Tank as the likely source of the contamination. [58] The Defendant's suggestion that the water contamination must have originated from another part of the fuel system after fuel was uplifted from the Storage Tanks is not sufficiently substantiated. This argument fails to address the absence of any reported issues with the Vessel's performance after the Starboard Tank was quarantined and the Vessel ceased drawing fuel from it. If the contamination had originated from an external source within the fuel system, she would be reasonable to expect continued or recurring issues, which was not the case. [59] The Defendant's assertion that the fuel contamination did not originate from the fuel supplied by the RLYC is significantly challenged by both the operational history of the Vessel and the sequence of events following the contamination incident. Prior to the bunkering at the RLYC, S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 the Vessel had successfully completed the Langkawi- Phuket-Langkawi route using fuel from the Day Tank without any reported issues, indicating that the fuel system was functioning effectively until it received fuel from the RLYC. This normal operation was disrupted by the sudden emergence of contamination issues post-bunkering, suggesting a direct correlation between the RLYC fuel uplift and the onset of these problems. Further supporting this assertion is the fact that after the Starboard Tank, which received the bulk of the RLYC fuel, was quarantined, no further performance issues were reported, and the Vessel completed her journey uneventfully. Additionally, the lack of defects in the Day Tank, as confirmed by Athif, aligns with the Plaintiffs' position that the contaminated fuel likely originated from the Starboard Tank, which was primarily filled at the RLYC. [60] Therefore, considering the entire body of evidence, including the timeline of events, the dynamics of the fuel system, and the resolution of issues after isolating the Starboard Tank, it is more plausible that the source of contamination was the fuel from the RLYC, as this aligns with both the Vessel's operational history and the chronological sequence of events. [61] The Defendant argued, primarily relying on the visual observation of the Starboard Tank being “Clear & Bright” that there is no presence of any contamination in the Starboard Tank. This notably overlooks the intricacies of S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 maritime fuel analysis, particularly concerning sodium chloride contamination. The Test 2 report, while addressing the presence of water, did not extend its analysis to include testing for sodium chloride. This omission is critical in the context of this case. [62] In maritime operations, sodium chloride (salt) contamination in fuel can be as detrimental as water contamination, if not more so, due to its corrosive nature and the ability to cause significant damage to engine components over time. Salt contamination, unlike water, may not be readily apparent through visual inspection alone. Therefore, the fact that the Starboard Tank appeared “Clear & Bright” in Test 2 does not conclusively indicate the absence of sodium chloride contamination. [63] The Defendant's reliance on the absence of visible water contamination to assert that the fuel was free from all contamination is thus fundamentally flawed. The nature of sodium chloride contamination requires specific testing to detect its presence, which was not conducted in Test 2. Without such testing, any assertion regarding the absence of salt contamination is speculative and unsupported by the evidence. [64] In summary, while the Test 2 report indicated that the Day Tank was contaminated with water and the other tanks appeared clear, this does not conclusively prove the Defendant's claim that the contamination did not originate S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 from the fuel supplied by the RLYC. The operational dynamics of the Vessel's fuel system, the cessation of issues following the quarantine of the Starboard Tank, and the absence of sodium chloride testing in the Test 2 report collectively support the Plaintiffs' contention that the contaminated fuel likely originated from the Starboard Tank and, by extension, from the RLYC. Fuel Test Report No. 3 [65] The Defendant's critique of Fuel Test Report No. 3 primarily hinges on the delayed sodium testing, the purported uncertainty regarding the source of the samples, and Ronan's alleged lack of objectivity in focusing on the Starboard Tank. The Defendant argues that Ronan only instructed a sodium test two years after initially suspecting saltwater contamination and had no direct knowledge of the sample origins. They contend that Ronan's fixation on establishing contamination in the Starboard Tank led to a lack of impartiality in his approach, as evidenced by his disagreement with the test results which indicated sodium content derived from the water layer, not the fuel. This, according to the Defendant, contrasts with the approach of the H&M Surveyor, Domnic, who instructed comprehensive testing of all fuel tanks, leading to Test 2, which they argue is the only independent test with a verifiable sample source and which clears the Starboard Tank of contamination. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 [66] However, the Plaintiffs present a robust counter-argument supported by detailed evidence. The samples for Test 3, labeled “Day Sump Tank” and “STBD Day Tank,” were explicitly identified by Ronan as being taken directly from the Starboard Tank and the Day Tank on the day of the incident, 13.7.2018. This identification is corroborated by Exhibit B-5(a), which shows Sample Nos. 3 and 4 marked as “DAY TANK (STBD TANK)” taken on 13.7.2018, and the Starboard Tank sample taken around 17.7.2018. Ronan's clarification that there is no “Starboard Day Tank” and Domnic's statement that there's no “Day Sump Tank” further affirm the accuracy of the sample labeling. [67] Test 3's findings of high levels of water and sodium in the Starboard Tank sample, with 50% free water and 10700 ppm of sodium, align with previous tests and the Plaintiffs' narrative. Test 1 had already identified the Starboard Tank sample as “Cloudy, Free Water & Suspended Matter,” and Test 2 found an exceptionally high water content of 75% in the Day Tank, which contained residual Starboard Tank fuel. These consistent results across multiple tests strengthen the Plaintiffs' assertion of contamination in the Starboard Tank fuel. [68] Ronan's theory about saltwater contamination being held in the diesel fuel is not directly contradicted by Nurmaudin's testimony. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 [69] Ronan's theory posits that saltwater contamination, once introduced into the diesel fuel, could be held within it, potentially leading to issues in the Vessel's fuel system. This theory is crucial as it underpins the Plaintiffs' argument regarding the source of the contamination. Nurmaudin, in his capacity as a chemist conducting the fuel tests, acknowledged that while sodium is typically tested in the water portion of a fuel sample due to its affinity for aqueous solutions, he did not completely rule out the presence of sodium in the diesel portion. This acknowledgment is vital as it leaves room for the possibility that the diesel fuel in the Starboard Tank could have been contaminated with sodium, supporting Ronan's theory. [70] Furthermore, the operational history of the Vessel lends credence to this theory. Prior to the incident, the Vessel had been operating without reported fuel-related issues. The emergence of problems coincided with the use of fuel from the Starboard Tank, which had been filled at the RLYC. Crucially, after the Starboard Tank was quarantined and ceased being used, the Vessel reportedly did not experience further issues, suggesting a direct link between the fuel from this tank and the problems encountered. [71] The results from Fuel Test Reports Nos. 1 and 2 further support this narrative. Test 1 identified the Starboard Tank sample as “Cloudy, Free Water & Suspended Matter,” while Test 2 revealed an exceptionally high water content in the Day Tank containing residual fuel from the Starboard Tank. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 These findings suggest a pattern of contamination originating from the Starboard Tank. [72] Therefore, considering Nurmaudin's testimony in conjunction with the operational history of the Vessel and the results of the fuel tests, a compelling case is formed supporting the Plaintiffs' claim. The possibility that sodium contamination could be present in the diesel fuel aligns with the sequence of events and test results, all pointing towards the Starboard Tank, filled at the RLYC, as the likely source of the saltwater contamination. This understanding is critical in evaluating the validity of the Plaintiffs' position in light of the evidence presented. [73] Therefore, the evidence presented by the Plaintiffs, encompassing consistent results from multiple fuel tests and corroborative witness testimonies, forms a cohesive narrative that effectively counters the Defendant's claims regarding Fuel Test Report No. 3, reinforcing their argument that the Starboard Tank, filled at the RLYC, was the actual source of the fuel contamination. Contaminated Fuel Caused damage The Plaintiffs’ contentions [74] The Plaintiffs contended that the damage to the Vessel was caused by contaminated fuel onboard. Their evidence is that the H&M Surveyor, Domnic Alexander, concluded, S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 based on his independent inspection and narrative provided, that the probable cause of the engine damage was contaminated fuel. The Plaintiffs further contended that local service engineer Athif observed thick grey to black fuel, indicative of contamination by water, which he asserted caused engine damage. [75] In their submissions, the Plaintiffs highlighted that the analysis of Sean Griffin, the electrical mechanical engineer, post-fuel incident inspection confirmed that water in the fuel system led to speed overruns, causing engine damage. [76] The Plaintiffs maintained that Dominic the H&M Surveyor provided a report concluding that the cause of the damage to both the Main Engine and Generator Engine was inferior fuel quality. They contended that his assessment linked heavy smoking from the engine exhaust, breakdown in lubrication, and irregular functioning of the Fuel Injection Pump and governor to contaminated fuel. [77] Further, the Plaintiffs submitted that Athif, as an independent witness, confirmed the fuel contamination and concluded that this led to the engine damage. They also maintained that Sean Griffin, in his professional capacity, deduced that the governor malfunction, a common cause of overspeed, was due to fuel contamination. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 36 [78] It is also submitted by the Plaintiffs that the Defendant’s expert, KJ Heer, agreed that water in fuel causes incomplete combustion, damaging the Vessel engine. [79] The Plaintiffs also argued that Domnic’s independent evidence supported the assertion that seawater ingress into the Vessel was not feasible. In contrast, the Defendant’s expert, KJ Heer, was unable to sustain his hypothesis of water ingress through a leak in the fuel system or a water- cooled heat exchanger, primarily due to his lack of physical inspection of the Vessel and the absence of a fuel cooler on the Vessel. Therefore, the Plaintiffs concluded that the only plausible cause of the Vessel's damage was the contaminated fuel. The Defendant’s contentions [80] The Defendant contended that the Plaintiffs' claim of saltwater in the fuel causing the initial overspeed of the Vessel's main engine on 13.7.2018 was unsubstantiated. They maintained that Domnic, engaged to survey the Vessel, did not inspect the main engine or the governor and fuel injection system, which were already replaced. The Defendant submitted that Domnic acknowledged the possibility of governor or fuel injection system malfunction due to wear and tear, rather than fuel contamination. [81] Furthermore, it is submitted by the Defendant that Domnic did not inspect the electrical systems and suggested that S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 37 the electrical components could have been damaged by exposure to water from a burst water pipe, not necessarily from overspeed. The Defendant also contended that Sean Griffin, who inspected the Vessel in Cochin, focused on electrical issues and was not involved in investigating the cause of the overspeed. They maintained that Sean Griffin's opinions on the cause of the overspeed should be rejected due to his close personal and business relationship with Ronan, the Plaintiff, and his lack of direct knowledge of the fuel injection system and governor state during the incident. Analysis and findings [82] The Court’s analysis of the Plaintiffs and the Defendant’s contentions are given below. Evidence of the H&M Surveyor (Domnic) [83] In determining the cause of the damage to the Vessel, the Court carefully examined the evidence provided by the H&M Surveyor, Domnic Alexander, an independent expert appointed by the Vessel's H&M insurers, Charles Taylor Marine. His task was to assess the nature and extent of any damage sustained to the Main Engine and Generator Engine during the Vessel's journey from Langkawi, Malaysia to Male, via Cochin, India, and back. [84] Domnic’s findings, as outlined in his Survey Report dated 30.11.2018 and Updated Survey Report dated 1.6.2019, S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 38 are pivotal to understanding the cause of the damage. His conclusion that the damage to both the Main Engine and Generator Engine was due to inferior fuel quality is based on a comprehensive analysis of physical examinations and various records. This conclusion is supported by several key observations: a) The heavy smoking observed from the engine's exhaust, which indicates a breakdown in lubrication, causing excessive wear and tear of the Fuel Injectors and Fuel Injection Pump. This breakdown, he posits, is a result of the fuel being contaminated with water, compromising its lubricating properties essential for these components. b) The malfunctioning Fuel Injector led to fuel dripping into the combustion chamber, contaminating the lubricating oil and causing an overflow of oil mixed with fuel. c) Any irregularities in the functioning of the Fuel Injection Pump would inadvertently affect the governor's operation, leading to engine overspeeds. This overspeeding not only stressed the engine but also drove the attached alternator to generate high current/voltage, damaging electrical components like the AVR. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 39 d) In a bid to reach safety, the crew overused the Main Engine and Generator Engine, exacerbating the wear and tear. [85] Furthermore, Domnic’s investigation on 1.6.2019, revealed evidence of corrosion on the cylinder head, scoring marks on the cylinder liner, and a seized fuel injection pump. These findings corroborate the theory of lubrication breakdown due to inferior fuel quality. Domnic’s experience with a container vessel in 2019, which suffered similar issues due to poor fuel quality, lends further credibility to his conclusions. [86] Domnic's findings are corroborated by other experts and eyewitness testimonies. For instance, the observations of Sean Griffin and the reports from the crew support theory of fuel contamination leading to mechanical failures. The overspeed of the engine on 13.7.2018, as testified by crew member Gunther and detailed in Ronan's statement, further strengthens this conclusion. The fact that the engine revved at 3,000 RPM in the high seas, beyond its normal operating range, is indicative of a governor malfunction, which, as per the evidence, was likely caused by contaminated fuel affecting the Fuel Injection Pump. [87] The Defendant’s contention that the damage could be attributed to maintenance issues or wear and tear is noted. However, the Court finds the evidence supporting this claim less persuasive in comparison to the extensive and detailed S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 40 evidence pointing towards fuel contamination. While it is acknowledged that Domnic did not personally inspect the damage, as much of it had been repaired, the consistency of the reports and testimonies he relied on lends credibility to his conclusions. His assessments were informed by the crew’s investigations, discussions with local technicians, and the observations of electrical engineer Sean Griffin. The consistency of these accounts with his findings strengthens the conclusion that the Vessel's damage was due to fuel contamination. [88] Additionally, the Defendant’s assertion that the damage to the electrical systems could have been caused by exposure to water from a burst water pipe is not sufficiently substantiated. The more plausible explanation, in line with Domnic's findings and the overall evidence, is that the electrical damage was a secondary effect of the engine overspeed caused by the fuel contamination. [89] In summary, the Court finds that the comprehensive analysis and conclusions drawn by the H&M Surveyor, Domnic Alexander, provide a convincing and coherent argument supporting the plaintiff's claim. The damage to the Main Engine and Generator Engine of the Vessel was caused by contaminated fuel, specifically diesel fuel mixed with saltwater. This conclusion is based on a detailed examination of the Vessel's condition, the nature of the damage observed, and the expert's corroborated observations and experience. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 41 Evidence of Athif [90] Athif, an independent MTU technician from Male, Maldives, conducted an inspection of the Vessel's engines. His observations and conclusions play a crucial role in this determination. [91] Athif's testimony, as noted in his report dated 9.9.2018, provides a detailed and technical explanation of the Vessel's engine issues following the fuel contamination incident. His observations and conclusions are grounded in his expertise as an engineer specialising in yacht support. Notably, Athif's analysis is based on a visual inspection and the smell of the fuel, both of which led him to unequivocally confirm that the fuel onboard the Vessel was badly contaminated. This method of assessment, though rudimentary, lends credibility to his findings. [92] The Court pays special attention to Athif's explanation of the specific mechanical reactions resulting from the contaminated fuel. He described how the engine, upon being restarted after cleaning the fuel filters and changing the fuel, went into overspeed, causing unexpected damages. This detail is crucial as it directly links the engine's malfunction to the contaminated fuel, corroborating the Plaintiffs' claim. Furthermore, Athif elucidated how the contaminated fuel likely caused seizure in the Injection Pump Plungers, jamming the rack and rendering the governor unable to control the engine speed. This technical S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 42 breakdown of the engine's reaction to the contaminated fuel is a compelling piece of evidence supporting the Plaintiffs’ case. [93] Additionally, Athif's report elaborates on the broader impacts of the contaminated fuel on the Vessel's engine, including erratic running with a knocking sound and the increase in engine oil level due to fuel dripping into the cylinders. These observations are not only indicative of fuel contamination but also align with the symptoms of engine damage typically expected in such scenarios. [94] The Defendant’s contention raises several points regarding Athif's inspection and conclusions. The Defendant highlights that Athif's inspection was based on his observations and information provided by the crew, and that the decision to replace parts was made by the crew, not necessarily because it was the only option but due to the lack of authorised service centres in the Maldives. [95] Moreover, the Defendant questions the preservation of the original governor and fuel injectors and injector pumps, suggesting a lack of evidence regarding their condition. Additionally, the Defendant points out that Athif's report was prepared significantly later than the events in question and that Athif's conclusion about the fuel being contaminated with jet fuel was based on its smell, rather than a confirmed presence of water. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 43 [96] In considering these contentions, the Court acknowledges the potential limitations in Athif's inspection and report. However, the Court also recognizes the immediacy and practicality of the decisions made by the crew in response to the Vessel's condition. Athif's observations, along with his experience and expertise, lend substantial weight to the Plaintiffs' case. His findings regarding the main engine's condition, the need for part replacements, and the nature of the damage are in line with the symptoms of fuel contamination. [97] While Athif's report may have been prepared later, his contemporaneous actions and decisions at the time of inspection are indicative of his professional judgment regarding the Vessel's condition. The fact that Athif suspected jet fuel contamination based on smell does not diminish the plausibility of fuel contamination, especially considering his other observations consistent with a fuel contamination scenario in general. [98] The Court also acknowledges the Defendant’s argument concerning Miru Enterprise's lack of jet fuel provision to the RLYC Marina. While this raises questions about the RLYC’s fuel being the source of the contamination, it does not necessarily negate the possibility of the Vessel's fuel being contaminated at some point in her supply chain. [99] In sum, the Court finds Athif's testimony and report to be a significant and credible source of evidence. His independent S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 44 status, combined with his professional expertise and detailed account of the engine's condition and behavior following the contamination incident, strongly supports the Plaintiffs' claim. The evidence presented by Athif, particularly his technical analysis of the engine's response to the contaminated fuel, persuasively indicates that the damage to the Vessel was indeed caused by contaminated fuel. Evidence of Sean Griffin [100] The Court turns its attention to the evidence provided by Sean Griffin. His expert analysis, conducted following the fuel incident, provides crucial insights into the mechanical and operational aspects of the Vessel's engines. His explanation of engine overspeed, a condition where the engine operates beyond its specified range, is a key element in understanding the cause of the damage. According to him, the most common cause of overspeed is a malfunction in the governor located within the engine's fuel pump. He further states that this malfunction can lead to significant and costly damage, often resulting in the self- destruction of diesel engines. [101] Sean Griffin's assessment that the mechanical governor, a crucial component for controlling engine speed, likely failed due to fuel contamination is particularly informative. His rationale is grounded in his extensive experience with diesel engines, where he notes that such governors, composed of S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 45 weights and springs, are susceptible to failure if exposed to corrosive elements like saltwater. This is a critical point, as it directly connects the observed engine malfunction to the possibility of contaminated fuel. [102] Sean Griffin's inspection also revealed significant damage to various vessel parts, including the electrical components and the Northern Lights generator. Specifically, the Vessel suffered defects in a 120 Amp alternator AVR, a Diode splitter 120 Am, and a blown 300 amp DC fuse. More critically, the generator was found to have seized, indicating a potential for catastrophic system breakdown if not immediately replaced. These findings, detailed in Sean Griffin's report, underscore the extent of the damage sustained by the Vessel. [103] The Court notes Sean Griffin’s unconventional but telling method of examining the fuel samples provided by Ronan. By tasting the fuel, Sean Griffin detected the presence of salt, which substantiates the claim of fuel contamination. While not a standard scientific test, this practical approach, combined with his technical expertise, lends weight to his conclusions. [104] Moreover, Sean Griffin's in-depth familiarity with the Vessel, gained through his involvement in her commissioning, sea trials, and mechanical and electrical systems, enhances the credibility of his assessment. His understanding of the Vessel's specific configurations and operations provides a S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 46 solid foundation for his conclusions regarding the cause of the engine damage. [105] Additionally, the evidence presented does not solely rely on Sean Griffin's testimony. The broader context, including the timeline of events and the absence of similar incidents during the Vessel's previous voyages, reinforces the likelihood that the contaminated fuel acquired at the RLYC Marina fuel pump was the source of the problem. The correlation between the fueling at this specific location and the subsequent engine and electrical issues presents a compelling argument supporting the Plaintiffs’ case. [106] The Defendant points out that Sean Griffin's primary task was to address electrical issues and not the engine's mechanical failures. While this is true, it does not negate his capacity to provide an informed opinion on the cause of the overspeed and subsequent damage. His background in power generation and diesel engines qualifies him to make such assessments, even if his immediate task was focused on electrical repairs. Moreover, his inability to physically inspect the failed governor, as it had been replaced prior to his examination, does not significantly undermine the validity of his conclusions, given the broader context of the Vessel's condition and the characteristics of the damage observed. [107] Regarding the contention about Sean Griffin's personal relationship with Ronan potentially biasing his evidence, the S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 47 Court acknowledges this relationship but also notes the absence of direct evidence suggesting that this relationship influenced his professional judgment in this matter. Expert testimony, even from individuals with personal connections, is not automatically disqualified but must be weighed with a consideration of potential biases. In this case, Sean Griffin's professional experience and the logical coherence of his analysis mitigate concerns about bias. [108] In conclusion, the Court finds Sean Griffin's expert testimony and analysis to be both reliable and persuasive, providing a coherent explanation for the engine overspeed and subsequent damage to the Vessel. This testimony, coupled with the detection of saltwater in the fuel, substantiates the Plaintiffs' claim that the damage was caused by contaminated fuel. The Defendant’s attempts to discredit this evidence are insufficient to override the compelling narrative established by Sean Griffin's expertise and the corroborating circumstantial evidence. KJ Heer’s expert evidence [109] The analysis of KJ Heer, as outlined in his report entitled “Technical Report Regarding the Claim against Langkawi Yacth Club Berhad” dated 11.12.2020 (“the KJH Technical Report”) provides valuable insight into the effects of water contamination in fuel. He concedes that the presence of water in the fuel can lead to incomplete combustion, a condition that is known to potentially cause engine failure. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 48 This acknowledgment is significant as it aligns with the fundamental argument of the Plaintiffs regarding the cause of the damage to the Vessel. [110] The Court notes two critical pieces of evidence that bolster KJ Heer's concession: firstly, the observation by the crew of significant smoke from the engine exhaust, and secondly, the results of Test 2. The presence of “white smoke,” which KJ Heer identifies as steam indicative of water during the combustion process, is a compelling indicator of water contamination in the fuel system. This observation is critical as it directly correlates the presence of water in the fuel with the malfunction observed in the Vessel's engine. [111] Furthermore, the Test 2 results, which revealed an exceptionally high water content in the fuel sample from the Day Tank, substantiate the claim of water contamination beyond the specified limits. KJ Heer's reliance on these results to assert that the Day Tank was contaminated with water is particularly telling. It suggests a direct link between the contaminated fuel and the engine damage, supporting the Plaintiffs' claim. Conclusion [112] In conclusion, the Court finds that the Plaintiffs have met their burden of proof. The preponderance of evidence, including expert testimonies, independent analyses, and physical observations, leads to the inescapable conclusion S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 49 that the damage to the Vessel was indeed caused by contaminated fuel, specifically diesel fuel mixed with saltwater. The Defendant’s arguments, while raising potential alternatives, do not sufficiently undermine the compelling and consistent body of evidence presented by the Plaintiffs. The convergence of this evidence, particularly the detailed and corroborative nature of the testing results and expert analyses, firmly establishes the Plaintiffs' case. Therefore, the Court concludes that the damage was caused by contaminated fuel. WHETHER THE DAMAGE COULD HAVE BEEN SUSTAINED BY A CAUSE(S) OTHER THAN CONTAMINATED FUEL FROM THE RLYC MARINA FUEL PUMP THAT COULD NOT HAVE BEEN WITHIN THE REASONABLE CONTEMPLATION AND/OR CONTROL OF THE DEFENDANT No other probable cause of contamination [113] The Defendant posited that the Vessel damage might have been caused by factors other than contaminated fuel, yet failed to plead any alternative probable cause. In contrast, the Plaintiffs provide a coherent and convincing narrative supported by substantial evidence, asserting that the damage was indeed due to contaminated fuel. [114] The Vessel, a Trintella A constructed at the Van De Stadt yard in Holland and classified under Lloyds A1Y category, has been described as robust and sturdy, having voyaged S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 50 over 30,000 nautical miles since her purchase in 2015. Ronan's testimony asserts that the Vessel was maintained in pristine condition through regular and annual maintenance at reputable shipyards, with all maintenance activities diligently recorded in the Vessel’s log and substantiated by corresponding invoices. This meticulous maintenance regime substantially diminishes the likelihood of vessel damage due to factors other than fuel contamination. [115] Furthermore, the integrity of the Vessel's fuel tanks was thoroughly examined and verified by the Domnic, H&M Surveyor. His inspection covered the underwater hull, Day Tank, and bunkering point, all found to be in good condition with no recent repairs or damage that could compromise the tanks' integrity. Domnic’s observations are critical, as they effectively rule out tank defects or damage as a source of seawater ingress into the fuel system. Additionally, his assessment that there was no evidence of unwanted list or trim due to compromised tanks further strengthens this conclusion. [116] Ronan's evidence also negates the possibility of seawater ingress into the fuel tanks before the incident. He underscores the Vessel's robust design, which includes high levels of redundancy in all systems, making seawater ingress highly improbable. This assertion is bolstered by Ronan's meticulous approach to refueling operations and S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 51 the astonishing amount of water found in the Starboard Tank, suggesting significant contamination. [117] In contrast, the Defendant’s expert, KJ Heer, fails to provide a viable alternative explanation for the water ingress. His hypotheses regarding potential leaks in the fuel system or issues with the water-cooled heat exchanger are not substantiated by physical inspection or concrete evidence. This lack of direct evidence from the Defendant’s expert, combined with the Plaintiffs' comprehensive and consistent testimonies, leads this Court to conclude that the only probable cause for the Vessel's damage was contaminated fuel, specifically diesel fuel mixed with saltwater. The Plaintiffs have successfully demonstrated, through detailed maintenance records, expert testimonies, and logical argumentation, that no other cause is plausible under the circumstances presented. WHETHER THE RLYC SUPPLIED THE SAID CONTAMINATED FUEL FROM THE RLYC MARINA FUEL PUMP [118] The overarching contention of the Plaintiffs is that the diesel fuel on the Vessel was not contaminated at sea during her voyage from Langkawi to Male or it was from any residual fuel already in her storage tanks but instead came from the RLYC Marina fuel pump. The two possible sources of contamination advanced by the Plaintiffs would be the fuel already stored in the RLYC’s skid tanks or the ingress of seawater into the fuel delivery line at the RYLC Marina. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 52 Either way, the Plaintiffs’ contention is that the RLYC supplied the contaminated fuel from the RLYC Marina fuel pump. The Court will analyse the evidence to determine whether this contention is true. First, it is useful to lay out the specific contentions of the Plaintiffs and the Defendant in relation to this issue. The Plaintiffs’ contentions [119] The Plaintiffs submitted that the independent, direct, and indirect evidence presented consistently demonstrates that the contaminated fuel likely originated from the RLYC Marina fuel pump, as the engine speed overruns and the casualty occurred only after the Vessel bunkered at the RLYC and began using the fuel from the Starboard Tank. The Plaintiffs argued that the Defendant’s contentions that the Vessel had bunkered from at least two other sources before the incident, that the incident occurred due to the Vessel being at sea for 8-9 days after bunkering at the RLYC, that the Vessel was burning fuel for about 24 hours before the smoking incident, and that the crew's actions or inactions suggest other reasons for the engine damage, are inherently improbable. In this regard, the Plaintiffs contended: a) During her annual maintenance at the Northern Shipyard from 25.10.2017 to 21.5.2018, the Vessel underwent thorough fuel tank cleaning, fuel system inspection, and comprehensive testing, ensuring her S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 53 perfect condition for the 1,600 nautical mile voyage to Male, Maldives, as confirmed by Ronan and substantiated by the Northern Shipyard's letter and Ronan’s evidence in cross-examination on 2.2.2021. b) After thorough cleaning and testing, the Vessel bunkered 1,000 litres of high-quality, uncontaminated fuel at Northern Shipyard on 21.5.2018 and an additional 2,600 litres on 22.5.2018, confirmed by Ronan's visual inspection and supported by the absence of contradictory evidence regarding the fuel's condition and quality. c) During the sea trial from Langkawi to Yacht Haven Marina Phuket and back, from 26.5.2018 to 27.6.2018, the Vessel's fuel system functioned flawlessly with no water detected and the MTU main engine performed impeccably, as evidenced by maintenance logs and videos showing a clean engine with no emission of white smoke. d) After returning to Langkawi on 27.6.2018 and staying until 4.7.2018, the Vessel refueled at the RLYC, adding 1,615.85 litres primarily to the Starboard Tank, which had only 100 litres left from Northern Shipyard fuel, contributing to a total fuel upliftment of 5,200 litres over the periods of 21.5.2018, 22.5.2018, and 4.7.2018 at various tanks. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 54 e) No sampling or testing of the RLYC fuel was conducted before or after bunkering, as acknowledged by Ronan and Domnic, with the procedures for merchant marine industry not applicable to private yachts and no obligations on Ronan to visually check or sample the fuel, leading to the unanticipated discovery of contaminated fuel from a presumed reputable source like the RLYC. f) Only after departing Langkawi for Male on 4.7.2018 did the Vessel encountered severe engine and electrical system damage due to contaminated fuel from the Starboard Tank, confirmed by investigations in Male and Cochin, with subsequent voyages to Cochin and back to Langkawi being smooth yet with persistently low oil pressure due to the contamination. g) The Intertek sample tests showed a high sodium level of 10,700 ppm in the Starboard Tank's fuel (primarily loaded with the RLYC fuel) and 75% water contamination in the Day Tank (drawing mainly from the Starboard Tank), conclusively proving the presence of saltwater in the fuel in the Starboard Tank. h) Domnic, the H&M Engineering surveyor, after considering critical facts including the last fuel top-up at the RLYC Marina fuel pump on 4.7.2018 into the S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 55 Port and Starboard Tanks and the use of fuel from the Starboard Tank until the casualty, concluded that the contaminated fuel with saltwater must have come from the fuel uplifted at the RLYC on 4.7.2018, supported by the Vessel's mechanical and structural condition, Intertek test results showing saltwater in the fuel, and the absence of any other probable source of contamination. i) Domnic’s testimony confirmed that after inspecting the underwater hull, Day Tank, and bunkering point of the Vessel, all were found to be in good condition with no damage or recent repairs, indicating the integrity of the fuel tanks, which if compromised, would likely lead to overflow or list/trim, none of which were reported by the crew; additionally, the survey found the filling line closed and the cap intact, eliminating seawater entry through an open filling line. j) Ronan and Domnic’s evidence, alongside the inherent design of the Vessel dismisses any possibility of seawater ingress into the Vessel's fuel tanks during the passage to Male, with no hard weather conditions or system design flaws that could lead to such ingress; particularly, the filler points are well-sealed and personally checked by Ronan, further supported by the lack of physical inspection S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 56 by the Defendant’s expert, KJ Heer, and the absence of a fuel cooler on the Vessel. k) There is no evidence of any intervention by the crew that breaks the cause of damage to the Vessel from contaminated fuel burnt from the Starboard Tank. l) Despite Ronan's repeated requests to Tayfun (DW3), the RLYC's GM, for testing the fuel system and integrity of the RLYC Marina fuel pump, no surveys of fuel filters, lab analysis for saltwater contamination, full fuel and system check, or fuel delivery line pressure/vacuum test were conducted, leaving the quality of the RLYC fuel and the condition of its delivery system unverified and likely the source of the contaminated fuel. m) The Defendant has not provided conclusive evidence of the integrity and quality of the fuel supplied by Miru Enterprise, with no credible proof of pure diesel delivery without additives to the RLYC, and despite requests, no fuel batch certificates were provided to verify the absence of additives or contaminants in the fuel uplifted on 4.7.2018; furthermore, certificates from Malaysian Refining Company (MRC) Sdn Bhd and letters from Petronas and Jabatan Bomba do not confirm the quality or safety of the fuel, and the lack of testing or verification after delivery into the RLYC's S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 57 tanks leaves the quality of the fuel at the RLYC unverified. n) Based on sales receipts for fuel purchases at the RLYC Marina from 20.6.2018 to 21.7.2018, the Vessel fuel sale constituted 38.97% of the sales during that period, indicating that larger fuel quantities like this are more likely to draw in saltwater due to lower pressure in the delivery line, as opposed to smaller deliveries which are less likely to create such low pressure and subsequent saltwater ingress. o) The Sales Receipts from 20.6.2018 to 21.7.2020 show that most fuel purchases at the RLYC Marina during the relevant period were in small quantities, indicating these might not have been direct bunkering into vessels but possibly jerry can transactions, hence any contamination effects, likely from saltwater ingress in low-pressure situations, would be unnoticeable; this sales data does not disprove the possibility of the RLYC Marina fuel pump being contaminated at the time of the Vessel bunkering on 4.7.2018. [120] The Plaintiffs submitted that the poor upkeep, supervision and management of the RLYC bulk fuel installation and fuel pump by the RLYC caused the diesel fuel supplied to the Vessel to be contaminated. The Plaintiffs contended that S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 58 the Defendant was negligent in controlling, supervising, and managing the RLYC bulk fuel installation and fuel pump, particularly in respect of its duty to supply diesel fuel of good quality and reasonably fit for its purpose to its boats. This conclusion is drawn from multiple factors including the RLYC's lack of proper licensing, negligent management by its former General Manager, absence of regular maintenance of the fuel facilities, the Defendant’s indifferent response to contamination concerns, the Defendant’s delayed inspection of the Vessel, and the Defendant’s failure to comply with a Court order for Specific Discovery related to the fuel system's integrity. Specifically, it is contended by the Plaintiffs: a) It is undisputed that the RLYC, operated by the Defendant, lacked the requisite license to supply fuel at the time of the incident, as confirmed by a letter from Kementerian Perdagangan Dalam Negeri (“KPDN”) dated 18.2.2020, and the Defendant’s defence that Miru Enterprise, the actual supplier, had the necessary approvals does not extend this permit to the RLYC, with no proof of any other permit authorising the RLYC to supply fuel at the RLYC Marina. b) The former GM of the RLYC, Tayfun, demonstrated negligent management of the RLYC bulk fuel installation, evidenced by his lack of experience in marine fuel facility management, failure to S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 59 acknowledge or act upon initial alerts about possible fuel contamination, no detailed system review of the bulk fuel installation, inability to explain fuel sales suspension in 2019 or provide evidence of any system integrity tests, and neglecting to share fuel test reports with Ronan or check fuel filters on other boats. c) The evidence indicates that there was no regular maintenance of the RLYC's fuel tank facility and fuel delivery lines, with no records produced to confirm the integrity of the fuel pump maintained by a third- party contractor, and Tayfun's confirmation that fuel lines/tanks maintenance by the RLYC was not evidenced, nor was the Maintenance Manager responsible for these tasks called as a witness. d) From the outset of the fuel incident, Ronan diligently sought the Defendant’s cooperation to investigate potential fuel contamination, but the Defendant displayed complete disinterest and lack of care, ignoring initial alerts, showing reluctance to survey fuel filters or provide fuel batch certificates, and failing to conduct promised lab tests or provide results, indicating a dismissive attitude towards a serious complaint and potential legal claim. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 60 e) The Defendant was invited by Ronan to inspect the Vessel at Boustead Shipyard Langkawi to verify the claim of the RLYC fuel causing damage, but did not utilise this opportunity until September 2020, two years later, suggesting a lack of genuine interest in validating the Plaintiffs' claim and more of a delayed attempt to bolster its defence. f) Despite an order for Specific Discovery dated 17.2.2020, the Defendant failed to disclose documents verifying the integrity of the fuel tank and delivery system at the RLYC Marina, only providing partial discovery that did not attest to the legality, serviceability, and integrity of the RLYC fuel installation and system, leading to the presumption that full disclosure would have confirmed vulnerability to contamination. [121] The Plaintiffs disputes the Defendant’s argument that the contaminated fuel did not come from the RLYC Marina fuel pump, highlighting that other boats bunkering at the same pump without incident, the lack of additives in fuel according to Batch Certificates, the Petrotechnical report clearing the Defendant fuel of contamination, and the possibility of contamination occurring on the Vessel during fuel usage, are not sufficiently supported by evidence. In summary, the Plaintiffs’ contentions in this regard are: S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 61 a) The testimony of Asyraf (DW1) and Raden (DW4) about bunkering their vessels “Manta Blu” and “Gadis Pulao” without issues must be cautiously considered, as their fuel uplift dates of 19.7.2018 and 25.7.2016 are well after the incident and not contemporaneous, with no evidence to prove the fuel was the same as on 4.7.2018, no prior fuel sampling, significantly smaller fuel quantities uplifted, and lacking detailed evidence about their vessel's engine systems for a direct comparison with the Vessel. b) The Petrotechnical Report, which tested a fuel sample taken in November 2018 from a different batch than the one used by the Vessel in July 2018, cannot prove that the fuel supplied around 4.7.2018 was free from contamination, and its relevance to the case is questionable due to both the timing of the sample and the lack of evidence on the integrity of the sampling process, including the absence of a standard procedure at the RLYC for fuel contamination cases. c) The Fuel Batch Certificates, as testified by Maswadi (DW7) of Miru Enterprise, do not display salt content, thereby failing to negate the possibility of sodium contamination in the fuel supplied by Miru Enterprise, nor do they eliminate the chance of contamination occurring at the RLYC fuel installation or during the refueling process after delivery. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 62 d) Ronan firmly dismissed any possibility of contamination occurring within the Vessel's fuel system before returning to the Day Tank, describing it as a closed system where fuel conveyed directly from each injector unit to the Day Tank cannot pick up contaminants along the way. The Defendant’s contentions [122] It is submitted by the Defendant that the consistent supply pattern of Petronas diesel to the RLYC, the absence of contamination complaints from numerous other vessels fueling at the marina, and the findings of KJ Heer’s inspection refuting Ronan's hypothesis of saltwater contamination through the fuel delivery system, collectively indicate that the fuel system at the RLYC Marina was not contaminated with saltwater when the Vessel was fuelled. In summary, it was submitted: a) Maswadi confirmed that Miru Enterprise has been supplying Petronas diesel to the RLYC via road tanker since 2002, with delivery records showing a consistent supply pattern to the RLYC Marina’s skid tank around the time the Vessel bunkered fuel on 4.7.2018, including deliveries on 2.5.2018, 23.5.2018, 1.6.2018, 12.6.2018 (last batch before 4.7.2018), 22.7.2018, 13.8.2018, and 5.9.2018, and during June to August 2018, numerous vessels actively received fuel from the RLYC Marina, with a S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 63 total of 81 sale receipts accounting for 17,456 litres of diesel. b) Ronan does not question the quality of the fuel delivered to the RLYC's skid tank but hypothesises that the fuel became contaminated during delivery to the fuel pump through the delivery line, suggesting saltwater contamination via joints or pinholes in the pipeline; however, if this were true, all vessels fueling at the RLYC Marina would have experienced similar issues, as the fault in the delivery line would have been consistent. c) Between January 2018 and April 2019, there were about 751 instances of fuel uplifting at the RLYC’s fuel pump with no complaints of contamination, despite other vessels like “Manta Blu” and “Gadis Pulao” bunkering large quantities of fuel around the same time as the Vessel, contradicting the hypothesis of contaminated fuel originating from the RLYC Marina fuel pump. d) Ronan hypothesised that saltwater contamination in the fuel delivery system at the RLYC Marina occurred due to leaks and low pressure, but this was refuted by KJ Heer’s inspection, which found no evidence of such contamination, supported by tide table data and the absence of other complaints about fuel quality, leading to the conclusion that saltwater S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 64 did not contaminate the fuel system when the Vessel refueled. e) Ronan hypothesised that saltwater contamination in the fuel delivery system at the RLYC Marina occurred due to leaks and low pressure, but this was refuted by KJ Heer’s inspection, which found no evidence of such contamination, supported by tide table data and the absence of other complaints about fuel quality, leading to the conclusion that saltwater did not contaminate the fuel system when the Vessel refueled. [123] It is submitted by the Defendant that the Vessel’s fuel management and record-keeping are fundamentally flawed and unreliable, as demonstrated by Ronan's inconsistent and inaccurate statements regarding fuel tank capacities and usage, the unexplained excess of fuel, discrepancies in fuel uplifts and actual amounts at various checkpoints, and the lack of concrete evidence linking alleged fuel contamination to the RLYC, all pointing to a systemic issue in fuel tracking and a possible manipulation of facts, thereby questioning the accuracy of the Vessel’s fuel consumption and distribution records and demonstrating that the RLYC did not supply any contaminated diesel fuel to the Plaintiffs, but instead the Vessel picked up seawater during the voyage. In summary it was contended: S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 65 a) Ronan relied on Domnic's Survey Report to suggest contaminated fuel with saltwater from the RLYC Marina fuel pump caused damage to the Vessel, but this conclusion is questionable due to inaccurate facts provided by Ronan, including incorrect usage of the Starboard Tank and lack of objective bunkering records, leading to unreliable conclusions in the absence of proper documentation and consistent fuel usage evidence. b) The blueprint of the Vessel shows a Day Tank capacity of 127 litres, but Ronan's evidence about its usable capacity has varied, with figures of 123 litres in his undated statement, 106 litres in WS-PW1, 90 litres in WS2-PW2, and 96/97/100 litres in Ronan’s evidence in cross-examination, indicating inconsistencies and a lack of reliable record-keeping or a tendency to adjust figures as needed. c) There are substantial inconsistencies in Ronan's testimonies regarding the Vessel’s fuel consumption from May to July 2018, as seen in conflicting details about fuel uplift amounts at Northern Shipyard and CB Trading Fuel Barge, varying distributions across starboard, centre, and port storage tanks, discrepancies in reported burn rates and tank capacities, and contradictions between Ronan's multiple statements and recalculations, notably in relation to the fuel usage during voyages from S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 66 Langkawi to Phuket and onwards to Male, thereby questioning the credibility and accuracy of his account of the Vessel's fuel management. d) There is a doubt raised by the Defendant regarding Ronan's fuel management for the Vessel's voyage to Male, as he recorded a starting fuel capacity of 4490 litres (4400 in storage tanks and 90 in the Day Tank) but documented a total fuel usage and offloading of 5097.5 litres, which includes 3960 litres consumed by the main engine over 264 hours, 127.5 litres by the generator over 12.75 days, 60 litres drained following smoke detection on 13.7.2018, and 950 litres offloaded in Male, resulting in an unexplained excess of 607.5 litres, casting doubts on the accuracy of his calculations and fuel management, and underscoring the importance of missing Fuel Uplift Logs for clarifying this discrepancy. e) Discrepancies in Ronan's testimony about the Vessel’s fuel management, including claims of 600 to 700 litres of fuel in the isolated Starboard Tank conflicting with 950 litres being drained, the late emergence of water contamination after seven uplifts, the improbability of such a large volume of fuel being solely from the Starboard Tank when the Port Tank was dry, and the lack of similar contamination issues in the Port Tank or evidence of such issues at the RLYC Marina, all strongly suggest that the saltwater contamination found S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 67 in the Vessel's fuel system, which contradicted fuel capacity and management records, did not originate from the marina. Court’s analysis and findings Day Tank Capacity [124] The Defendant highlights apparent inconsistencies in Ronan's testimony regarding the usable capacity of the Day Tank, with figures varying from 90 to 123 litres. However, the focus must remain on the significance of these discrepancies in the context of the case's core issues. [125] Ronan's testimony, clarifies that the Day Tank, despite its blueprint capacity of 127 litres, typically accommodates about 97 litres per uplift cycle. This operational limitation is crucial in determining fuel consumption, which is central to the dispute. This materiality in the circumstances supersedes absolute precision in numerical data. As the 'balance of probabilities' is the standard of proof in civil cases, slight variations in Ronan's statements do not significantly diminish the credibility of his testimony regarding the operational usage of the Day Tank. [126] Therefore, while acknowledging the variations in Ronan's statements, these discrepancies do not undermine the material fact - that the Day Tank's practical usage in terms of fuel consumption calculations is around 97 litres per S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 68 cycle. This figure is more relevant than the maximum capacity or the various figures cited by Ronan in different statements. [127] Regarding the Defendant’s claim that these inconsistencies indicate a lack of record-keeping or opportunistic testimony, this assertion is speculative without concrete evidence. Variations in reported figures could reasonably occur due to operational factors, estimation errors, or other practical realities of managing fuel uplifts. [128] In conclusion, the Plaintiffs’ stance is strengthened by the material evidence on the Day Tank's operational capacity, as the Defendant’s focus on numerical inconsistencies fails to significantly dispute Ronan's testimony on its practical implications for fuel consumption. Fuel usage records of the Vessel from Northern Shipyard to Male is consistent [129] As for the issue of consistency of the fuel records of the Vessel, the evidence presented by the Plaintiffs convincingly establishes a coherent and logical narrative of the Vessel's fuel usage from Northern Shipyard to Male, effectively countering the Defendant’s assertions. [130] Firstly, regarding the initial fuel loading at the Northern Shipyard on 21.5.2018, there is consensus that 1,000 litres were loaded into the Centre Tank, with a subsequent S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 69 consumption of 113 litres during the mini sea trial, leaving a balance of 887 litres. The Defendant does not dispute these facts, establishing a baseline for the Vessel’s fuel management. [131] At the second checkpoint, the Defendant challenges the veracity of the fuel distribution, particularly the uplift of 2,600 litres from the Northern Shipyard barge on 22.5.2018. However, the Plaintiffs' evidence, supported by the Yacht Log and Ronan’s Undated Statement, clearly indicates that this fuel was indeed distributed between the Starboard and Port Tanks. This is further corroborated by Ronan's testimony. The Defendant’s claim of inconsistency in Ronan's statements regarding the fuel distribution is not substantiated when the contemporaneous records are considered. Ronan's detailed breakdown in WS2-PW1 of the fuel distribution post uplift, which aligns with the Vessel's operational requirements, demonstrates a logical and consistent fuel management approach, contrary to the Defendant’s assertion of fabrication or alteration of facts. [132] Moving to the events at Yacht Haven Marina in Phuket, Thailand, and the subsequent voyage to Langkawi, the Defendant argues that Ronan’s recollections of the fuel usage are contradictory. However, the consistency in Ronan’s Undated Statement and the later testimonies regarding the fuel burn of 780 litres during this period holds up under scrutiny. The Defendant’s assertion that Ronan's account in WS2-PW1, which details a different distribution S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 70 of fuel burn between the Starboard and Port Tanks, is self- serving, is not persuasive. It is reasonable to consider that Ronan’s more detailed recollection in WS2-PW1 is a result of a closer examination of the records and events, rather than an attempt to manipulate the facts. [133] The bunkering event at the RLYC on 4.7.2018 stands as a significant point in the narrative of the Vessel’s fuel management. The Plaintiffs' evidence and the testimony of Ronan consistently assert that 1,615.85 litres of fuel were uplifted, predominantly into the Starboard and Port Tanks, with the Centre Tank receiving a top-up. This is further supported by the Plaintiffs’ Notice of Demand, which specifically states that the fuel uplifted at the RLYC was directed “primarily” into the Starboard Tank. This underscores the consistency in the Vessel's fuel management approach, which had been previously established. [134] On the other hand, the Defendant challenges this narrative, particularly focusing on Ronan's recalculations presented in WS2-PW1. It contends that these recalculations are inconsistent with Ronan’s earlier Undated Statement. However, this argument does not find solid ground when considering the practicalities of maritime operations. The need for continuous adjustment and the dynamic nature of managing a vessel's fuel supply can often necessitate revisions in calculations and estimations. In this context, Ronan’s later, more detailed account in WS2-PW1 appears S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 71 as a refined understanding of the Vessel's fuel usage, rather than an inconsistency. [135] Moreover, the Defendant’s arguments regarding discrepancies in fuel burn rates and the speculative nature of the “white smoke” issue lack substantial evidence. The Yacht Log provides objective data showing the shift in the Day Tank uplift from the “Mid” tank to the Starboard Tank, followed by the observation of “cloudy fuel” and “steaming exhaust.” This sequence of events is in line with Ronan’s evidence and is independently corroborated, thus providing a credible account of the events leading up to the smoke observation. The absence of any proven alternate cause for the “white smoke,” as well as the lack of evidence for water ingress into the Vessel or crew negligence, further weakens the Defendant’s position. [136] In conclusion, the Plaintiffs' comprehensive and consistent evidence, supported by detailed log entries and witness testimonies, coherently and logically counters the Defendant’s claims of inconsistency and alteration, leading the Court to find in favour of the Plaintiffs regarding the consistency of the Vessel’s fuel records. No excess fuel on the Vessel [137] On the issue of the alleged excess fuel on the Vessel, the Defendant contends that the Vessel must have obtained additional fluid after departing from the RLYC with full tanks, S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 72 as per the calculations provided by Ronan. The Defendant’s argument hinges on the disparity between the fuel quantity at the commencement of the voyage and the amount at its conclusion in Male. [138] This Court, after thorough examination of the evidence and arguments presented, finds the position of the Plaintiffs to be more credible and substantiated. Ronan, who possesses extensive knowledge and experience in the Vessel's operations, has consistently argued that the fuel consumption calculations are based on a conservative and reasonable estimation of 15 litres per hour, acknowledging a minor margin of error. This estimation importantly takes into account the variable nature of fuel consumption, which is influenced by a combination of wind and motor power. Ronan’s testimony explicitly notes that the Vessel's average speed was about 5.25 knots, but experienced significant fluctuations ranging from 2 to 40 knots, directly impacting the rate of fuel consumption. [139] the RLYC's claim of an “excess” fuel onboard the Vessel upon her arrival in Male is robustly refuted by the detailed explanation provided by Ronan, the Master of the Vessel. Ronan's argument, grounded in his extensive experience and expertise, convincingly attributes any perceived surplus fuel at the journey's end to considerable savings achieved during the voyage, particularly during periods of favourable sailing conditions. This assertion is crucial in understanding the dynamics of fuel consumption on such voyages. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 73 [140] Ronan's testimony elucidates that the Vessel, during her journey from the RLYC to Male, significantly relied on wind power, a mode of propulsion that inherently consumes no fuel. This reliance on wind power was notably prominent while the Vessel navigated across the northern tip of Sumatera, a segment of the voyage where favourable wind conditions enabled the Vessel to sail without the aid of her motor. This efficient use of natural wind power, as opposed to motor-driven propulsion, undoubtedly contributed to the conservation of fuel, thus explaining the seemingly surplus fuel at the conclusion of the journey. [141] Further reinforcing Ronan's explanation is his emphasis on the variability of fuel consumption in relation to several factors, including wind assistance and engine revolutions per minute. Ronan's analysis demonstrates that fuel consumption is not a static figure but fluctuates based on these external and operational conditions. This is particularly pertinent in the context of the Vessel’s voyage, where she experienced a wide range of speeds - from as low as 2 knots to as high as 40 knots. Such variations in speed, influenced by wind conditions and engine usage, inevitably lead to differences in fuel consumption rates. The periods of high wind assistance would have reduced the need for motor power, thereby decreasing fuel usage. [142] Moreover, Ronan’s account of the Vessel’s engine management post the fuel incident on 13.7.2018 further substantiates the claim of reduced fuel consumption. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 74 Following this incident, the engine was deliberately operated at a lower RPM (1000 RPM), which is estimated to have resulted in a 20% reduction in fuel consumption, a strategic decision aimed at conserving fuel while ensuring safe navigation. This operational change would have had a significant impact on the Vessel's overall fuel consumption, as running the engine at a lower RPM is known to reduce fuel usage substantially. [143] The Defendant’s suggestion of the Vessel obtaining additional fluid post-departure from the RLYC is speculative and not substantiated by concrete evidence. Ronan's testimony as the Master of the Vessel is both detailed and technical, demonstrating a comprehensive understanding of the Vessel's fuel consumption under varying conditions. His expertise and direct involvement in the Vessel's operations provide substantial credibility to his testimony and calculations. [144] In conclusion, the Plaintiff's position, buttressed by Ronan's detailed and technical testimony, offers a logical and coherent explanation for the fuel levels recorded at the end of the voyage. The Court finds no compelling evidence to challenge the accuracy of Ronan's calculations or his assertion that no additional fuel was obtained after departing the RLYC. Accordingly, the Court finds that there was no additional fluid obtained by the Vessel. The evidence presented by the Plaintiffs and their witness, S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 75 Ronan, is accepted as more credible and convincing over that of the Defendant’s contention. The fuel did not become contaminated during voyage [145] In addressing the other contentions raised by the Defendant regarding the source of the saltwater contamination in the fuel of the Vessel, the Court examines the evidence and arguments presented by both parties. The Defendant posits that the contamination did not originate from the RLYC Marina, suggesting instead that it entered the Vessel's fuel system post-departure. This hypothesis largely hinges on interpretations of Ronan's testimony regarding fuel uplift and consumption calculations for the voyage from Langkawi to Male. [146] In the context of the Defendant’s reliance on speculative theories, particularly the suggestion by KJ Heer regarding water ingress into the Vessel's fuel system, the Court finds such theories to be insufficiently substantiated by objective evidence. KJ Heer's theory posits that water could have entered the fuel system during the voyage, but this hypothesis lacks concrete support from independent sources. It is primarily based on conjecture rather than empirical data or thorough investigation. [147] Contrastingly, the Plaintiffs present compelling evidence from Domnic, the H&M Surveyor, which provides a detailed and objective assessment of the Vessel's condition. This S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 76 evidence, is instrumental in understanding the actual state of the Vessel's hull and tanks. The H&M Surveyor conducted a thorough inspection of the Vessel, focusing on the integrity of her fuel tanks, hull, and other relevant components that could potentially be sources of water ingress. [148] Key findings from the H&M Surveyor's report significantly challenge the Defendant’s argument. The surveyor found no defect or damage to the Vessel's fuel tanks, bunkering points, hull, or any other areas that could feasibly allow seawater to infiltrate the fuel system. Notably, the Day Tank was found to be intact, the bunkering point in good condition, and there was no evidence of recent repair works that might suggest past damage and subsequent fixes. These findings are crucial as they directly address and refute the possibility of seawater contamination occurring during the voyage due to structural failures or malfunctions. [149] Furthermore, the Domnic’s report confirms that the filling line, a potential entry point for water, was closed and the closing cap intact. This detail is significant as it rules out one of the more plausible means by which water could have entered the fuel system while at sea. Additionally, Domnic explained that given the fuel tanks' location below the waterline and their relatively small size, any significant defect leading to seawater ingress would likely result in the tanks being filled and overflowing, or causing the Vessel to list or trim noticeably. No such occurrences were reported S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 77 by the crew, further supporting the integrity of the tanks and hull. [150] Domnic’s observations that the filler points for the fuel tanks are securely sealed after refueling, coupled with Ronan's practice of ensuring these caps are tightly fitted, adds another layer of assurance against accidental water ingress. Moreover, the absence of any issues with the fuel for the remaining part of the passage to Male and subsequent journeys implies that the problem was isolated and did not persist, which would be unlikely if there was an ongoing issue with water ingress into the fuel system. [151] The Court gives considerable weight to the condition of the Vessel following her maintenance at the Northern Shipyard. This maintenance, which is meticulously documented in the invoices and corroborated by Ronan's testimony, is crucial in assessing the Vessel's condition at the time of the alleged contamination. Ronan's testimony, along with the detailed invoices, provides a comprehensive record of the maintenance work carried out, underscoring the thorough nature of the upkeep and the attention given to ensuring the Vessel's seaworthiness. [152] Ronan, in his capacity as the Master of the Vessel, testified to the rigorous and regular maintenance schedule of the Vessel. He emphasized the meticulous care taken to maintain the engines and equipment, ensuring that the Vessel remained in prime condition for sea travel. This S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 78 testimony is not just a general assertion of the Vessel's condition but is supported by specific details of the maintenance work undertaken, as reflected in the invoices from the Northern Shipyard. The extensive nature of this maintenance, covering various aspects of the Vessel's machinery and systems, reinforces the argument that the Vessel was in optimal condition when she left the shipyard. [153] The findings of the H&M Surveyor further substantiate the Plaintiffs' position regarding the Vessel's condition post- maintenance as explained above. Moreover, the Domnic’s inspection revealed no evidence of recent repair works to the Vessel's hull or tanks that might indicate past damages and subsequent fixes. This absence of recent repairs is a critical point, as it suggests that the Vessel was not only well-maintained but also free from significant structural issues that could compromise her integrity and lead to issues like water ingress. [154] An aspect of the Plaintiffs' argument, which the Court finds persuasive, is the analogy likened to a situation in a restaurant where only one patron, having consumed a substantial portion of contaminated food, shows symptoms of food poisoning. This analogy, provided by the Plaintiffs, aptly illustrates the situation with the Starboard Tank, which took in the majority of the 1,615.85 litres of fuel uplifted at the RLYC. The fact that issues were observed only in the Starboard Tank, despite both the Port and Starboard Tanks receiving fuel from the same source, suggests that the scale S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 79 of uptake was a determining factor in the manifestation of contamination. [155] The evidence regarding the fuel from the Port Tank is important in assessing the validity of the Defendant’s contention about the source of the saltwater contamination. According to Ronan, the fuel from the Port Tank was of acceptable quality and did not cause any operational issues for the Vessel for the remainder of her journey. This point is not merely anecdotal but is based on Ronan's direct experience and observation as the Master of the Vessel. [156] If the fuel uplifted at the RLYC had been contaminated with saltwater, it stands to reason that both the Port and Starboard Tanks, having been refueled from the same source, would exhibit similar contamination issues. However, Ronan's testimony clearly indicates that the fuel from the Port Tank did not exhibit any signs of contamination or cause any performance issues. This disparity in the condition of the fuel in the two tanks is a strong indicator that the source of the contamination was not the fuel uplifted at the RLYC. [157] Furthermore, Ronan's account is supported by the operational performance of the Vessel post-refueling. The fact that the Vessel was able to continue her journey without any reported issues attributable to the fuel from the Port Tank is a compelling argument against theory of widespread contamination from the RLYC fuel uplift. This S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 80 operational evidence is a practical demonstration of the fuel's quality and contradicts the hypothesis of contamination at the source. [158] In conclusion, the Court finds that the saltwater contamination occurred pre-departure from the RLYC and from the marina itself, a decision grounded in a thorough evaluation of all evidence and the operational context of the Vessel's journey from Langkawi to Male. No fuel filter survey was done by the Defendant [159] The Court now turns to the issue of whether the integrity of the RLYC fuel and the good working condition of the RLYC Marina fuel pump was tested, verified, or proved by the Defendant. [160] Ronan's testimony provided a detailed explanation of the procedures and technical aspects required for ensuring the integrity of fuel and the operational condition of fuel pumps, particularly in a marina setting such as the RLYC. The absence of a fuel filter survey, as shown by the Plaintiffs, is a critical factor in the Court’s assessment. A fuel filter survey, as described by Ronan, is a process that checks the condition of the bulk tank primary filters. This process is essential for determining the level of contaminant blockage, which could affect the pressure in the delivery hose leading to the dockside fuel pump unit. The testimony of Ronan makes it clear that without this survey, it is impossible to ascertain the level of blockage and, consequently, the S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 81 likelihood of low pressure forming in the delivery hose. The presence of any leak in the system would allow salt water to be drawn into the fuel delivery line, particularly given its length and routing under the floating dock. [161] Furthermore, Ronan highlighted that the fuel delivery line, over 200 metres in length and running under the floating dock, should be subjected to annual pressure and vacuum tests. This standard operational procedure is critical for maintaining the integrity of the fuel delivery system. The absence of such testing raises significant concerns regarding the maintenance and operational standards upheld by the RLYC. [162] The Court notes a critical missed opportunity in verifying potential blockage in the fuel filters after the contamination incident. Such blockage, if present, could have resulted in saltwater being drawn into the fuel delivery line. The fuel survey would have eliminated this possibility. This omission becomes particularly significant given that the Defendant did not provide an explanation for its failure to conduct a survey of the fuel filters. This oversight is detrimental to the Defendant’s position, as it raises doubt about the integrity of the fuel delivery system. The lack of such verification contributes to the Court's assessment that the fuel contamination could have occurred through the fuel delivery line, a possibility that remains unaddressed. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 82 No fuel and system check [163] There is also a lack of a comprehensive fuel and system check on the fuel delivery system which could have ascertained if saltwater contamination was in the fuel, but this was not done. [164] Ronan explained the constituents of a “full fuel and system check” which encompasses filter inspections, fuel delivery line pressure/vacuum testing, pump calibration, and tank closure integrity assessments. Such a comprehensive check is critical to ascertain the presence of contaminants like saltwater in the fuel system. However, it was noted that this essential procedure was not undertaken by the Defendant, as evidenced by the absence of any record of such checks, especially around the critical date of 4.7.2018, when fuel was uplifted to the Vessel. [165] Furthermore, Ronan requested from Tayfun, the GM of the RLYC, copies of the RLYC fuel sales for the two weeks before and after the said upliftment date. This information was crucial to determine if saltwater contamination could have been a factor during this period. The lack of response to this request, as noted in Tayfun’s recap email to Ronan dated 6.11.2018, is a significant omission in the evidence gathering process. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 83 [166] The necessity of a full fuel system check becomes even more evident considering the specific circumstances at the RLYC. The fuel delivery line, extending over 200 metres along the waterfront and under the floating dock, raises a reasonable possibility of seawater intrusion due to low pressure in the system. This potential is further supported by the factors outlined: the relative positioning of fuel tanks and the dock, the potential clogging of primary filters, the powerful suction capability of the dock delivery unit, the absence of water-detecting monitor type filters, and the likely formation of low pressure in larger deliveries. Additionally, the possibility of saltwater ingress through damaged sections of the delivery line, which could result in a “corrosion eruption” compromising the line's integrity, is a substantial risk. [167] Given these factors and the lack of routine pressure/vacuum tests for such a long delivery pipe run, as suggested by Ronan and supported by visual evidence from the photographs and video of the Vessel fuelling at the RLYC Marina, the Court finds a marked deficiency in the evidence necessary to demonstrate the satisfactory operational condition of the RLYC Marina fuel pump when the fuel was supplied to the Vessel. This lack of evidence, particularly the omission of regular and essential maintenance checks, significantly undermines the assurance of the fuel pump's integrity at the crucial time of fuel provision. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 84 No fuel delivery line pressure/vacuum test [168] The next inquiry is on the issue of the lack of a routine fuel delivery line pressure/vacuum test at the RLYC, essential for verifying system integrity and preventing seawater contamination. This is significant as the lack of such a test suggests a probable source of contaminated fuel from the RLYC fuel pump. [169] The Defendant’s failure to conduct a fuel delivery line pressure/vacuum test, a fundamental and routine integrity check, is a key point to consider by the Court. The absence of this test, which is customarily expected to be conducted annually, particularly in environments where fuel lines are in close contact with salt water, raises significant concerns. The procedure, involving the disconnection and draining of the supply line from the bulk tank, sealing the line, and then subjecting it to a pressure test of approximately 100 psi followed by a vacuum test at about minus 5-10 psi, is designed to ascertain the integrity of the fuel delivery system. It is a basic preventive measure against the ingress of contaminants such as seawater. [170] Notably, there is a stark absence of any evidence or documentation indicating that such a test was ever conducted at the RLYC Marina. The lack of a fuel delivery line pressure/vacuum test certificate, which would be issued by a suitably qualified and competent service provider, is telling. This omission is not a trivial oversight but a S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 85 substantial neglect of routine maintenance and safety protocols. Given these circumstances, the likelihood of the contaminated fuel having originated from the RLYC fuel pump is significantly high. This neglect directly implicates the Defendant, demonstrating a failure to ensure the integrity and good working condition of the RLYC Marina fuel pump as is their duty. Therefore, in consideration of the evidence presented and the lack of requisite testing by the RLYC, the conclusion is drawn that the Defendant has not proven the integrity of the RLYC fuel nor the good working condition of the RLYC Marina fuel pump. Quality and integrity of fuel supplied by Miru Enterprise is not verified [171] The Defendant has provided Certificates of Quality from their supplier, Miru Enterprise and test results indicating no saltwater presence in the fuel. However, these evidentiary pieces are insufficient to dispel the concerns regarding the fuel's condition supplied to the Plaintiffs on 4.7.2018. [172] The Defendant has not positively proved the integrity and quality of the fuel supplied by Miru Enterprise. While the Certificates of Quality and fuel batch certificates were provided, there is a lack of credible proof that the fuel delivered to the RLYC was free from additives or contaminants. The Plaintiffs requested specific information about the fuel batch supplied on 4.7.2018, which was not satisfactorily provided at the time. The Certificates of Quality S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 86 from Malaysian Refining Company (MRC) Sdn. Bhd., disclosed during the Specific Discovery process, do not definitively answer questions about the quality of the fuel in question. [173] Additionally, the Letter from Petronas dated 24.6.2019 and the Jabatan Bomba letter dated 9.5.2019 do not verify the quality or safety of the fuel supplied at the RLYC. These documents, including the Petronas letter supporting Miru Enterprise's application for a Scheduled Controlled Goods Permit, do not endorse or verify the quality of the bunkers supplied by Miru Enterprise to the RLYC. Furthermore, the fact that these documents are from dates after the incident in question further undermines their relevance to the Plaintiffs' claim. [174] The Plaintiffs' assertion that there is no sample taken and tested after delivery into the RLYC bulk fuel installation to confirm the fuel's quality is a significant concern. The absence of a standard sampling procedure and testing to verify the fuel's integrity after delivery into the RLYC tanks raises the possibility of contamination post-delivery. [175] Moreover, the possibility of contamination through the fuel delivery line to the fuel pump located on the pontoon cannot be ruled out. The lack of a pressure/vacuum test on the fuel delivery line, as pointed out by the Plaintiffs, leaves open the possibility of saltwater contamination through joints or possible pinholes in the pipeline. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 87 [176] In light of the above considerations, the Court finds that the quality and integrity of the fuel supplied by Miru Enterprise to the RLYC have not been adequately verified. This lack of verification, combined with the absence of robust procedures to ensure the fuel's quality post-delivery, leads to the conclusion that the fuel supplied to the Plaintiffs may not have been free from the risk of contamination at the material time. The RLYC’s lack of requisite licence to supply fuel [177] In considering the material provided, it is evident that the RLYC, operated by the Defendant, lacks the requisite licence to supply fuel, a fact which is undisputed and affirmed by both parties. The absence of this licence, as confirmed by KPDN in their letter dated 18.2.2020, is not merely a technical omission but signifies a fundamental disregard for the regulatory framework governing the supply of fuel, specifically under the Petroleum Development Act 1974. This disregard for statutory requirements raises serious concerns about the Defendant’s commitment to maintaining the standards necessary for the safe and lawful operation of fuel supply facilities. [178] The Defendant’s contention that the fuel supplied at the RLYC Marina comes from Miru Enterprise, which possesses the necessary approvals, does not absolve the Defendant of its legal obligations. The fact that Miru Enterprise’s licence authorises it to provide bunkering S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 88 services does not extend such authority to the Defendant to supply fuel at the RLYC. The evidence, including the testimony of Maswadi, further clarifies that while Miru Enterprise may supply fuel to the RLYC, it is the club that sells this fuel to boaters, thereby engaging in an activity that requires a separate licence. [179] The lack of a licence has broader implications beyond the mere act of selling fuel. It suggests a potential lapse in the adherence to standards and regulations that are essential for the safe operation of fuel supply facilities. The Plaintiffs have raised legitimate concerns about the quality of the fuel supplied, specifically alleging that saltwater contaminated fuel was supplied to the Vessel, causing damage. The Defendant’s lack of a licence and, by extension, potential non-compliance with the regulatory standards, is indicative of poor upkeep or maintenance of the bunkering facilities at the RLYC Marina, which substantiates the Plaintiffs' claims of contamination. [180] Moreover, the Defendant’s argument that the licensing issue is immaterial to the question of liability is unpersuasive. While the primary claim of the Plaintiffs relates to the contaminated fuel, the absence of a licence is a relevant factor in assessing the overall operational standards and practices of the RLYC. It is a reasonable inference that an entity which disregards one aspect of the regulatory framework (such as obtaining the necessary licence) may also neglect other crucial aspects, such as S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 89 maintenance of the fuel supply system, which directly pertains to the Plaintiffs’ claim of contamination. [181] The evidence presented by the Plaintiffs, including the confirmation of the absence of a licence and the testimony regarding the resale of fuel by the RLYC at a profit, establishes a prima facie case that the Defendant has not only breached statutory requirements but also potentially compromised the integrity of the fuel supply, leading to the alleged damages. In the case of Ahmad Fuad Abd Rahman v Shell Malaysia Trading Sdn Bhd [2016] 1 LNS 103410, the Court held that it was not necessary for a party to be prosecuted and convicted of a criminal offence to be violating a law. In this case there was sufficient evidence presented in the respondent's case suggesting that the appellant had indeed breached the law by selling petrol to customers in quantities exceeding the legally permitted limit. This decision underscores that evidence of law violation can be established in a civil context without the necessity of a prior criminal conviction. The Defendant’s violation of statutory requirements without a conviction can therefore be considered in assessing civil liability. [182] In conclusion, while the absence of a licence may not, in itself, be the cause of the alleged damages, it is a significant factor in assessing the overall conduct and practices of the Defendant. This factor lends credence to the Plaintiffs’ claims and casts doubt on the Defendant’s assertion that the licensing issue is irrelevant to the question of liability. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 90 The absence of the licence, in fact, forms a crucial part of the context within which the Plaintiffs’ claims are to be evaluated. Negligent management of the RLYC fuel installation [183] On whether there was negligent management of the RLYC fuel installation by the Defendant, the evidence demonstrates a series of managerial failures and omissions that significantly support the Plaintiffs' claim of negligence and the consequent risk of contamination at the RLYC fuel installation. [184] The performance of Tayfun indicates a lack of necessary experience and expertise in managing a marine fuel facility. His apparent disregard for the inherent risks associated with diesel fuel supply, particularly in the context of a marine environment, is concerning. The Plaintiffs’ initial alerts regarding potential contamination were met with indifference, reflecting a failure to appreciate the gravity of such concerns. This attitude not only compromises the safety and reliability of the fuel supply but also exposes boaters, including the Plaintiffs, to significant risk. [185] Tayfun’s failure to conduct a detailed system review or reassessment of the bulk fuel installation during his tenure further underscores a negligent approach to the management of the facility. The lack of regular, thorough inspections and assessments of fuel installations is a critical S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 91 oversight, especially given the potential consequences of fuel contamination in marine environments. [186] Furthermore, Tayfun’s admission that the bulk fuel installation was out of service, coupled with his inability to recall or explain the reasons for the suspension of fuel sales in 2019, raises serious concerns about the overall maintenance and operational standards at the RLYC. The absence of proper documentation or records regarding these operational issues and the remedial actions, if any, taken in response, is indicative of a systemic failure in the management of the facility. [187] The failure to understand the critical nature of the fuel pump setup and maintenance, as evidenced by Tayfun’s responses in cross-examination, further reinforces the claim of negligent management. The decision to decline an inspection of the Vessel in Male, citing cost concerns, and the lack of any substantiated report or evidence confirming the integrity of the fuel system, demonstrates a failure to undertake due diligence. [188] Moreover, Tayfun’s failure to share fuel test reports with the Plaintiffs, his lack of checks on other boats' fuel filters, and the absence of any fuel delivery line, pressure, or vacuum tests, which could have easily identified leaks leading to seawater contamination, are significant omissions. These actions, or lack thereof, are indicative of a disregard for S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 92 standard operational procedures essential in maintaining the safety and integrity of a fuel supply system. [189] In light of the above, the evidence clearly points to a poorly supervised, managed, and maintained the RLYC fuel installation under Tayfun’s tenure. This negligent management created an environment where the risk of fuel contamination was not adequately addressed or mitigated, thereby substantiating the Plaintiffs' claims. Consequently, the Plaintiffs have successfully established that the RLYC fuel installation was not free from the risk of contamination at the material time, primarily due to the negligent management practices of the RLYC’s management. No maintenance of the RLYC fuel installation by the Defendant [190] The Plaintiffs have raised significant concerns regarding the supervision, management, and maintenance of the RLYC fuel installation. Upon careful examination of the evidence presented, it is apparent that there are substantial deficiencies in the management and maintenance of the RLYC fuel installation, which supports the Plaintiffs' position that the installation was not free from the risk of contamination at the material time. [191] The evidence indicates a notable absence of regular or any maintenance of the RLYC fuel tank facility and fuel delivery lines. The upkeep of the fuel pump, conducted by a third- S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 93 party contractor, should have been documented to confirm the integrity of the fuel pump. However, the absence of such records raises serious concerns about the state of maintenance and the potential risks associated with the fuel system. The General Manager, Tayfun, confirmed that the fuel lines and tanks were maintained by the RLYC, yet the evidence shows no maintenance records or evidence of proactive measures to ensure the system's integrity. [192] Furthermore, the lack of evidence regarding the maintenance of the fuel system, particularly considering its installation on a floating pontoon, highlights a neglectful approach to a critical aspect of the facility's operation. The assumption that a new system installed in 2015 would not require regular maintenance is flawed and demonstrates a lack of understanding of the necessary standards for maintaining such facilities. [193] The non-appearance of the Maintenance Manager, who was responsible for the upkeep of the fuel tank facility and delivery lines, is also telling. The fact that the new Maintenance Manager was not called as a witness, despite being in a position to provide crucial evidence about the maintenance standards and practices at the RLYC, invites scrutiny under Section 114(g) of the Evidence Act 1950. Section 114(g) of the Evidence Act 1950 allows the Court to presume that evidence not produced would, if produced, be unfavourable to the person who withholds it. The failure to produce evidence from a key witness responsible for the S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 94 maintenance of the fuel installation suggests a deliberate withholding of information that could potentially discredit the integrity of the RLYC fuel system. The Court, therefore, is inclined to draw an adverse inference that the testimony of the Maintenance Manager, if produced, would have been unfavourable to the Defendant. [194] In conclusion, the RLYC fuel installation was poorly supervised, managed, and maintained, thereby not free from the risk of contamination at the material time. This supports the Plaintiffs’s contention that the Defendant’s failure to maintain and properly manage the fuel installation significantly contributed to the risk and potential occurrence of fuel contamination. Lackadaisical attitude and inaction on the part of the RLYC [195] It is important to meticulously examine the sequence of events and the Defendant’s response to the Plaintiffs’ concerns about fuel contamination in the Court’s consideration of whether the RLYC fuel installation was not free from the risk of contamination at the material time. [196] Beginning with the initial alert on 14.7.2018, the Plaintiffs, through Ronan communicated to the Defendant about potential fuel contamination, specifically following the fuel uplift on 4.7.2018. This communication was made via satellite telephone while Ronan was still at sea en route to Male, Maldives. The lack of prompt and adequate response S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 95 from the Defendant at this stage set a precedent for subsequent interactions. [197] Subsequent communication on 19.7.2018, through direct emails to Tayfun, the RLYC General Manager, and Azrin (DW5), the RLYC Harbourmaster, did not result in any substantive investigation or action from the Defendant. This inaction continued despite Ronan’s specific requests for a survey of the fuel filters and fuel batch certificates, which were crucial in verifying whether the fuel was contaminated. [198] Even after the Plaintiffs initiated legal action, the response from the Defendant remained insufficient. The Sales Receipts and Bunker Quality Certificates provided through Specific Discovery did not conclusively confirm the quality of the fuel uplifted on 4.7.2018. Tayfun’s promise to send a fuel sample for analysis and his failure to follow through or communicate the results further exemplify the Defendant’s lack of commitment to addressing the issue. [199] Notably, a meeting in November 2019 between Ronan and Tayfun did not yield any investigative action from the Defendant. The Plaintiffs had reasonably expected the Defendant to conduct various tests, including a physical inspection of the Vessel, a survey of the fuel filters of other the RLYC customers, a lab analysis for saltwater contamination, and a comprehensive check of the RLYC bulk fuel installation, including a pressure/vacuum test of the fuel delivery line. The failure to conduct these tests, S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 96 particularly in light of a serious allegation of fuel contamination, is indicative of a dereliction of duty by the Defendant. [200] The evidence suggests that the RLYC, as the operator of a public marina servicing numerous boaters, had a significant responsibility to ensure the quality and safety of its fuel supply. The potential risks associated with contaminated fuel – to vessels, their occupants, and the environment – necessitate a high standard of care, which the Defendant failed to meet. [201] In light of the evidence presented, and considering the Defendant’s inadequate response to the contamination claim, this Court is compelled to draw an adverse inference under Section 114(g) of the Evidence Act 1950. This inference is drawn from the Defendant’s failure to produce critical evidence that could have clarified the quality and integrity of the fuel supplied. The Court presumes that such evidence, if it had been produced, would have been unfavorable to the Defendant. [202] Therefore, the lack of appropriate action and verification by the Defendant in response to the Plaintiffs' complaints substantiates the Plaintiffs’ claim. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 97 Fuel delivery line inspection by Heer [203] The Plaintiffs have raised significant concerns about the potential for saltwater contamination in the fuel delivery system at the RLYC. The Plaintiffs' hypothesis, primarily based on Ronan's analysis using the RLYC photographs and Google Earth imagery, raises substantial concerns about the possibility of the fuel delivery pipe coming into contact with seawater. Ronan posited that due to the layout of the RLYC property and the location of the fuel tanks, there was a strong likelihood of the delivery line contacting seawater. He further suggested that given the presence of a powerful suction pump and the absence of water-detecting filters, low pressure could form in the delivery line during refueling, potentially allowing seawater ingress through any compromised areas of the pipeline. [204] However, KJ Heer, the Defendant’s expert, who physically inspected the fuel installation at the RLYC, concluded that the chance of saltwater entering the marina fuel system was remote. His conclusion was based on the conditions of the fuel dispensing system, its separation from water sources, and the pressure dynamics within the system. While KJ Heer’s inspection provides some insights, it is critical to note that his examination occurred two years after the incident, raising questions about the applicability of his findings to the situation at the time of the incident. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 98 [205] The Plaintiffs have correctly pointed out that an expert report on such a matter would typically detail the equipment’s specifications and conduct a thorough examination to verify its suitability. The absence of such detailed information in the KJH Technical Report, along with the lack of documentation such as original design drawings, certification documents, and maintenance records, undermines the comprehensiveness and credibility of the report. The report's failure to specify critical aspects of the fuel system, such as the make and type of the pump, the internal condition of the bulk storage tank, and the specific characteristics of the delivery hose, leaves significant gaps in the assessment of the system's integrity. [206] Furthermore, the Plaintiffs’ observation that the fuel delivery hose runs along the floating dock, potentially in contact with seawater, is a crucial point. The absence of routine pressure testing and inspection records for the delivery hose, as well as the lack of clarity on the hose’s material and compliance with certification standards, raises the possibility of undetected damage and subsequent contamination. [207] Regarding KJ Heer's conclusion that the possibility of saltwater ingress into the fuel delivery system is remote, it is pertinent to consider that his inspection occurred two years after the incident. Changes or repairs made to the fuel system since the incident could significantly alter the current state of the system compared to its condition at the time of S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 99 the alleged contamination. KJ Heer's failure to cross- reference his findings with records or information from the time of the incident limits the relevance of his conclusions to the Plaintiffs' claim. [208] In conclusion, considering the lack of detailed and contemporaneous inspection of the RLYC fuel installation, the absence of critical technical information, and the potential changes to the fuel system since the incident, the Court finds that the Defendant has not conclusively demonstrated the absence of risk of contamination in the fuel supplied on 4.7.2018. The Petrotechnical Report is insufficient to dispel the Plaintiffs' claim of contamination [209] The Defendant relied on the Petrotechnical Report issued by Petrotechnical Inspection (M) Sdn Bhd to counter the Plaintiffs' claims of contamination. The report explains that: “This test (nature of water) is a qualitative method where we can’t define the quantity of water in the diesel sample. It could only indicate whether sample contains seawater (contaminated) or freshwater (not contaminated). In order to know the water content, we need to undergo water by Karl Fischer analysis (ASTM D6304). The test limit for water content is 550ppm max (0.05%)” S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 100 [210] However, upon careful analysis, this Court finds that the Petrotechnical Report does not provide conclusive evidence to negate the Plaintiffs' claim of contamination. [211] Firstly, the timing of the sample testing raises significant concerns about the relevance of the Petrotechnical Report to the Plaintiffs' case. The fuel sample tested was taken in November 2018, approximately four months after the incident in question. This time gap is critical, as Azrin, the harbourmaster of the RLYC conceded that the sample was likely from a different batch of fuel than what was supplied to the Plaintiffs' vessel. Consequently, the test results, which indicated an absence of saltwater, cannot be reliably linked to the fuel batch in dispute. [212] Furthermore, the methodology and integrity of the sampling process employed by the Defendant are questionable. The Petrotechnical Report lacks detailed information on the sampling date, the quantity of samples taken, and the specific location from which these samples were extracted. The absence of a witness account, particularly from Naren, who was responsible for taking the sample, further diminishes the credibility of the testing process. Additionally, the lack of a fixed standard operating procedure for fuel contamination cases at the RLYC, as noted by Azrin, compounds these concerns, casting doubt on the representativeness and integrity of the samples tested. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 101 [213] Another significant shortfall in the Petrotechnical Report is the omission of testing for sodium contamination. This specific analysis is crucial in determining the presence of saltwater in the fuel. Without this critical component, the report's ability to conclusively rule out saltwater contamination is severely limited. [214] The Court also notes the delay in the disclosure of the Petrotechnical test results to the Plaintiffs. The results were not shared at the time of the initial complaint but were only revealed during the discovery stage of the proceedings. This lack of timely disclosure adds to the concerns regarding the transparency and thoroughness of the Defendant’s response to the contamination allegations. [215] In light of these findings, the Court concludes that the Petrotechnical Report, along with the associated testing and documentation provided by the Defendant, fails to adequately refute the Plaintiffs' claim of contaminated fuel. The absence of relevant, timely, and comprehensive testing, coupled with procedural shortcomings in the sampling and testing process, leads to the finding that the Defendant has not convincingly demonstrated the integrity of the fuel supplied on 4.7.2018. No other complaints by other the RLYC customers [216] It is contended by the Defendant the RLYC that there is an absence of other complaints about fuel contamination at the S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 102 RLYC, which they argue precludes the possibility of the Plaintiff's fuel being contaminated. However, this line of reasoning is not compelling for several reasons. [217] Firstly, the evidence of other users of the marina, specifically Asyraf and Raden, who did not encounter issues with the fuel, cannot be accepted without reservation. The Plaintiffs have raised pertinent points in this regard. Notably, the quantities of fuel uplifted by these vessels were significantly smaller than that of the Plaintiff's vessel. The “Manta Blu” and “Gadis Pulao” uplifted 157 litres and 857.89 litres respectively, compared to approximately 1,600 litres by the Plaintiff's vessel. It is reasonable to accept that smaller quantities of fuel are less likely to create the conditions necessary for saltwater ingress, as hypothesised by the Plaintiffs. This hypothesis, suggesting that low pressure in the delivery line caused by larger quantities of fuel could result in saltwater contamination, remains unrefuted. [218] Furthermore, the operational patterns of the “Manta Blu” and “Gadis Pulao” differ significantly from the Plaintiff's vessel. Their relatively short journeys and low fuel consumption do not compare to the Vessel’s longer voyage from Langkawi to Male, spanning 1616 nautical miles. This difference in operational patterns means that even if there was a contamination issue, it might not have manifested in the same way or to the same degree in these smaller vessels. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 103 [219] The Defendant’s argument about the presence of other “large deliveries” is also not entirely convincing. The absence of complaints from these deliveries does not necessarily imply the absence of a problem. It is pertinent that the Defendant did not produce any evidence from these other boaters who undertook large deliveries. This absence of corroborative testimony from other users who uplifted similar quantities of fuel weakens the Defendant’s position. [220] Additionally, the evidence provided by Asyraf, a crew member of “Manta Blu”, does not cover the period post- August 2018. Therefore, his testimony does not account for any potential issues that might have arisen after his tenure with “Manta Blu”. This gap in the evidence is significant, especially considering the timeframe of the alleged contamination incident involving the Vessel. [221] Moreover, the Defendant’s lackadaisical approach to addressing the Plaintiffs' claim raises doubts about the thoroughness of their investigation into the matter. It suggests the possibility that if there were complaints, they might not have been adequately addressed or disclosed. [222] Lastly, the unexplained closure of fuel sales at the RLYC from May to September 2019 is a critical point. The absence of sales during this period is conspicuous and unaccounted for by the Defendant. This gap in sales activity could suggest that there were underlying issues with the fuel quality, which necessitated the cessation of sales. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 104 [223] In conclusion, while the Defendant has attempted to refute the claims of fuel contamination by pointing to the absence of other complaints and the evidence of other marina users, this argument is not sufficiently persuasive. The Plaintiffs have raised several valid concerns and inconsistencies in the Defendant’s assertions, casting doubt on the reliability of the Defendant’s claim that the absence of other complaints conclusively rules out the possibility of contamination. KJ Heer’s expert evidence [224] The Court now focuses on the evaluation of expert evidence provided by KJ heer for the Defendant. The crux of the matter rests on the reliability and validity of Heer's testimony, which the Defendant heavily relies on to refute the allegation that the contaminated fuel originated from the RLYC pump. The forthcoming examination of Heer's testimony, therefore, seeks to ascertain its adherence to these judicial standards, contrasting it with the Plaintiffs' expert evidence to determine the more credible and reliable account of the events in question. [225] The core of this evaluation hinges on the principles laid out in Whitehouse v Jordan [1981] 1 WLR 246 (House of Lords) and further emphasised in Batu Kemas Industri Sdn Bhd v Kerajaan Malaysia Tenaga Nasional Bhd [2015] 5 MLJ 52 (Court of Appeal), which mandate that an expert witness S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 105 should provide independent, unbiased opinion within their area of expertise and base their conclusions on factual data rather than assumptions. [226] In Whitehouse v Jordan and further endorsed in Batu Kemas Industri Sdn Bhd v Kerajaan Malaysia Tenaga Nasional Bhd, key principles guiding the role of an expert witness in legal proceedings were established. These principles emphasise that an expert witness should provide independent, objective, and unbiased opinions within their field of expertise. It is critical that they do not assume the role of an advocate in court. They are expected to clearly state the facts or assumptions upon which their conclusions are based and not omit any material facts that might undermine their opinion. Furthermore, an expert must clarify when a question or issue is beyond their expertise. If their opinion is based on insufficient data, this limitation must be acknowledged, indicating that such an opinion is provisional. Finally, if an expert witness's report cannot be presented as the complete and unqualified truth, any qualifications to this effect should be clearly stated in the report. These guidelines underscore the importance of transparency, thoroughness, and objectivity in expert testimony. [227] As exemplified by the case of Al-Ambia Sdn Bhd v Foremost Prospect Sdn Bhd [2019] MLJU 1246 (High Court), there are fundamental principles that govern the credibility and effectiveness of expert testimony. Firstly, it is S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 106 crucial that an expert’s observations and opinions are rooted in detailed investigations that are specific to the case, rather than being based on general assumptions. This specificity ensures that their testimony is directly relevant and applicable. Secondly, experts must possess deep and pertinent knowledge in the field related to their testimony. Endorsing or critiquing reports without adequate expertise in the relevant area can significantly diminish the validity of their testimony. Thirdly, any criticisms or support for findings should have a solid scientific and empirical foundation. Experts are expected to disclose the rationale and evidence that underpin their conclusions. Fourthly, the qualifications and experience of an expert should align closely with the subject matter of their testimony. This alignment is essential for their opinions to be considered credible and authoritative. Additionally, when experts challenge accepted findings, such as certified designs or processes, they must provide substantial supporting evidence or calculations to validate their claims. Lastly, the acknowledgment of existing quality checks, certifications, and compliance processes, particularly when they are part of industry standards or legal requirements, is essential. These practices, when adhered to, ensure that the expert testimony provided is not only reliable but also adds significant value to the judicial decision-making process. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 107 Independence of KJ Heer's testimony [228] Firstly, the evidence presented calls into question the reliability and independence of KJ Heer's testimony. The crux of the Plaintiffs' claim revolves around the allegation that the fuel supplied at the RLYC Marina was contaminated with saltwater, rendering it unfit for use. KJ Heer, appointed by the Defendant, was tasked with investigating this claim and providing an expert opinion on the matter. However, the manner in which KJ Heer approached his assignment raises significant concerns regarding his impartiality and the thoroughness of his investigation. [229] KJ Heer's focus, as outlined in the Defendant’s Expert Affidavit and during his re-examination, was to examine the integrity of the RLYC fuel installation and the possibility of contamination. However, rather than conducting a comprehensive investigation of the entire fuel installation system at the RLYC, KJ Heer's efforts appear skewed towards refuting the possibility of contamination in the Starboard Tank. This approach is indicative of a bias towards disproving the Plaintiffs' claim rather than objectively assessing the integrity of the RLYC fuel installation. [230] The reference to the Plaintiffs’ Letter of Demand dated 25.7.2019 in the KJH Technical Report, where KJ Heer attempts to disprove the contamination of the Starboard Tank, further cements the perception that his report was not S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 108 an impartial technical analysis, but rather a defense against the Plaintiffs' allegations. [231] Moreover, KJ Heer's methodology in addressing key questions is telling. In questioning whether the Starboard Tank was primarily filled with fuel from the RLYC Marina, KJ Heer disregarded crucial data regarding fuel quantities uplifted at Northern Shipyard and the RLYC as stated in Ronan’s Statement. He also discredited the Vessel’s log entry from 22.5.2018 and relied on speculative calculations to challenge the plausibility of the Starboard Tank being primarily filled with the RLYC fuel. [232] In examining the contamination of the fuel in the Starboard Tank, KJ Heer selectively considered evidence. He accepted parts of the Test 2 results while dismissing Test 3 results due to an error in labeling, which showed a high sodium content in the Starboard Tank. His conclusion that the fuel bunkered at the RLYC pump could not have been contaminated appears to be based on selective evidence and an unwillingness to consider all relevant data. [233] Finally, KJ Heer's hypothesis regarding the source of the water-contaminated diesel, which he attributes to potential leakage into the Vessel's fuel system, is unsupported by physical inspection or credible data. His speculation about the cause of the contamination, such as physical damage, corrosion, or poor workmanship, lacks substantiation and strays from his original scope of engagement. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 109 [234] Given these observations, it is evident that KJ Heer's opinion is not only biased in favour of the Defendant but also fails to address the core aspects of his appointed task. The lack of a thorough and independent investigation into the RLYC bulk fuel installation and the selective approach to evidence significantly undermines the credibility of his testimony. As such, this Court finds KJ Heer’s evidence to be lacking in the impartiality and rigour expected of an independent technical expert. KJ Heer's expertise [235] Next the question of KJ Heer's expertise in the field of bulk fuel installations is central to the assessment of the credibility and weight of his evidence. The Supreme Court's guidelines in Junaidi bin Abdullah v Public Prosecutor [1993] 3 MLJ 217 provide a pertinent framework for evaluating an expert witness's qualifications. The two- pronged test mandates that the witness must possess the necessary skill through academic qualification or experience, particularly when the subject matter is of a scientific and complex nature. [236] Upon examination of KJ Heer's qualifications and experience, several critical deficiencies become apparent. Firstly, KJ Heer, during cross-examination, admitted to his lack of experience in the operation and management of bulk fuel installations. This case marks his first foray into reviewing and reporting on such a matter. His curriculum S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 110 vitae further corroborates this lack of familiarity with bulk fuel installation inspection and testing protocols. This absence of relevant experience is significant given the specialised nature of the field and the complexity of the issues at hand. [237] Furthermore, KJ Heer's approach to the investigation of the RLYC fuel installation system raises concerns. His failure to examine installation records and documentation, such as statutory licence and calibration records, indicates a lack of thoroughness in his inquiry. The absence of such critical data in his report and evidence undermines the reliability of his conclusions. [238] KJ Heer's inspection of the RLYC fuel pump, conducted over two years after the incident, does not provide a reliable basis for assessing the installation's condition at the time of the alleged contamination. The removal of one of the fuel tanks used during the period in question further complicates the matter, as it may suggest undisclosed issues with the installation. [239] Moreover, KJ Heer's focus on superficial aspects of the fuel installation, without a comprehensive check of its condition, suitability, and integrity, indicates a lack of depth in his analysis. His dismissal of alternative hypotheses, such as the possibility of saltwater penetration, without adequate consideration, further questions the robustness of his findings. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 111 [240] Given these factors, it is evident that KJ Heer's opinion lacks the necessary foundation in expertise and impartiality required for this Court to rely upon it. His testimony does not meet the standards set forth by the Supreme Court for expert evidence, particularly in a matter involving the scientific and technical complexities of bulk fuel installations. Consequently, this Court finds KJ Heer’s evidence to be insufficient and unreliable for the purposes of the present case. The Plaintiffs' claim, therefore, stands unrefuted by credible expert testimony from the Defendant's side. Fuel consumption level [241] In assessing the evidence regarding the Vessel fuel consumption levels, it is pertinent to examine the technical details provided by Ronan and the corresponding analysis by KJ Heer. Ronan's testimony, supported by the MTU company's power curve graph for the 1993 MTU V8 Diesel engine and Bosch fuel injector pump, part number 0401 848 708, offers a detailed and technically grounded assessment of the Vessel's fuel consumption. [242] Ronan's explanation, based on the MTU power curve from the Vessel’s manual, indicates that the engine, rated at 206 kW/280 hp at a maximum of 2300 RPM, consumes fuel at a rate of 15 litres per hour. This consumption rate is corroborated by the Vessel's actual fuel consumption history during the passage from Langkawi to Male. The S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 112 detailed calculation provided by Ronan takes into account the distance travelled, average speed, and operational hours, both with and without motor usage. This meticulous accounting, including adjustments for generator use, the reduction in fuel burn due to a lower RPM following the incident, and the loss of fuel due to contamination, leads to a total estimated fuel burn of 4087.5 litres, leaving approximately 500 litres upon arrival in Male. The disposal of the contaminated fuel, as indicated by the invoice from Greenizon Private Limited, and the conditions during the passage, which were not flat water but moderate to occasionally rough, further validate these calculations. [243] In contrast, KJ Heer's approach to estimating the Vessel's fuel consumption is based on a standard propeller power curve and lacks the specific technical details of the Vessel’s propeller. His decision not to seek the propeller technical information, which he deemed difficult to obtain, and to rely on his own opinion leads to two critical errors in his assumptions. Firstly, his equating of 1200 RPM to an 80% power setting contradicts the MTU power curve, which indicates that 1200 RPM corresponds to 63% of maximum power. Consequently, his second assumption regarding the fuel burn at this power setting is also erroneous. [244] KJ Heer's acknowledgement of the uncertainties in boat propulsion estimates, particularly regarding propeller characteristics and the use of sails, ultimately leads him to adopt the 15 litres per hour scenario, which aligns with S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 113 Ronan's analysis. However, the initial discrepancies in KJ Heer’s assumptions and his methodological approach cast doubt on the reliability of his conclusions. [245] Given the comprehensive and technically substantiated evidence provided by Ronan, in contrast with the less precise and ultimately conforming analysis by KJ Heer, the Court finds Ronan's testimony regarding the Vessel's fuel consumption to be more credible and accurate. Fuel quantities uplifted at the RLYC Marina [246] The next inquiry concerns the fuel quantities uplifted at the RLYC Marina. The primary evidence in question pertains to the fuel uplifts and consumption of the Vessel from the re- launch at Northern Shipyard on 21.5.2018 to her refueling in the RLYC on 4.7.2018. The Plaintiffs have provided a detailed account, supported by Ronan's sworn testimony and corroborated by contemporaneous records, of the fuel transactions and consumption. It is noted that on 21.6.2018, following a maintenance period, all fuel storage tanks, including the Day Tank, were thoroughly inspected and cleaned, with a starting fuel level of nil. Subsequently, fuel was uplifted on 21.5.2018 and 22.5.2018, with detailed records of the quantities added to each tank. [247] The Plaintiffs present a logical and well-documented progression of fuel levels, including consumption during a sea trial and a round trip to Phuket, resulting in a total S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 114 onboard fuel of approximately 2706.5 litres upon arrival at the RLYC. Before departure from the RLYC, Ronan confirms that all tanks were refilled, bringing the total onboard fuel to 4490 litres, considering a minor calculated fuel error of 79 litres, which is deemed acceptable within the margins of specific gravity variations and gauge errors. [248] On the other hand, KJ Heer challenges the completeness and accuracy of these records. He contests the total quantity of fuel bunkered on 22.5.2018, relying on a fuel invoice which states 2256 litres were uplifted, a figure he deems as independent third-party evidence. However, KJ Heer disregards the more credible yacht log entry dated 22.5.2018, which indicates 2600 litres were uplifted. The Court observes that KJ Heer's reliance on the fuel invoice is undermined by Ronan's explanation that this invoice is incorrect and was issued by the fuel supplier, not the Northern Shipyard. The reliability of the crew's log entry is bolstered by the lack of motivation for recording an incorrect figure and the consistency of this entry with other evidence. [249] Moreover, KJ Heer's assumption of a higher fuel burn rate during the sea trial lacks substantiation and contradicts the Plaintiffs' consistent and plausible calculations based on a fuel burn rate of 15 litres per hour. His conclusion that a significant quantity of fuel in the tanks is unexplained and from an unknown source is predominantly based on the contested fuel invoice. This reliance on a single piece of evidence, which is contradicted by other credible evidence, S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 115 casts doubt on the independence and thoroughness of KJ Heer’s investigation. [250] In conclusion, the Court finds the Plaintiffs' account of the fuel uplifts and consumption to be coherent, consistent, and supported by a preponderance of evidence. The detailed records, sworn testimony, and logical progression of fuel levels present a convincing narrative. Conversely, KJ Heer's arguments and reliance on disputed evidence are insufficient to undermine the Plaintiffs' position. Therefore, the Court decides in favour of the Plaintiffs, accepting their account of the fuel quantities uplifted at the RLYC Marina and their subsequent consumption calculations as accurate and reliable. KJH Technical Report [251] KJ Heer conducted a physical inspection of the fuel installation system on 7.10.2020 and 8.10.2020, as documented in the KJH Technical Report. However, there are significant concerns about the thoroughness and technical rigour of this report. The lack of detailed information about the equipment, such as make, type, part number, and age, as well as the absence of a detailed examination of the equipment's specifications, undermines the credibility of the report. Additionally, there is also omission of critical data, including the original design drawings, maintenance records, and electrical bonding arrangements. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 116 [252] The Court observes that the report does not provide a detailed description of the component parts of the fuel system, such as the delivery pump, the bulk storage tank, and the delivery hose. This lack of detail is crucial, especially in a marine environment where equipment is subject to harsh conditions and requires regular inspection and maintenance to ensure safety and functionality. The absence of a safety bund for the bulk diesel tank is also a notable omission, as it is a standard requirement for preventing environmental contamination. [253] Moreover, the lack of routine system inspections, including delivery hose inspection and pressure vacuum testing, raise doubts about the ongoing compliance of the RLYC fuel installation with industry standards and regulations. The absence of documentary evidence supporting the certification, testing, calibration, or licensing of the installation further supports the position that the installation may not have been maintained to industry standards. [254] KJ Heer's report does not verify the integrity, condition, and quality of the RLYC bulk fuel installation adequately. His conclusion that a full critical evaluation of the bulk fuel installation is unnecessary seems to disregard essential factors that could affect the quality of the fuel. The potential for the fuel delivery line to come into contact with seawater and the possibility of leaks are significant concerns, especially in light of the observation that part of the delivery line runs along a floating dock. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 117 [255] The Court finds Ronan’s hypothesis concerning the pressure dynamics during the refueling process, which could lead to contamination under certain conditions, to be a compelling argument. The lack of a vacuum test to determine the presence of leaks in the fuel delivery line further weakens the reliability of KJ Heer's conclusions. [256] In conclusion, the evidence presented by KJ Heer in his report is insufficient to dismiss the concerns raised by Ronan regarding the potential for fuel contamination. The KJH Technical Report fails to provide a comprehensive and detailed analysis of the RLYC bulk fuel installation, and thus does not meet the standards expected of an expert report in this context. White smoke observations [257] The Court now examines the evidence and opinion of KJ Heer related to the observation of white smoke, a key indicator of contamination. [258] KJ Heer acknowledges that white smoke signifies the presence of water during combustion. However, he raises two contentions: firstly, that if saltwater was in the Starboard Tank, it should have been visible almost 2 days before the engine damage, and secondly, that the absence of visible white smoke for an extended period suggests water entered the fuel system after the Starboard Tank was drawn upon. Furthermore, he implies negligence on the part of Ronan S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 118 and his crew for allowing the engine to run for more than a day under these conditions. [259] Ronan, on the other hand, provides a different perspective. He clarifies that the smoke observed was not merely steam but thick grey diesel smoke indicative of damage due to incomplete combustion. This observation was made and reported immediately after drawing fuel from the Starboard Tank for over a day, aligning with the timeline of the engine's exposure to the contaminated fuel. Ronan attributes the incomplete combustion and resulting smoke to severe damage to the injector pump plungers and the cylinder head's injector units, likely caused by water in the fuel. This explanation is supported by Athif’s Report, which refers to the 'drip factor' associated with incomplete combustion due to water presence. [260] Furthermore, Ronan contests KJ Heer's suggestion of crew negligence, stating that the heavy grey smoke was immediately reported upon observation and that there was no visible smoke the previous evening. This account is corroborated by other crew members, Gunther (PW4), Vinita Mala, and Amit, who were present during the incident. Ronan's explanation that the smoke increased dramatically during engine overspeed and persisted even after switching to clean fuel from the port/Centre Tanks suggests a problem that originated from the previously used Starboard Tank. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 119 [261] In conclusion, the Court finds Ronan’s account more credible and consistent with the symptomatic behaviour of an engine running on contaminated fuel. The immediate reporting of the issue by the crew upon observation, and the specific nature of the smoke described, align with the technical explanation provided by Ronan and supported by Athif’s Report. The assertion of negligence by KJ Heer is not substantiated with sufficient evidence and appears to be based on assumption rather than fact. Sample Testing [262] The Court turns its attention to the analysis of sample testing by KJ Heer. [263] KJ Heer places reliance on the results of Test 2 to assert that none of the fuel storage tanks, including the Starboard Tank, was contaminated. However, this conclusion appears to overlook critical aspects of the evidence. Test 2 results indicate significant water contamination in the Day Tank, which, according to Ronan’s Statement and Ronan’s testimony, aligns with the fuel incident that occurred after seven uplifts from the Starboard Tank. This suggests a possible transfer of contaminated fuel from the Starboard to the Day Tank. The observation of the fuel in the Day Tank as “milky” supports the presence of emulsification, typically indicative of water in fuel. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 120 [264] Furthermore, the cessation of similar fuel-related incidents after the Day Tank was drained and refilled from the Port/Centre Tanks for the remaining journey to Male further supports the contention that the contamination was specific to the fuel drawn from the Starboard Tank. [265] Test 3 provides compelling evidence, revealing an exceptionally high sodium content of 10,700 parts per million in the Starboard Tank. Such a concentration is markedly unusual for diesel fuel and strongly suggests contamination, likely from saltwater. The fact that this sample was drawn from the Starboard Tank in Male prior to defueling adds to its relevance and significance. [266] The Court notes with concern that KJ Heer seems to have disregarded the Test 3 results. His failure to acknowledge or provide a plausible explanation for this high sodium content weakens his argument and raises questions about the comprehensiveness of his analysis. [267] In conclusion, the Court finds that the evidence, particularly the results of Test 3, significantly undermines KJ Heer’s contention that the Starboard Tank was not contaminated. The high sodium content in the Starboard Tank, alongside the corroborative evidence of water contamination in the Day Tank following uplifts from the Starboard Tank, points to a probable contamination of the fuel in the Starboard Tank. This, coupled with the cessation of issues after switching to fuel from other tanks, leads the Court to S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 121 conclude that the fuel in the Starboard Tank was indeed contaminated. The Plaintiffs' claim is thus supported by the evidence presented, and the Court finds in their favour on this issue. Source of water [268] The Court next examines KJ Heer's analysis regarding the origin of water contamination in the diesel fuel of the Vessel. The argument presented by KJ Heer suggests that water could have entered the fuel system at any point between the storage tanks and the engine and generator. However, the evidence and testimony examined raise substantial doubts regarding this hypothesis. [269] Firstly, KJ Heer's statement that water could have entered the fuel system is not founded on concrete evidence but is rather a speculative assertion. He concedes that this is merely a possibility without providing a substantive basis for his claim. Crucially, during cross-examination, KJ Heer admits to not having inspected the Vessel, nor did he find any defects or damage that could lead to such a conclusion. This lack of direct investigation into the Vessel's condition significantly undermines the credibility of his hypothesis. [270] Further, KJ Heer acknowledges the robust and sturdy nature of the Vessel, a Trintella A. His admission that the boat, despite being old and in need of maintenance, did not exhibit any current defects or damage that he could report, S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 122 weakens the argument of a leak or water ingress through the hull or components of the Vessel. [271] Surveyor Domnic conducted an inspection focusing on the integrity of the Vessel's hull and any potential defects or damage that might have allowed water ingress. His findings revealed no such issues, further supporting the contention that the Vessel was structurally sound and unlikely to have allowed water ingress through leaks. [272] KJ Heer's suggestion that water could have entered the fuel system via a water-cooled heat exchanger is also refuted. Ronan clarifies, with KJ Heer’s concurrence, that the Vessel is not equipped with a fuel cooler, negating this proposed route of water ingress. [273] In conclusion, the Court finds that KJ Heer has failed to provide a plausible explanation for the source of water contamination in the diesel fuel. His suggestions lack evidentiary support and do not align with the factual circumstances as established through testimonies and inspections. The absence of any demonstrated defects, damages, or structural weaknesses in the Vessel further diminishes the likelihood of his proposed water ingress pathways. Therefore, the Court does not find KJ Heer’s hypothesis concerning the source of the water contamination to be persuasive. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 123 Assessment of Ronan’s credibility [274] A point of concern raised by the Defendant is the credibility of Ronan as a witness given that he is a party in this suit. [275] In addressing the credibility of Ronan's evidence, it is essential to consider the manner and context in which his actions and communications were conducted, especially in light of the Defendant’s efforts to portray him as biased. The sequence of events and actions taken by Ronan, as Master of the Vessel, demonstrate a consistent and rational approach to identifying and resolving the issue of the alleged contaminated fuel supplied by the RLYC Marina. [276] The Court observes Ronan's immediate initiative upon suspecting contamination – seeking a joint survey of the Vessel in Male on 19.7.2018 and subsequent steps to investigate and resolve the issue. This underscores his genuine concern and objective approach. His actions, ranging from the request for a joint survey to the sampling of fuel, communication with the RLYC for clarification on potential contamination, and the pursuit of amicable settlement, reflect a proactive and transparent effort to address the problem. These steps are consistent with the expectations of a responsible and experienced master, keen on resolving a critical issue affecting the Vessel. [277] The lack of response from the Defendant, particularly its refusal to participate in a joint survey and the failure to S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 124 provide essential information such as fuel batch certificates and sales records until compelled by Court order, contrasts sharply with Ronan's earnest attempts. This disparity in responsiveness is telling. The Defendant’s disinterest in investigating a serious complaint of fuel contamination, despite having reasonable means to do so, points to a lack of diligence and raises questions about their commitment to resolving the issue. [278] Furthermore, Ronan's qualifications and experience, both as a sailor and an expert in bulk fuel installations, lend significant weight to his testimony. His direct involvement in the events, coupled with his technical background, provides a credible foundation for his assertions. This is in stark contrast to KJ Heer, the Defendant’s expert, whose approach and conclusions appear to stray from the fundamental purpose of his engagement – to ascertain whether the fuel supplied at the RLYC Marina was contaminated. KJ Heer's hypothesis regarding the Starboard Tank and his failure to focus on the integrity of the RLYC fuel installation reflect a deviation from his expected role as an independent expert. [279] In conclusion, the evidence presented by Ronan, supported by his actions, expertise, and the corroborating documentary evidence, establishes a credible and coherent account of the events and issues at hand. His efforts to resolve the matter amicably and his clear, consistent communication with the Defendant contrast with the S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 125 Defendant’s lack of appropriate response and KJ Heer's unconvincing expert testimony. WHETHER THE PLAINTIFFS HAVE SATISFIED ITS BURDEN OF PROOF ON A BALANCE OF PROBABLITIES [280] The legal framework for assessing causation and remoteness of damage in both contract and tort is indeed pivotal in this case. Section 101 of the Evidence Act 1950 clearly mandates that the Plaintiffs bear the burden of proof on a balance of probabilities to establish all elements of the breach of contract and tort. This provision stipulates that whoever asserts the existence of facts in Court must prove those facts exist, placing the onus of proof on the party making the assertion. [281] The standard of proof in civil proceedings, as highlighted in Miller v Minister of Pensions [1947] 2 All E.R. 372 a decision of the English High Court, is distinct from that in criminal cases. It does not require absolute certainty but rather that it is more probable than not that the alleged event occurred. If the evidence tilts the balance one way or the other, the tribunal must decide accordingly. However, if the probabilities are equal, the burden is not discharged. [282] Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 (House of Lords) further clarifies that there is only one civil standard of proof, which is the balance of probability. This means that the Court must be satisfied that an event's S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 126 occurrence was more likely than not, based on the evidence presented. This principle also acknowledges that the inherent improbability of an event is a factor in weighing the probabilities. Therefore, the more serious or less likely an allegation, the stronger the evidence required to establish it on the balance of probabilities. [283] In Dato’ Pardip Kumar Kukreja & Anor v Vell Paari a/l Samy Vellu [2016] 4 MLJ 649 (Court of Appeal), the Court elucidated that the burden of proof is twofold: establishing a case and introducing evidence. The party bearing this burden must do so throughout the trial, satisfying the balance of probabilities standard. Once this party discharges their burden, the evidential burden shifts to the other party. However, if the original burden is not met, the opposing party is not obligated to adduce any evidence. [284] Therefore, in the present case, it is incumbent upon the Plaintiffs not only to respond to the Defendant’s defences but also to actively prove their case. They must demonstrate, on the balance of probabilities, that the damage to the Vessel was a direct result of the Defendant’s failure to supply good quality fuel. [285] In this case, although there is sufficient evidence that on a balance of probabilities that the Vessel had experienced no earlier issues before refuelling at the RLYC, the fuel in the storage tanks of the Vessel before the refuelling at the RLYC was clean, the Vessel only encountered problems S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 127 with her engine after the fuel uplift from the RLYC Marina, the Vessel was in good condition and seaworthy which removes the possibility of seawater ingressing into the Vessel tanks, the Vessel did not take any seawater during the voyage and the Vessel sustained the engine and electrical damage caused by contaminated fuel, there is no direct evidence for the cause of the fuel contamination: How did the saltwater get into the fuel? The issue at hand is whether the Court can determine that the damage to the Vessel was proximately caused by contaminated fuel supplied by the Defendant, despite the absence of direct evidence pinpointing the cause of the fuel contamination. [286] In dealing with this issue, I turn to the cases of Vinmar International Ltd & another v Theresa Navigation SA [2001] 2 All ER (Comm) 243, a decision of the Commercial Court of the Queen’s Bench Division, Galoo Ltd (in liq) v Bright Grahame Murray (a firm) [1995] 1 All ER 16 (English Court of Appeal) and Gimpex Ltd v Unity Holdings Business Ltd and others [2005] 2 SLR 686 (Singapore Court of Appeal) for guidance. These cases emphasise that establishing causation does not require absolute certainty; rather, it requires a determination of what is more likely than not, based on the evidence presented and the application of common sense. [287] In Vinmar International Ltd, the case concerned Vinmar International's claim against Theresa Navigation for damages due to the contamination of ethylene, caused by S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 128 the defendant's vessel being unfit for carriage, exacerbated by Vinmar's decision to continue loading despite knowledge of the contamination. The issue was the contamination of a cargo of ethylene by butadiene on the defendant shipowners' vessel. The defendants admitted their vessel was unfit for carrying ethylene due to failure in purging the previous cargo of butadiene, leading to contamination. However, they argued that the decision by the cargo's owners to continue loading the cargo, despite knowing the Vessel's unsuitability, severed the causal link between their breach and the loss suffered. The court, in this case, was required to decide whether this decision to continue loading was a sufficiently reasonable action to break the chain of causation between the breach and the full cargo's contamination. [288] The approach taken by the court in Vinmar, relying on Galoo Ltd, a case relating to claims of negligence against auditors for inaccuracies in financial audits leading to substantial financial losses and misguided investments, highlights that causation is a matter of fact and common sense. In Galoo, it was stated: “The passage which I have cited.... make it clear that if a breach of contract by a defendant is to be held to entitle the plaintiff to claim damages, it must first be held to have to have been and ‘effective’ or ‘dominant’ cause of his loss. …. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 129 How does the Court decide whether the breach of duty was the cause of the loss or merely the occasion for the loss? The answer in my judgment is supplied by the Australian decisions to which I have referred, which I hold to represent the law of England as well as Australia, in relation to a breach fo duty imposed on a defendant whether by contract or in tort in a situation analogous to breach of contract. The answer in the end is ‘By the application of the Court’s common sense’.” [289] The court in Vinmar examined the context of the alleged breach or intervening act to determine whether it should be regarded as the effective or dominant cause of the loss. This involves a careful analysis of the circumstances surrounding the breach and the subsequent events. The emphasis is not on the presence of direct evidence but on the logical and reasonable inferences that can be drawn from the facts at hand. [290] In applying these principles to cases without direct evidence of causation, the court relied on constructing a narrative that logically follows from the known facts. This includes examining the sequence of events, the nature of the actions taken by the parties involved, and the reasonable expectations and practices in the specific context. The court also considered the inherent probability or improbability of an event as a factor in weighing the probabilities. [291] Ultimately, the court's decision on the effective cause of loss was grounded in a reasoned analysis of all available evidence, using common sense to fill in gaps where direct S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 130 evidence is lacking. This approach allows for a comprehensive and fair assessment of causation, even in complex situations where direct evidence may not be readily available. [292] In the case of Gimpex, the court adeptly demonstrated the process of determining the effective cause of loss in the absence of direct evidence, relying primarily on the application of common sense and the careful evaluation of circumstantial evidence and the inferences drawn from it. [293] The case centres on Gimpex's allegations of breach of contract and conspiracy for delivering inferior quality coal, leading to a legal dispute over the authenticity of quality inspection reports and a consideration of corporate liability and fraud claims. A key issue revolved around the defendant's refusal to conduct a joint inspection of the coal cargo upon arrival in Karachi. This refusal was significant because Gimpex, the plaintiff, proposed the inspection as a means to verify the quality of the coal, which they alleged was substandard due to the defendant’s fraudulent actions. the defendants, by refusing this inspection, raised questions about their motivations and the actual quality of the coal, as such inspections are standard practice in resolving disputes over cargo quality. [294] The court's method in this scenario involved a detailed examination of the defendants' actions and their responses to the proposal for a joint inspection. the defendants offered S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 131 several reasons for their refusal, including reliance on a previous report which they claimed was final and binding, and concerns regarding the fairness of the inspection due to the coal’s pilferage and perceived threats to their representative. These explanations were critically assessed by the court, which weighed their credibility and reasonableness. [295] Furthermore, the court paid close attention to the manner in which these explanations were presented over time. The defendants' initial response was to dismiss the joint inspection as pointless, a stance that was later supplemented by the additional explanations. This evolution in their response played a key role in the court's assessment, as the initial dismissal and the later, more detailed justifications were weighed against each other. the defendants' failure to provide these reasons in their initial response to the joint inspection proposal diminished the credibility of their later arguments. [296] In its deliberations, the court considered whether it was reasonable to infer that the defendants' refusal to inspect was indicative of their knowledge that the coal was of inferior quality. This inference was drawn by examining the defendants' actions within the broader context of standard industry practices and the specific circumstances of the case. Although the court recognised some legitimacy in the defendants' concerns, it also noted the impact of their initial S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 132 dismissal and the evolution of their explanations on the overall credibility of their position. [297] The approach taken by the court in Gimpex highlights how inferences, drawn from the analysis of actions, responses, and the credibility of explanations provided by parties, can be crucial in determining the effective cause of loss in cases where direct evidence is not available. [298] Applying the principles derived from the cases of Vinmar International Ltd, Galoo Ltd and Gimpex to the facts of this case, this Court starts its analysis by examining the historical events leading up to the incident and the condition of the Vessel. [299] The Vessel’s condition prior to the incident is a foundational element in this analysis. After undergoing extensive maintenance at Northern Shipyard, Langkawi, for about seven months until June 2018, the Vessel was in a state of confirmed seaworthiness. This maintenance included cleaning of all four fuel tanks and replacement of all fuel system filters. Sea trials on 21.5.2018 and 22.5.2018 revealed no pre-existing fuel contamination issues. This effectively sets a baseline, indicating that the Vessel was in good condition before refueling at the RLYC on 4.7.2018, where she uplifted 1,615.85 litres of diesel fuel. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 133 [300] The critical issue arises when the Vessel began using fuel from the Starboard Tank, primarily filled at the RLYC, on 12.7.2018. Following this, there were immediate engine troubles, characterised by smoking and overspeed, which resulted in significant damage. The temporal proximity of these issues to the refueling at the RLYC, combined with the absence of any such problems prior to this event, strongly points towards the RLYC fuel being the source of contamination. [301] Supporting this inference is the analysis of the fuel samples from the Vessel's Starboard Tank, which showed high water and sodium content, indicative of seawater contamination. This scientific evidence aligns with the timing of the Vessel's engine malfunction, further implicating the fuel supplied by the RLYC. [302] In the vein of Gimpex, the Court also evaluates the Defendant’s response to the incident. The failure of the Defendant to conduct joint inspections or sample testing, despite being standard industry practice in fuel contamination cases, is particularly telling. This inaction in the face of a major safety incident not only questions the Defendant's conduct but also aligns with Gimpex’s emphasis on the importance of evaluating actions and responses in determining causation. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 134 [303] Moreover, no alternative explanation for the contamination has been credibly presented. The Plaintiffs’ assertion that the incident would not have occurred ‘but for’ the fuel uplifted at the RLYC stands strong in the absence of a plausible alternative source of contamination. [304] Operational issues at the RLYC further compound the Defendant’s challenges. The lack of a proper fuel selling license and absence of maintenance records for the fuel installation system during the relevant period raise questions about the integrity and reliability of their operations. [305] In conclusion, after a careful and thorough analysis of all the evidence presented, and applying the Vinmar, Galoo and Gimpex approach of logical and common-sense inference to the facts of the case, the Court finds that it is more probable than not that the contaminated fuel, which caused significant damage to the Vessel, was supplied by the Defendant at the RLYC. This finding is based on the sequence of events, the condition and maintenance history of the Vessel, the analysis of the contaminated fuel, the Defendant’s response to the incident, the lack of any alternative explanation for the contamination, and concerns regarding the Defendant’s operational practices. The Plaintiffs have, therefore, successfully discharged their burden of proof on a balance of probabilities. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 135 WHETHER THE PLAINTIFFS ACTED REASONABLY TO MITIGATE THEIR LOSSES AND DAMAGES [306] On the issue of mitigation, the Court finds that the Plaintiffs have demonstrated a diligent and appropriate response to the suspected fuel contamination, effectively balancing immediate action with practical limitations, thus fulfilling their duty to mitigate losses under challenging circumstances. [307] The evidence presented by the Plaintiffs, specifically Ronan and crew member Gunther, demonstrates a clear and immediate response to the suspected contamination of the fuel supplied to their Vessel. The steps taken by the crew upon suspicion of contaminated fuel are indicative of a prudent and measured approach to mitigate the potential damage to the Vessel and safeguard the safety of her crew. [308] The crew's decision to drain the fuel from the Day Tank, which was drawn from the Starboard Tank, and their subsequent use of fuel from the Port and Centre Tanks for the remainder of their journey to Male, was a rational and necessary response to a critical situation. Their actions demonstrate an awareness of the potential risks and a commitment to mitigating further damage to the Vessel. Moreover, the conservative motoring speed adopted by the crew further illustrates their conscientious effort to minimise any additional harm that could be caused by the suspected contaminated fuel. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 136 [309] The necessity of these actions is underscored by the circumstances the Vessel found itself in – stranded mid- ocean, reliant on wind conditions for navigation, and facing the imperative of reaching Male as quickly and safely as possible. The crew's actions were not only appropriate but essential under the circumstances. [310] Furthermore, the complete defueling of the Starboard Tank in Male, coupled with the necessary repairs to the injection pump, injectors, and engine oil replacement, evidences a thorough and proactive approach to addressing the contamination issue. The absence of any further damage reported during the Vessel's passage from Male to Cochin to Langkawi, following these remedial actions, corroborates the effectiveness of the measures taken by the Plaintiffs. [311] Regarding the Plaintiffs' decision not to charter a similar yacht while their Vessel was docked in Boustead Langkawi Shipyard, Ronan's explanation that such an action would have been prohibitively expensive is a reasonable justification. Opting for an alternative holiday instead represents a sensible and cost-effective approach to mitigating losses, particularly in the context of the unforeseen and substantial expenses already incurred due to the fuel contamination. [312] In conclusion, the Plaintiffs have demonstrated a diligent and responsible approach to mitigating the losses and damages caused by the suspected contaminated fuel. Their S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 137 actions were appropriately tailored to the urgent and challenging situation they faced, balancing the need for immediate action with the practical limitations of their circumstances. Therefore, the Court finds that the Plaintiffs fulfilled their duty to mitigate their losses effectively and reasonably under the given circumstances. LIABILITY [313] The central question for determination by this Court is whether, based on the evidence presented, the Defendant can be held liable for either breaching a contract or committing negligence. This involves considering whether the Defendant breached an implied duty of care and/or Section 16 of the Sale of Goods Act 1957 (“SOGA”) by supplying contaminated diesel fuel, leading to damage to the Plaintiffs’ Vessel. The Court will examine the conditions under Section 16 of SOGA, particularly the requirements regarding the fitness of goods for a specific purpose and the reliance on the seller's skill and judgment. Additionally, the Court will assess the principles of negligence, as established in relevant legal precedents, to determine whether the Defendant owed a duty of care in supplying good quality fuel and whether there was a breach of this duty that caused damage to the Vessel. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 138 Breach of implied duty of care and/or Section 16 of the Sale of Goods Act 1957 [314] The Plaintiffs contend that the Defendant supplied diesel fuel that was contaminated, leading to significant damage to their Vessel and this contamination was a direct result of the fuel supplied by the Defendant at the RLYC Marina. The Plaintiffs submit that the Defendant has breached an implied duty of care and/or Section 16 of SOGA by providing fuel that was not reasonably fit for the purpose for which it was required, nor of merchantable quality. [315] Section 16 of SOGA implies a condition that goods sold should be reasonably fit for the particular purpose for which they are purchased, provided the buyer makes known to the seller the specific purpose for which the goods are required, and relies on the seller's skill and judgment. Section 16 provides: “(1) Subject to this Act and of any other law for the time being in force, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows: (a) Where the buyer, expressly or by implication makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply (whether he is the manufacturer or producer or not) there is an implied condition that the goods shall be reasonably fit for such purpose: S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 139 Provided that, in the case of a contract for the sale of a specified article under its patent or other trade name there is no implied condition as to its fitness for any particular purpose.” [316] In Union Alloy (M) Sdn Bhd v Sykt Pembenaan Yeoh Tiong Lay Sdn Bhd [1993] 3 MLJ 167 (High Court), the Court articulated four preconditions for Section 16(1)(a) of the Sale of Goods Act: the buyer must make known the specific purpose for the goods, demonstrate reliance on the seller's skill and judgment, the goods must be within the seller's normal business scope, and if specific, the goods must not be sold under a patent or trade name. It was observed: “…..there are four preconditions laid down in s 16(1)(a). These preconditions are: (a) the buyer must make known to the seller the particular purpose for which the goods are required; (b) it must shown that there was reliance by the buyer on the seller's skill and judgment, and the buyer must in fact rely on the seller to supply suitable goods; (c) the goods must be of a description which it is in the course of the seller's business to supply; and (d) if the goods are specific, they must not be sold under their patent or trade name.” [317] Applying these principles to the current case, the Plaintiffs have satisfactorily established the preconditions for the application of Section 16 of SOGA. Firstly, as operators of the RLYC Marina, the Defendant was undoubtedly aware of the specific purpose for which the fuel was required, namely for refuelling the Vessel for her intended voyage. This S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 140 specific purpose was made known to the Defendant when the purchase was made. Secondly, there was a clear reliance by the Plaintiffs on the Defendant’s skill and judgment in supplying quality fuel suitable for the Vessel, given the Defendant’s business of supplying fuel to boaters at an award-winning marina. Thirdly, the Defendant is in the regular business of supplying fuel, which aligns with the third precondition. [318] The evidence presented unequivocally demonstrates that the fuel supplied by the Defendant was contaminated, leading to significant damage to the Vessel. This contamination and the resultant damage affirm the Defendant’s breach of the implied terms under Section 16 of SOGA to supply fuel that was of good quality and fit for the intended purpose. [319] Moreover, the Defendant’s failure to provide essential maintenance records, to carry out necessary tests, and to call pertinent witnesses or offer a reasonable explanation for these omissions further corroborates the Plaintiffs' claim. In accordance with Section 114(g) of the Evidence Act 1950, this Court is inclined to draw an adverse inference against the Defendant for these failures. It is reasonable to infer that, had these documents and witnesses been produced and called, they would have evidenced that the RLYC bulk fuel installation was not maintained to the required standards. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 141 [320] In light of the aforementioned, it is the finding of this Court that the Defendant has breached the implied duty and the provisions under Section 16 of SOGA. The fuel supplied by the Defendant was not reasonably fit for the purpose for which it was purchased and was not of merchantable quality, resulting in substantial damage to the Vessel. Breach of duty of care to supply good quality fuel [321] The Court also considers the question of whether the Defendant breached its duty of care in supplying good quality fuel, resulting in damage to the Plaintiffs' Vessel. [322] The principles of negligence, as articulated in Arab Malaysian Finance Bhd v Stephen Phoa Cheng Loon & Ors [2003] & Ors [2003] 1 MLJ 567 (Court of Appeal), Caparo Industries Plc v Dickman [1990] 2 AC 605, (House of Lords) and Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors [2006] 2 MLJ 389 (Federal Court) are relevant to this determination. [323] In Arab Malaysian Finance Bhd, the appellants appealed against a High Court decision finding them liable for negligence and nuisance following the collapse of a tower block in Taman Hillview, Highland Towers, which rendered adjacent blocks worthless due to concerns of safety and stability. The Court of Appeal stated that the plaintiff must demonstrate a duty of care owed by the defendant, a breach of that duty, causation linking the breach to the S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 142 harm, and damage suffered by the plaintiff that is not too remote. [324] In Caparo, a public limited company sued its directors for fraudulent misrepresentation and its auditors for negligence in auditing and reporting, alleging reliance on inaccurate accounts for share purchases and a company takeover. It was explained that for a duty of care to exist, there must be foreseeability of damage, a legally recognised relationship of 'proximity' or 'neighbourhood' between the parties, and a context in which it is fair, just, and reasonable for the law to impose such a duty. [325] The Majlis Perbandaran Ampang Jaya (MPAJ) case also relates to the Highland Towers collapse. The respondents sued the local authority MPAJ for negligence and nuisance following a landslide and the subsequent collapse of one apartment block, with the courts examining MPAJ's pre- and post-collapse liabilities, leading to appeals regarding the extent of these liabilities and the nature of the respondents' legal claims. The Federal Court applied the general duty of care test from Caparo to all negligence claims, including those for pure economic loss, focusing on three key aspects: the foreseeability of the damage, the proximity between plaintiff and defendant, and the fairness and reasonableness of imposing a duty of care. [326] Applying these principles to the current facts, it is evident that the Defendant owed a duty of care to the Plaintiffs. As a S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 143 supplier of diesel fuel to yachts, including the Plaintiffs' Vessel, it is reasonably foreseeable that supplying contaminated fuel could result in damage to the Vessel. This aligns with the first element of the Caparo test – foreseeability of damage. [327] Regarding proximity, the relationship between the Defendant, as the operator of the RLYC Marina fuel pump, and the Plaintiffs, as users of the bunkering services, establishes a close and direct connection. This satisfies the second element of the Caparo test. Furthermore, considering the nature of the relationship and the reliance placed by the Plaintiffs on the Defendant to supply good quality fuel, it is both fair and reasonable to impose a duty of care on the Defendant for the benefit of the Plaintiffs. [328] The evidence presented, clearly indicates that the Vessel sustained damage subsequent to refuelling at the RLYC Marina. The contamination of the fuel onboard the Vessel, which has been identified as the causative factor for the damage, and the absence of any other probable cause for such damage, point towards a breach of the duty of care by the Defendant. The Defendant’s contentions against the source of the contamination are not supported by the evidence, which overwhelmingly suggests that the contaminated fuel originated from the RLYC Marina fuel pump. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 144 [329] Given these findings, it is the finding of this Court that the Defendant has breached its duty of care to supply good quality fuel to the Plaintiffs. The Defendant’s actions, or lack thereof, have directly caused the damage to the Vessel, leading to their subsequent loss and damages. WHETHER THE PLAINTIFFS SUFFERED THE LOSS AND DAMAGES CLAIMED [330] The Plaintiffs seek compensation for a series of losses stemming from the supply of contaminated fuel to the Vessel. This claim encompasses a spectrum of damages, categorised under three primary heads: direct and consequential loss arising from the contaminated fuel, loss of use of the Vessel, and damages pertaining to non- pecuniary losses such as mental distress and disruption of plans. The Plaintiffs laid out their case by detailing the specific financial and emotional tolls incurred which range from the initial costs of the contaminated fuel, subsequent cleaning and disposal expenses, to extensive repair and storage costs. Additionally, they claim for costs for fuel testing, additional crew wages, and flight expenses necessitated by the emergency resulting from the contaminated fuel. Further, the Plaintiffs claim expenses related to alternate accommodation, replacement holidays, and medical treatment due to the severe stress and trauma suffered. The loss of use of the Vessel is also a component of the claim. The Plaintiffs also claim for the assault on feelings, mental distress, and disruption to their lives. The S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 145 detailed documentation provided in support of these claims, comprising testimonies and extensive documentary evidence, forms the foundation of the Plaintiffs' case. [331] In this case, the assessment of damages claimed by the Plaintiffs encompasses both contract and tort law principles, applicable to all three heads of damages: direct and consequential loss from contaminated fuel, loss of use of the Vessel, and non-pecuniary losses such as mental distress. [332] Section 74 of the Contracts Act 1950, mirroring the principles set out in Hadley v Baxendale [1854] 9 Ex 341 (Court of Exchequer), provides the basis for calculating damages in breach of contract cases. It states that the party suffering from a breach is entitled to compensation for losses which either naturally arose from the breach or were within the contemplation of the parties at the time of contract formation. This includes foreseeable losses directly linked to the breach. Therefore, for the first head of damages - direct and consequential loss arising from the contaminated fuel - this principle is directly applicable. It encompasses the cost of the contaminated fuel, cleaning, disposal, repair costs, and other expenses directly resulting from the breach. [333] However, the application of tort law principles broadens the scope of recoverable damages. According to Lord Blackburn in Livingstone v Rawyards Coal Co. [1880] 5 S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 146 App. Cas. 25, 29 (House of Lords), the purpose of damages in tort is to place the injured party in the position they would have been in had the wrongful act not occurred. This principle is particularly relevant to the Plaintiffs' claims for loss of use of the Vessel and non-pecuniary losses. These damages, while not traditionally recoverable in a strict contractual context, are considered under tort law, especially when they result in significant alteration to the Plaintiffs' lifestyle and plans. [334] The principle of remoteness of damages applies both in contract and tort. It limits recovery to losses that were foreseeable at the time the contract was made or at the time of the tortious act. Thus, for each head of claim, the Court will evaluate whether the Defendant could have foreseen that the supply of contaminated fuel would not only lead to the need for repairs but also result in the loss of use of the Vessel and cause significant emotional and psychological distress to the Plaintiffs. [335] The burden of proof, as reinforced by Lord Goddard in Bonham-Carter v Hyde Park Hotel Ltd [1948] 64 TLR 177 (English High Court) and subsequent cases such as Tan Sri Khoo Teck Puat & Anor v Plentitude Holdings Sdn Bhd [1994] 3 MLJ 777 (Federal Court), rests on the Plaintiffs. They must substantiate their claim with clear and convincing evidence. This involves a detailed examination of the documentary evidence provided to support the quantum and nature of the damages claimed. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 147 [336] The adjudication of damages in this case will therefore involve a nuanced application of both contract and tort law principles. The Court will critically analyse the evidence presented, in light of the established legal frameworks, to ensure that any damages awarded appropriately reflect the nature and extent of the loss suffered by the Plaintiffs, and were within the reasonable foresight of the Defendant at the relevant time. Direct and consequential loss arising from the contaminated fuel [337] Under the head of direct and consequential loss arising from the contaminated fuel, the Plaintiffs claim a total of USD193,959.19. These are detailed by the Plaintiffs in Appendix C of the Plaintiffs’ Written Submissions. [338] In summary, this figure includes the initial cost of contaminated fuel purchased at the RLYC Marina, amounting to USD1,234.28. Significant expenses were incurred for repairs, storage, and replacement of parts damaged by the contamination, including a replacement injector pump and injectors from PB Asher and Bartech Marine, costing USD3,595 and USD4,678.22 respectively. Additional costs for labour, testing, and air freight of the injector pump totaled USD881.55. The vessel underwent extensive storage, works, and part replacements in Male, Maldives, and Cochin, India, leading to charges of USD15,922.82 and USD4,017.42 respectively. The S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 148 generator starter motor replacement cost USD1,943.94, while extensive repairs at Boustead Langkawi Sdn Bhd totaled USD60,262.56. The Plaintiffs also had to purchase a new Cummins Onan Genset for USD20,498.88 after the installed generator was wrecked. [339] Additionally, the anti-foul paint, essential for the Vessel’s maintenance, cost USD3,520, and moving the new generator into the yacht incurred USD605.50. Reimbursements for batteries purchased by a crew member, Justin Hoye-House, amounted to USD188.87. The Plaintiffs received an insurance payout of USD40,305.45, which reduced their net claim for these damages to USD75,862.95. Fuel testing costs done through Intertek UK were also claimed, with Test 1 and Test 3 costing USD625.90 and USD362.00 respectively. Crew wages and expenses for additional crew brought in for emergency repairs, surpassed USD10,000, including payments to various crew members and the cost of their flights. [340] The Plaintiffs also incurred over USD30,000 for alternate accommodation and travel while the Vessel was uninhabitable, including various hotel stays across Europe and Malaysia. The total costs for these accommodations are detailed in a series of transactions, demonstrating the prolonged and widespread impact of the incident on the Plaintiffs. Furthermore, the Plaintiffs had to arrange for a replacement family holiday due to the Vessel being unavailable, incurring significant costs at locations like the S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 149 Conrad Maldives and Casa Elisabeth Villa. Travel costs, including ferry and Eurotunnel charges. [341] Finally, administrative costs for managing the case, including services rendered by Lisa Powell and invoiced through her company, General Dogsbody Ltd, were also significant, totaling USD5,488.65. [342] The claims made by the Plaintiffs are substantiated through a comprehensive collection of documents and financial records. Firstly, the purchase of contaminated fuel, amounting to USD1,234.28, is evidenced by sales vouchers and Visa statements confirming the transaction. Invoices from PB Asher and Bartech Marine support the claims for replacement injector pumps and injectors, totaling USD8,273.22. The testing and air freight costs of USD881.55 are validated by additional commercial invoices from PB Asher. The storage and repair costs in Male, Maldives, and Cochin, India, totaling USD19,940.24, are corroborated by detailed invoices from Maldives Yacht Support and Unicorn Enterprises, along with bank statements showing corresponding payments. The expenditure on a new Cummins Onan Genset generator, amounting to USD20,498.88, is confirmed by invoices from Tripower Corporation and bank payment advice. [343] Moreover, the Plaintiffs have bank statements and receipts to confirm payments for crew expenses, including wages, daily funds, and flight costs, which exceed USD10,000. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 150 Accommodation costs during the repair period, exceeding USD30,000, are substantiated by receipts from various hotels across Europe and Malaysia, and documentation for alternative accommodation and a replacement family holiday. Administrative services fees of USD5,488.65 charged by Lisa Powell through General Dogsbody Ltd are validated by an invoice. Altogether, these documents form a robust evidentiary base, supporting the Plaintiffs' total claimed expenses of USD193,959.19. Analysis and findings [344] In assessing the Plaintiffs’ damages the Court has carefully considered the evidence presented by the Plaintiffs, particularly the testimonies of Ronan and Lisa Powell, and the supporting documentation they provided. The Plaintiffs have meticulously documented their losses, supported by invoices, bank statements, payment receipts, and other relevant documents, all of which are crucial in determining the veracity and extent of the claimed damages. [345] Lisa Powell, who functioned as Ronan's personal assistant, played a pivotal role in sourcing, ordering, and making payments for the various parts and expenses related to the Plaintiffs' claim. Her testimony, as laid out in WS-PW8 was crucial in explaining each item of loss. The accuracy and completeness of her record-keeping, encompassing Ronan's bank account movements, expenses, and all S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 151 invoices, communications, and supporting documents, lend substantial credibility to the Plaintiffs' claim. [346] Significantly, all costs claimed by the Plaintiffs were paid in full, as evidenced by the documentation presented. These costs, as outlined by PW8, were incurred in various currencies but have been consistently converted to USD at the prevailing exchange rate on the respective dates of payment. This methodical approach to accounting, while not challenged or contradicted by any other evidence, provides a reliable basis for assessing the quantum of damages. [347] On the Defendant's challenge to the credibility of the damages claimed by the Plaintiffs due to the absence of evidence specifying the source of exchange rates used for currency conversion to USD, the Court finds that the Plaintiffs have sufficiently addressed this challenge. [348] The core of the Defendant's argument lies in questioning the authenticity of the amount of damages claimed, highlighting that Lisa Powell failed to provide explicit evidence of the source of the exchange rates used for converting various expenses, incurred in diverse currencies such as Euros, MYR, Indian Rupees, and GBP, into USD. Lisa Powell, in her testimony, stated under oath that she converted these expenses to USD for the sake of consistency, using the exchange rates applicable on the dates the payments were made, which she sourced online. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 152 However, the precise source of these rates was not detailed. [349] It is pertinent to note that Lisa Powell's testimony was given under oath and remained unchallenged and uncontradicted by any other witness. This lends credence to her statement. In the absence of any contradictory evidence, and given that her method of conversion was uniform and based on the exchange rates on the specific dates of the payments, it is reasonable to rely on her testimony as a valid basis for the calculation of the total claim in USD. [350] Moreover, the Defendant has not presented any evidence to dispute the accuracy of the exchange rates used by Lisa Powell or to suggest any flaw in her method of conversion. The burden of proof in legal proceedings not only lies on the party making a claim but also requires the opposing party to present evidence if they dispute that claim. In this instance, the Defendant's objection to the Plaintiffs' method of currency conversion lacks substantiation in the form of counter-evidence or expert testimony. [351] Therefore, based on the evidence before the Court and the principles governing the burden of proof, the method employed by Lisa Powell for converting the various expenses into USD appears to be appropriate. The amounts claimed by the Plaintiffs as damages, thus, are credible. In the absence of concrete evidence from the Defendant countering this approach, the method adopted S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 153 by the Plaintiffs for calculating their total claim in USD is to be accepted. [352] On whether the Plaintiffs are entitled to recover for the losses sustained due to the fuel contamination incident that rendered Vessel inoperative and necessitated alternative accommodation and travel, the Court finds that the Plaintiffs are entitled to compensation for both the direct losses due to the damage to their yacht and the additional costs for alternate accommodation and travel. The claims are substantiated, reasonable, and proportionate to the losses suffered. [353] The Plaintiffs claimed for the costs incurred for alternative accommodation and travel, along with replacement holidays, consequent to the Vessel becoming uninhabitable. They submitted that all direct losses stemming from the incident are claimable, a position that aligns with established legal precedent regarding compensation for losses directly attributable to a breach of duty or wrongful act. [354] The Defendant contests the claim for alternative accommodation, pointing out that Ronan possesses homes in both the UK and New Zealand. However, this objection seems untenable in the context of the losses claimed. Lisa Powell, managing the affairs of Ronan, elucidated that Ronan's available residences during the material time were in New Zealand and on the Vessel itself. The New Zealand S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 154 property was under construction, and residency there was further restricted due to immigration regulations. Thus, the Vessel was not merely a luxury but a necessity for Ronan, underpinning the legitimacy of the claim for alternative accommodation and travel expenses. [355] The crux of this issue lies in the foreseeability of the loss. The operator of the RLYC Marina, responsible for the servicing of the Vessel, could have reasonably foreseen that damage to a yacht might result in her owners requiring alternative accommodation. The specific plans of the Plaintiffs, including the circumnavigation envisaged for most of 2018, are not central to this matter. The pivotal question is whether the Plaintiffs were deprived of the use of the Vessel, a consequence that was foreseeable by the Defendant. [356] In assessing the quantum of damages, the evidence presented by Lisa Powell is particularly instructive. Her analysis, encapsulated in the “Yacht Hire Comparison Sheet,” demonstrates that the weekly charter rate for a vessel comparable the Plaintiff’s Vessel would range between USD18,900 and USD29,600, with an average of USD23,894.00 per week. Considering that the Vessel was non-operational for approximately 63 weeks from 20.7.2018 to 4.10.2019, the cost of chartering a substitute vessel would approximate USD1,505,322.00. In contrast, the actual expenditure by the Plaintiffs on alternative accommodation and travel during this period was S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 155 USD56,702.72, substantially lower than the hypothetical charter cost. This disparity underscores the Plaintiffs' efforts to mitigate their losses. [357] On the Defendant's assertion regarding the ambiguity of the insurance payout and its failure to particularise the items of costs covered under the Vessel's insurance, it is necessary to examine the evidence and submissions provided by both parties in a judicious manner. [358] The Defendant argues that an insurance payment of USD40,305.45 by Charles Taylor Marine made to the Plaintiffs is unspecified and does not clearly indicate which items of loss are covered. This argument focuses on the Plaintiffs' claim for repairs, storage, marine supplies and services, replacement of parts, and accessories for the engines and equipment damaged, with a total claim of USD116,168.40 being reduced by the insurance payout, bringing the claim down to USD75,862.95. the Defendant points out that there is no breakdown of the items comprised in the said insurance payout, thus leaving it unclear which items of claim have been covered by the insurance of the Vessel. [359] However, upon a closer analysis of the evidence, this contention does not sufficiently discredit the Plaintiffs' claim. Ronan clarified that he made a claim under the Vessel’s H&M insurance for repairs to the Vessel and was reimbursed the sum of USD40,305.45. This is substantiated S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 156 by the Charles Taylor Form of Discharge, which confirms this payment as a “full and final settlement of all claims whether evident now or hereafter that may manifest arising directly or indirectly from the above incident.” The incident in question, as described in the reference of the letter, is the “Contaminated Bunkers and Subsequent Machinery Damage, 4/7/17 Langkawi”, directly linking the insurance payout to the damages sustained due to the contaminated fuel incident, which forms the crux of the Plaintiffs' claim in this action. [360] Furthermore, Ronan confirmed that this sum was to be deducted from the total loss suffered. Lisa Powell detailed that the total sum incurred for repairs, storage, marine supplies and services, replacement of parts, and accessories due to the Vessel damage was USD116,168.40, and that the insurance payout for damages sustained to the Vessel was USD40,305.45. This amount was duly deducted from the total cost of repairs, resulting in a balance of USD75,862.95. It was also clarified that the insurance payout was not used to offset any other items of claims such as fuel test costs, wages, flight costs, medical costs, and alternative accommodation and transport costs. [361] In light of the evidence presented, it is clear that the insurance payout of USD40,305.45 was specifically related to the damages sustained to the Vessel due to the contaminated fuel incident. The Plaintiffs have provided a S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 157 coherent and detailed account of how this sum was applied to the total claim, thereby addressing the Defendant's concerns regarding the specificity of the insurance coverage. Consequently, the Plaintiffs' method of accounting for the insurance payout in their total claim is found to be transparent, logical, and in accordance with the principles of compensatory damages as established in relevant case law. [362] Further, the principles established in the case of Aik Ming (M) Sdn Bhd & Ors v Chang Ching Cheung & Ors and Another Appeal [1995] 2 MLJ 770 (Court of Appeal) are indeed pivotal to the adjudication of the present matter. The Aik Ming principle underscores the imperative that a party's case must be comprehensively presented to the opponent's witnesses during cross-examination. A failure to do so can be construed as an abandonment of the pleaded case. This principle asserts that if a party, without valid reasons, refrains from challenging an aspect of the opponent's case during cross-examination, he may be barred from raising it subsequently in argument. [363] In the context of the current case, this principle has significant implications: a) Unchallenged Evidence: Several portions of the Plaintiffs' claim, particularly those pertaining to the various expenses incurred due to the contaminated fuel, were not expressly challenged by the Defendant S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 158 during the cross-examination of Ronan and Lisa Powell. According to the principle stated in Aik Ming, this lack of challenge or contradiction during the trial can be interpreted as an implicit acceptance of these claims by the Defendant. b) Application to the Present Case: the Defendant did not challenge the Plaintiffs' assertions regarding the conversion of various expenses into USD, the specifics of the insurance payout, and several individual items of expense, including those related to the repair and maintenance of the Vessel, medical fees, and the costs of alternative accommodation and travel. Consequently, in line with the Aik Ming principle, these unchallenged aspects of the Plaintiffs' claims are deemed to have been accepted by the Defendant. c) Implications for Judgment: Given the application of the Aik Ming principle, the Court is inclined to accept the Plaintiffs' claims in these unchallenged areas as valid and to include them in the computation of damages. This approach is consistent with the principle's emphasis on the necessity of thorough cross-examination and the consequences of failing to challenge crucial aspects of an opponent's case. [364] Therefore, in light of the above considerations and applying the principle from Aik Ming, the Court finds additional S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 159 support for awarding the damages as claimed by the Plaintiffs. the Defendant's failure to adequately challenge these claims during cross-examination signifies an acceptance of the Plaintiffs' assertions, thereby reinforcing the Plaintiffs' entitlement to the claimed damages. [365] The Defendant raises several specific challenges regarding the expenses claimed by the Plaintiffs in relation to the direct and consequential loss arising from the contaminated fuel. These challenges pertain to discrepancies in payments of various invoices from Intertek UK, PB Asher, Bartech, and others, questioned ownership of Visa statements, the personal nature of expenses initially paid by companies, and the necessity of alternative accommodation and travel expenses. The Court addresses these challenges below: a) The Plaintiffs claim compensation for the cost of contaminated fuel purchased at the RLYC Marina, totaling USD1,234.28, substantiated by a cash sales voucher and an invoice dated 4.7.2018, and a Visa statement confirming payment for 1,615 litres of fuel costing RM 4,944.50. The Defendant questioned the ownership of the Visa Statement due to the absence of the first page. However, Lisa Powell confirmed that this was indeed Ronan's statement, corroborated by entries on 18.7.2018 and 19.7.2018, which align with the Vessel's arrival at Male on 17.7.2018. The Court accepts this clarification as it S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 160 aligns with the uncontested arrival date of the Vessel at Male. b) The Plaintiffs claim USD625.90 for the cost of testing and analysing a fuel sample from their vessel, sent to Intertek UK on 30.7.2018, with an invoice dated 2.8.2018 for GBP511.20, and payment confirmed by a bank statement entry on 31.8.2018. The Defendant contested that this invoice was addressed and paid by Kemble Airfield Estates, not Ronan personally. Lisa Powell clarified that all expenses, though initially paid by the company, were personal expenses of Ronan, either reimbursed or accounted for as additional company drawings. This clarification is accepted, noting the personal nature of the expense. c) The Plaintiffs claim USD3,595 for the replacement of an injector pump, destroyed by salt water in contaminated fuel, purchased from PB Asher, with invoice dated 3.8.2018 for GBP2,980 and payment confirmed by bank statement and email on 2.8.2018 and 3.8.2018 respectively. Similar to the Intertek UK invoice, the Defendant disputed the personal nature of this expense. However, Lisa Powell's clarification follows the same rationale as above, and the Court accepts this explanation. Moreover, the invoice's address to Ronan's personal residence in New Zealand further substantiates the personal nature of this expense. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 161 d) The Plaintiffs claim USD4,678.22 for the replacement of injectors and spares, damaged by contaminated fuel, purchased from Bartech Marine, with an invoice dated 9.8.2018 for GBP3,820.90 and payment confirmed by a bank statement entry on 2.8.2018. The Defendant’s contention here mirrors that of the previous invoices. Lisa Powell's consistent clarification, coupled with the invoice being issued to Ronan personally, leads the Court to accept these expenses as personal to Ronan. e) The Plaintiffs claim USD881.55 for labour charges for testing and air freight of a replacement injector pump, to ensure correct setup in-field, supported by PB Asher's invoice dated 16.8.2018 for GBP720 and a bank statement entry confirming payment on 17.8.2018. Despite the missing first page of the Visa Statement, Lisa Powell's operation of Ronan's account and the payments from Kemble Airfield Estates being linked to Ronan’s personal account provide sufficient clarity. The Court finds these charges to be appropriately substantiated. f) The Plaintiffs claim USD15,922.82 for storage, works, and parts for the Vessel attended to in Male, Maldives, arranged by Maldives Yacht Support due to stringent local regulations, with a statement of accounts dated 17.9.2018 for USD25,241.81 and a bank payment advice confirming remittance on S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 162 24.9.2018. Lisa Powell's inability to distinguish which expenses related to the fuel incident is noted. However, the clarification that Ronan identified relevant expenses for the claim is found satisfactory. It is reasonable that Ronan, being intimately involved with the Vessel’s operations, could accurately attribute the expenses to the fuel incident. g) The Plaintiffs claim USD4,017.42 for charges for services and supplies incurred in Cochin, India, for interim repairs, evidenced by Unicorn Enterprises' invoice dated 8.10.2018 for Rs. 140,950, a bank statement entry confirming payment on 12.10.2018, and email confirmations of payment. The Defendant challenges this on the basis that the invoice was paid by Cotswold Airport Utilities and not Ronan personally. However, the pattern of expenses initially paid by a company but ultimately borne by Ronan personally is consistent. The Court accepts Lisa Powell's clarification in line with earlier explanations. h) The Plaintiffs claim USD1,943.94 for a generator starter motor, initially believed to be the sole issue before the generator was deemed scrap, supported by Hatton Marine & Industrial Rep's invoice dated 10.11.2018 and a bank statement entry confirming payment on 12.10.2018. The Defendant’s challenge on the non-utilisation of the starter motor is noted. However, Ronan’s testimony that the part was S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 163 initially thought necessary and later deemed unneeded due to the generator being scrap, is a plausible explanation. The Court finds this expense to be a reasonable consequence of the situation. i) The Plaintiffs claim USD20,498.88 for a Cummins Onan Genset to replace the installed generator wrecked by salt water in the fuel, substantiated by invoices from Tripower Corporation Pte Ltd dated 22.2.2019 and 11.6.2019, with payment confirmation on 25.3.2019. the Defendant challenges the claim for the Cummins Onan Genset, citing potential damage aggravation during a seven-month storage period. The Court accepts Ronan's unchallenged testimony that the genset replacement was necessitated by contamination damage, and there is lack of evidence supporting the Defendant's speculation on damage aggravation. j) The Plaintiffs claim USD900.87 for medical treatment in Cochin, India, for PTSD and acute stress experienced by Ronan and his partner due to the casualty, substantiated by several payments to medical facilities in October 2018 as evidenced by bank statements. The Defendant questioned the nature of these medical expenses. Ronan’s clarification that these expenses were for PTSD treatment following the fuel incident and food poisoning in Cochin is accepted. It is reasonable to S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 164 infer that the stress and trauma experienced would necessitate such medical intervention. k) The Plaintiffs claim USD60,262.56 for storage and repair works at Boustead Langkawi Sdn Bhd, including an insurance survey and urgent remedial works, substantiated by quotations, progress bills, official receipts, and bank statement entries confirming various payments made between November 2018 and October 2019. The Defendant’s inability to differentiate between repairs related to the incident and unrelated repairs is addressed by Ronan’s testimony. Given that the Vessel had recently undergone a full survey and dry dock, it is logical to conclude that subsequent repair works were predominantly due to the fuel contamination. The absence of cross-examination on this point further tilts the balance in favour of the Plaintiffs’ claim. l) The Plaintiffs claim USD5,000.00 for daily onboard crew living expenses, paid to Maldives Yacht Support Pvt Ltd, as confirmed by a Standard Bank Statement entry dated 31.7.2018, with no invoice issued for this payment. m) Despite The Defendant’s reservations about these expenses, Lisa Powell’s explanation that these were day-to-day living expenses for the crew, not wages, S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 165 is persuasive. The Court accepts that such expenses would be a necessary consequence of the Vessel’s extended stay in Male. n) The Plaintiffs claim USD721.20 for Justin Hoye- House's flight expenses from Miami, USA to Cochin, India for emergency repairs, as shown by a Gulf Air booking and a bank statement entry from September 2018, and USD1,706.34 for Sean Griffin's multiple flights, as evidenced by a Standard Bank Statement from October 2018 covering routes from Indonesia to Singapore, Singapore to Cochin, and back, and then to Australia. The Defendant argues that these expenses, related to an aborted arrangement, should not be claimable. However, Ronan’s explanation that these costs were incurred in anticipation of continuing the voyage, which was later frustrated due to the Vessel’s condition, is reasonable. The Court finds that these expenses were a direct consequence of the incident and are thus recoverable. o) The Plaintiffs claim USD886.56 for flight expenses for crew member Philip Diebert, as confirmed by a Standard Bank Statement entry on 6.11.2018 for his Malaysian Airlines ticket departing from Malaysia. The Defendant contends that these expenses would have been incurred irrespective of the Vessel’s condition. However, Ronan’s explanation that the flight was necessitated by the Vessel’s S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 166 immobilisation at Boustead Langkawi Shipyard is accepted. The expense is seen as a direct result of the incident. p) The Plaintiffs claim a total of USD23,900.36 for alternate accommodation and travel expenses incurred between 20.7.2018 and 4.10.2019 while the Vessel was uninhabitable, covering various hotel stays and USD1,803 for travel arrangements such as ferries and Eurotunnel trips, as evidenced by multiple bank statements and invoices. The Defendant question the necessity of these expenses. Ronan’s assertion that the uninhabitability of the Vessel due to the incident necessitated alternative arrangements is found convincing. The Court accepts that the Plaintiffs were deprived of their usual residence on the Vessel, making these expenses reasonable and foreseeable. [366] In conclusion, the Court finds the Plaintiffs’ clarifications and evidence on each disputed item of expense to be persuasive and reasonable. The evidence presented aligns with the logical consequences of the contaminated fuel incident, and The Defendant’s failure to adequately challenge key aspects of the Plaintiffs' claims during cross- examination further reinforces the Plaintiffs' position. Therefore, the Court rules in favour of the Plaintiffs for the claimed damages, accepting their explanations and evidentiary support over the Defendant’s objections. S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 167 Damages for loss of use [367] The next item for consideration is the Plaintiffs’ the claim for damages for the loss of use of the Vessel. The Plaintiffs have claimed damages for the period from 20.7.2018 to 30.9.2019, a total of 63 weeks, asserting that the Vessel was uninhabitable due to the fuel contamination. The claim is premised on the cost of chartering a substitute vessel, with weekly charter rates for a vessel of similar size and caliber estimated between USD 18,900 to USD 29,600. [368] The Court acknowledges the Plaintiffs' position that the Vessel, serving as a de-facto home and a means for circumnavigation, was unusable for a significant period. The Plaintiffs have attempted to mitigate their losses by not chartering a substitute vessel, which they argue would have been prohibitively expensive and logistically challenging, especially for the planned difficult passage through the Gulf of Aden and into the Red Sea and Mediterranean. [369] However, the Defendant contests the reasonableness of both the duration of the claimed loss of use and the method of calculating damages. They argue that the period of 63 weeks is excessive, noting that the Vessel was in use for part of this time and that the repairs at Boustead Langkawi Shipyard, particularly the replacement of the Northern Lights Generator, could have been completed more expediently. Furthermore, they challenge the Plaintiffs' approach of equating loss of use with the costs of chartering S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 168 a replacement vessel, suggesting that this would result in the Defendant paying more than the Vessel’s worth. [370] In evaluating these submissions, the Court finds merit in both parties' arguments. On one hand, the Plaintiffs are entitled to compensation for the loss of use of their vessel. On the other hand, the Court agrees with the Defendant that the claimed period of 63 weeks is excessive and that the method of calculating damages based on the cost of chartering a replacement vessel is not reasonable in this context. [371] Given these considerations, the Court determines that a more equitable measure of damages is required. As per the principles established in Beechwood Birmingham Ltd v Hoyer Group UK Ltd [2011] QB 357 (English Court of Appeal), where no substitute vessel was hired, the damages should be calculated based on the interest on the capital value of the Vessel. Using the capital value of USD800,000 as per Ronan's advertisement for the Vessel's sale and applying an annual interest rate of 5%, the Court finds it reasonable to award damages for the loss of use for a revised duration of 219 days. [372] Therefore, the Court awards damages for the loss of use of the Vessel at USD24,000.00. This figure reflects a balanced consideration of the Plaintiffs' loss and the need to avoid disproportionate compensation that would exceed the Vessel's value. This aims to provide equitable redress to the S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 169 Plaintiffs while ensuring that the damages awarded are proportionate and grounded in legal precedent. Assault on feelings, mental distress and anxiety, discomfort and inconvenience suffered [373] In addressing the Plaintiffs' claim for damages arising from assault on feelings, mental distress, anxiety, frustration, disappointment, discomfort, inconvenience, and loss of enjoyment, the Court carefully considers the submissions presented by both parties. The Plaintiffs contend that the contaminated fuel supplied by the Defendant led to a high- risk situation at sea, causing significant trauma and distress, especially to Ronan, the Master of the Vessel. The evidence presented, including testimonies from Ronan and Gunther, illustrates the severe emotional and psychological impact of the incident. [374] The Plaintiffs argue that the Defendant, as a bunker supplier and a service provider to yachters, should have foreseen the potential for serious harm and distress resulting from the supply of contaminated fuel. This argument is substantiated by referencing the reasonable foreseeability of distress in cases of negligence or breach of contract in supplying clean, good quality fuel. The Plaintiffs draw upon legal precedents, such as Perry v Sidney Phillips & Son [1982] 3 All ER 705 (English Court of Appeal), Heywood v Wellers [1976] 1 All ER 300 (English Court of Appeal), and Jarvis v Swan Tours Ltd [1973] 1 All ER 71 S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 170 (English Court of Appeal), to reinforce their claim for compensation for mental distress and inconvenience. [375] Conversely, the Defendant challenges the Plaintiffs' claim, noting that the alleged PTSD was not professionally diagnosed and questioning the reasonableness of attributing such distress to the fuel incident. They reference McGregor on Damages by James Edelman (20th Edition) and Watts v Morrow [1991] 4 All ER 937 (English Court of Appeal) to argue that mental distress alone is insufficient to ground an action in tort and that damages for mental distress in contract cases are typically limited to cases where the contract's purpose is to provide peace of mind or enjoyment. [376] Having considered these submissions, the Court acknowledges the severity of the situation faced by the Plaintiffs due to the Defendant's breach of contract/negligence. The Court accepts the Plaintiffs' submission that it was reasonably foreseeable for the Defendant, aware of the nature of yachts as pleasure crafts, that supplying contaminated fuel could cause significant distress and anxiety. The Court, therefore, finds that the Plaintiffs are entitled to compensation for the mental distress and inconvenience suffered. [377] However, the Court also takes into account the Defendant's arguments regarding the quantification of such damages. It is noted that the claim for mental distress is not based on a S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 171 diagnosed medical condition and that the contract at issue was primarily for the supply of fuel, not inherently for the provision of pleasure or peace of mind. Thus, while the Plaintiffs are entitled to compensation, it must be proportionate and not excessive. [378] Consequently, the Court determines that a reasonable sum for damages under this head is RM10,000.00. This amount reflects a balance between the Plaintiffs' legitimate claim for compensation for the distress and anxiety suffered and the need to ensure that such compensation is not disproportionately high considering the nature of the contract and the absence of a diagnosed psychological condition. This sum, therefore, represents a modest but fair compensation for the Plaintiffs' loss of enjoyment and the mental distress endured due to the Defendant's actions. CONCLUSION [379] In view of the Court’s findings above, the Plaintiffs' claim is allowed as follows: a) Damages of USD193,959.19 for all loss, expense and damage suffered by the Plaintiffs as a result of the use of the contaminated fuel supplied by the Defendant; S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal 172 b) Damages of USD24,000.00 for the loss of use of the vessel, “SV Binary Star” from 20.7.2018 to 30.9.2019; c) Damages of RM10,000.00 for assault on feelings, mental distress, and anxiety, discomfort and inconvenience; d) Interest on the judgment sum at the rate of 5% per annum from the date of the Writ until full realisation thereof; and e) Costs of RM100,000.00 to the Plaintiffs subject to allocator fees. 20 November 2022 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) Counsel: For the Plaintiffs: Jeremy M Joseph & Vinodhini Samuel (Messrs. Joseph & Partners) For the Defendant: Ooi Huey Miin & Dianne Hong (Messrs Raja, Darryl & Loh) S/N 6ChfJsvCakKkDCsNj7qDZA **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

JA-83D-1236-02/2022

PENDAKWA RAYA Pendakwa Raya TERTUDUH HIEW KEA CEE

Samada pihak pendakwaan berjaya membuktikan kes prima facie- Samada terdapatnya pemutusan raintaian keterangan barang kes disebabkan perbezaan yang wujud pada berat kasar dadah

20/11/2023

Puan Salini A/P Retanam

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=f8c8cf70-12c2-4677-a093-4d3c0ec09444&Inline=true

Microsoft Word - Alasan Penghakiman Hew (AutoRecovered) 1 DALAM MAHKAMAH MAJISTRET DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA KES JENAYAH.: JA-83D-1236-02/2022 ANTARA PENDAKWA RAYA DAN HIEW KEA CEE DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM RAYUAN JENAYAH NO: JA-41LB-7-09/2023 ANTARA PENDAKWA RAYA …PERAYU DAN HIEW KEA CEE …RESPONDEN _________________________________________________________ ALASAN PENGHAKIMAN _________________________________________________________ 20/11/2023 16:40:43 JA-83D-1236-02/2022 Kand. 27 S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Pengenalan [1] Ini merupakan rayuan yang difailkan oleh pihak pendakwaan terhadap keputusan Mahkamah dalam melepaskan dan membebaskan Orang Kena Tuduh ((selepas ini akan dirujuk sebagai “OKT”) di akhir kes pendakwaan pada 14.9.2023. Pertuduhan terhadap OKT Berikut merupakan pertuduhan terhadap OKT :- [2] Bahawa kamu pada 07/02/2022 jam lebih kurang 9.30 malam bertempat di alamat tempat letak kereta Blok A Tingkat 2 Grand Medini, Jalan Medini Utara 8, 79250 Nusajaya, Johor ,di dalam daerah Johor Bahru, di dalam negeri Johor Darul Takzim telah didapati memiliki dadah jenis Methamphetamine anggaran berat bersih 5.09 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah Seksyen 39A(1) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39A (1) akta yang sama. Pertuduhan Pindaan [3] Pihak pendakwaan telah membuat permohonan secara lisan pada 25.1.2023 untuk meminda perkataan “39 (A) (1) Akta Dadah Berbahaya 1952 pada baris kelima kertas pertuduhan kepada Seksyen 12 (2) Akta Berbahaya 1952. Pihak pembelaan tidak mempunyai bantahan terhadap permohonan tersebut. Mahkamah telah membenarkan pertuduhan pindaan tersebut. Pertuduhan pindaan adalah seperti berikut :- Bahawa kamu pada 07/02/2022 jam lebih kurang 9.30 Malam bertempat Di Alamat Tempat Letak Kereta Blok A Tingkat 2 Grand Medini, Jalan Medini Utara 8, 79250 Nusajaya, Johor ,di dalam daerah Johor Bahru, di dalam Negeri Johor Darul Takzim telah didapati memiliki dadah jenis Methamphetamine anggaran berat Bersih 5.09 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah Seksyen 12 (2) Akta S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 Dadah Berbahaya 1952 dan boleh dihukum di bawah Seksyen 39A (1) akta yang sama. Saksi-saksi pendakwaan [4] Shafrin Bin Samsin- Jurustor -SP1 [5] Noor Hidayah Binti Idris- Ahli Kimia -SP2 [6] Muhammad Hazwan Bin Mohd Amin -SP3 [7] Jerry Julius-Pegawai Penyiasat -SP4 Eksibit [8] Salinan buku pendaftaran barang kes -P1 [9] Beg hijau “Unichamp” bertanda “JJ” -P2 [10] Sampul putih bertanda JJ /FRJ-01046 -P3 [11] Resit Jabatan Kimia -P4 [12] Satu (1) paket timah bertanda “JJ1” -P5 [13] Satu (1) paket plastik bertanda 22-FRJ-01046 -P6 [14] Satu (1) paket plastik bertanda “JJ2” -P7 [15] Tiga belas (13) plastik bertanda “JJ3-JJ15” -P8 (A-M) [16] Laporan kimia bertarikh 7.8.2022 -P9 [17] Laporan Polis Iskandar Puteri 711/22 -P10 [18] Gambar Tempat Kejadian -P11(A-F) [19] Gambar barang rampasan -P12 (A-C) [20] Borang senarai geledah -P13 [21] Borang senarai-menyerah -P14 [22] Plastik PDRM -P15 Penyataan saksi [23] Penyataan saksi bertulis Noor Hidayah Binti Idris (Ahli Kimia) -WSSP1 [24] Penyataan saksi bertulis Jerry Julius (Pegawai Penyiasat) -WSSP2 S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 Fakta kes pendakwaan [25] Pada 7.2.2022 bertindak atas maklumat pada jam lebih kurang 23 hrs, SP3 telah mengetuai sepasukan anggota serbuan telah pergi ke alamat tempat letak kereta Blok A, Tingkat 2, Grand Medini, Jalan Medini Utara, 79250, Nusajaya, Johor. [26] Setelah sampai di tempat kejadian, SP3 telah membuat pemerhatian selama 30 minit dan SP3 bersama anggota serbuan telah nampak OKT memakai “pouch” beg berjenama Unichamp (P2) berjalan kaki di tempat kejadian. Kemudian, SP3 bersama pasukan telah bertindak mendekati OKT dan SP3 ternampak OKT mengeluarkan sesuatu dari P2 dan mencampakkan ke atas lantai. [27] Seterusnya, SP3 bertindak menahan OKT serta mengambil barang yang dicampakkan oleh OKT. Hasil pemeriksaan SP3 terhadap barang tersebut didapati ianya merupakan bungkusan gula-gula Fisherman Friend (P5) yang berisi 14 paket plastic lutisnar (P7-8 (a-m)) yang mana selepas dianalisis oleh SP1 disahkan mengandungi dadah jenis Methamphetamine, berat bersih 5.09 gram. [28] Selanjutnya, SP3 telah menyediakan borang senarai geledah (P13), borang serah-menyerah (P14) serta laporan tangkapan Iskandar Puteri/711/22 (P10) SP3 juga telah menyerahkan OKT dan barang kepada SP4 untuk tindakan selanjutnya. Keputusan di akhir kes pendakwaan [29] Setelah meneliti keseluruhan keterangan saksi- saksi pendakwan dan eksibit- eksibit serta hujahan bertulis pihak-pihak, Mahkamah atas penilaian maksima memutuskan bahawa pihak pendakwaan telah gagal untuk membuktikan satu kes prima facie terhadap OKT. Oleh yang demikian, OKT dilepaskan dan dibebaskan tanpa dipanggil untuk membela diri. Wang jaminan telah dipulangkan. S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 Beban pembuktian di akhir kes pendakwaan [30] Di akhir kes pendakwaan, adalah menjadi tugas ataupun beban statutori kepada pihak pendakwaan untuk membuktikan satu kes prima facie berdasarkan Seksyen 173(f)(i) Kanun Proseduer Jenayah (selepas ini akan dirujuk sebagai (KPJ) dengan membuktikan semua elemen-elemen pertuduhan. Sekiranya, ia jika tidak dibalas atau tidak dapat dijawab oleh OKT maka OKT akan disabitkan sepertimana pertuduhan. Tugas Mahkamah pada peringkat ini adalah dengan membuat penilaian maksima terhadap keseluruhan keterangan saksi-saksi pendakwaan dan eksibit yang dikemukakan dalam membuat dapatan adakah kes prima facie telah berjaya dibuktikan oleh pihak pendakwaan. [31] Prima facie tidak mempunyai maksud statutori. Oxford Companion of Law (m/surat 907) telah memberikan maksud seperti berikut: - “A case which is sufficient to call an answer while prima facie evidence which is sufficient to establish a face in the absence of any evidence to the contrary but is not conclusive” [32] Manakala, Mozley and Whiteley’s Law Dictionary, edisi ke 11 memberikan definIsi seperti berikut: - “A litigating party is said to have a prima facie case when the evidence in his favour is sufficiently strong for his opponent to be called on to answer it. A prima facie case then is one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced by the other side”. [33] Maksud prima facie juga telah diputuskan dalam kes Looi Kow Chai & Anor v PP [2003] 1 CLJ 734 di mana Gopal Sri Ram JCA menyatakan, antara lain: “In our view, subject to the evidence and the prosecution to maximum evaluation to determine if the defence is to be called does not mean that the prosecution has to prove its case beyond reasonable doubt at this intermediate stage.” S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 “It therefore follows that there is only one exercise that a judge sitting alone under s 180 of the CPC has to undertake at the close of the prosecution case. He must subject the prosecution evidence to maximum evaluation and to ask himself the question: if I decide to call upon the accused to enter his defence and he elects to remain silent, am I prepared to convict him on the totality of the evidence contained in the prosecution case? If the answer is in the negative then no prima facie case has been made out and the accused would be entitled to an acquittal”. [34] Prinsip ini digunapakai di dalam kes Balachandran v. PP [2005] 1CLJ 85, di mana Mahkamah Persekutuan Malaysia memutuskan seperti berikut: - “A prima facie case is therefore one that is sufficient for the accused to be called upon to answer. This in turn means that the evidence adduced must be asuch that it can be overthrown only by evidence in rebuttal…The result is that the force of the evidence adduced must be such that, if unrebutted, it is sufficient to induce the Court to believe in the existence of the facts stated in the charge or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts exist or did happen. On the other hand, if a prima facie case has not been made out it means that there is no material evidence which can be believed in the sense as described earlier. In order to make a finding either way the Court must, at the close of the case for the prosecution, undertake a positive evaluation of the credibility and reliability of all the evidence adduced so as to determine whether the elements of the offence have been established.” [35] Berdasarkan kes Low Kow Chai (supra) dan Balachandran (supra) dapat disimpulkan bahawa di akhir kes pendakwaan setelah Mahkamah membuat penilaian maksima terhadap kes pendakwaan dengan melihat kepada keterangan saksi dan dokumen serta menilai segala “rebutting evidence” yang dikemukakan oleh pihak pembelaan, adalah menjadi tugas Mahkamah untuk bertanya jika OKT dipanggil untuk membela diri dan OKT memilih untuk mendiam diri adakah Mahkamah bersedia untuk mensabitkan OKT atas bukti S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 yang dikemukakan? Sekiranya jawapannya adalah “Ya”, maka kes prima facie telah berjaya dibuktikan dan pembelaan harus dipanggil. Sekiranya jawapannya adalah “Tidak”, maka kes prima facie tidak dibuktikan, dan OKT harus dibebaskan” (rujuk kes PP v. Mohd. Radzi bin Abu Bakar [2006] 1 CLJ 457). Elemen-elemen yang perlu dibuktikan oleh pihak pendakwaan bagi pertuduhan pindaan di bawah Seksyen 12 (2) Akta Dadah Berbahaya (selepas ini akan dirujuk sebagai “ADB” 1952). [36] Dadah-dadah tersebut adalah dadah-dadah berbahaya. Dalam membuktikan elemen ini, pihak pendakwaan harus membuktikan rantaian keterangan barang kes tidak terputus dari masa barang kes tersebut dirampas sehingga dianalisis oleh pegawai kimia; dan [37] Dadah tersebut berada dalam milikan, kawalan dan dalam pengetahuan OKT 37.1) Dalam membuktikan milikan dan pengetahuan, pihak pendakwaan boleh bergantung kepada anggapan di bawah Seksyen 37(d) ADB 1952 ataupun dibuktikan melalui milikan terus. Namun, sebelum anggapan milikan digunapakai, pihak pendakwaan perlulah membuktikan bahawa apa-apa objek yang mengandungi dadah tersebut berada dalam kawalan atau jagaan OKT. Elemen pertama: - 14 paket lutsinar yang dicampak oleh OKT itu adalah dadah berbahaya jenis Methamphetamine sebagaimana yang disenaraikan di dalam Jadual Pertama ADB 1952. [38] Pihak pendakwaan perlu membuktikan elemen ini berdasarkan kepada keterangan yang diberikan oleh ahli kimia. Ahli kimia adalah seorang saksi pakar yang bertauliah dan sekiranya keterangan yang diberikan adalah terperinci berkenaan analisis yang dilakukan oleh beliau terhadap rampasan barang kes yang dipercayai dadah, maka keterangan tersebut boleh diterima oleh Mahkamah tanpa sebarang keraguan. Asalkan keterangan itu boleh dipercayai, ahli kimia tidak perlu menunjukkan secara terperinci apa yang telah S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 dilakukan dalam makmal. Otoriti yang sering kali dirujuk oleh Mahkamah berkenaan isu ini adalah PP V Munusamy 1987 1 ML J492. Dalam Kes ini, Mahkamah Agung memutuskan seperti berikut; - (5) In this type of cases where the opinion of the Chemist is confined only to the elementary nature and identity of the substance, the court is entitled to accept the opinion of the expert on its face value, unless it is inherently incredible or the defence calls evidence in rebuttal by another expert to contradict the opinion. So long as some credible evidence is given by the Chemist to support his opinion, there is no necessity for him to go into details of what he did in the laboratory, step by step; [39] Ahli kimia dalam kes ini menyatakan beliau telah menerima barang kes bertanda “JJ” dari SP4 pada 13.2.2022. Beliau telah menjalankan pemeriksaan dan analisis terhadap paket bertanda JJ2 dan JJ3-15. SP3 berpuas hati dengan keputusan ujian-ujian yang telah dijalankan dan mencapai keputusan konklusif bahawa kandungan Methamphetamine yang diperolehi adalah kandungan Methamphetamine seberat bersih 5.09-gram bagi keseluruhan bahan tersebut. Dalam penyataan bertulis beliau juga mengesahkan Methamphetamine adalah disenaraikan dalam Jadual Pertama Aka Dadah Berbahaya 1952. SP1 juga mengeluarkan laporan kimia (P8) untuk mengesahkan perkara ini. [40] Dalam kes ini Mahkamah mendapati ahli kimia telah memberikan keterangan yang menyakinkan Mahkamah dalam dapatan beliau bahawa hasil analisis yang dijalankan oleh beliau menunjukkan barang kes tersebut adalah dadah jenis Methaphetamine dan Methaphetamine disenaraikan di bawah Jadual Pertama ADB 1952. Pihak pembelaan tidak memanggil saksi pakar yang lain untuk mencabar keterangan SP2. Maka, berdasarkan kepada alasan-alasan yang dibincangkan di atas, Mahkamah mendapati elemen ini telah dibuktikan oleh pihak pendakwaan tanpa sebarang keraguan. S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 Elemen kedua: - Dadah berbahaya tersebut adalah dalam milikan, jagaan dan dalam pengetahuan OKT. [41] Nas-nas undang-undang dahuluan telah memutuskan kawalan ataupun jagaan dapat dibuktikan sekiranya seseorang itu tahu kewujudan sesuatu barang itu dan mempunyai kuasa untuk berurusan dengan barang tersebut seakan-akan kepunyaannya dengan menyingkirkan orang lain. Perkara ini telah dijelaskan dalam kes tersohor Chan Pean Leon v PP [1956] MLJ 237 seperti berikut:- “possession” for the purposes of criminal law involves possession itself - which some authorities term ‘custody’ or ‘control’ - and knowledge of the nature of thing possessed. As to possession itself he cited the following definition in Stephen’s Digest (9th Ed p. 304), in which the exclusive element mentioned by Taylor J appears. A moveable thing is said to be in the possession of person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need. [42] Sekiranya pihak pendakwaan dapat membuktikan elemen kawalan dan jagaan dan pengetahuan serta OKT bebas untuk berurusan dengan sesuatu barang dengan menyingkirkan orang lain, maka boleh dikatakan bahawa OKT mempunyai milikan ekslusif (“exclusive possession”) terhadap sesuatu barang tersebut. Perkara ini telah diputuskan dalam kes PP v Denish Madhavan [2009] 2 CLJ 209 di mana Mahkamah Persekutuan memutuskan seperti berikut :- Before proceeding to consider the reasons for the Court of Appeal’s decision, we will say a few words about “exclusive” possession. It is inappropriate to speak of possession of an article in criminal law as exclusive possession. One is either in possession or not in possession, although one could be in possession jointly with another or others. To say that the prosecution of a drug case fails because there has been no proof of exclusive possession is apt to convey the wrong impression that it is only in cases where possession is entirely with one person, - that is, “exclusive” - that a conviction is possible. When the learned trial judge said “The accused sought to negative the proof of exclusive possession S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 ...”, we take it that he meant no more than that the respondent sought to show that he was not in possession of the drugs because he had no knowledge of their existence and that the drugs could have been placed in his bags by some other person or persons. [17] The idea of exclusivity features in the meaning of “possession” in criminal law as one of the elements necessary to constitute possession. As Taylor J said in Leow Nghee Lim v. Reg. [1955] 1 LNS 53: ... It is often said that ‘possession must be exclusive’. This is ambiguous. Possession need not be exclusive to the accused. Two or more persons may be in joint possession of chattels, whether innocent or contraband. The exclusive element of possession means that the possessor or possessors have the power to exclude other persons from enjoyment of the property. Custody likewise may be sole or joint and it has the same element of excluding others. The main distinction between custody and possession is that a custodian has not the power of disposal. The statement that ‘possession must be exclusive’ is often due to confusion of the fact to be proved with the evidence by which it is to be proved. It is essential to keep this distinction clearly in mind, especially when applying presumptions. [18] Thomson J, in Chan Pean Leon v. Public Prosecutor [1956] 1LNS 17, said that “possession” for the purposes of criminal law involves possession itself - which some authorities term “custody” or “control” - and knowledge of the nature of the thing possessed. As to possession itself he cited the following definition in Stephen’s Digest (9th edn, p. 304), in which the exclusive element mentioned by Taylor J appears: A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need. [19] Once the elements needed to constitute possession are established, including the element of exclusive power to deal, then what is established is possession, not exclusive possession. So much for exclusive possession. [43] Mahkamah percaya keterangan SP3 adalah paling relevan dan penting untuk membuktikan elemen ini. SP3 telah menyatakan setelah melakukan pemerhatian selama 30 minit di tempat kejadian, SP3 telah nampak OKT S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 berjalan kaki di kawasan parker sambil memakai “pouch” beg hijau berjenama Unichamp. Semasa SP3 bersama pasukan telah bertindak mendekati OKT, SP3 telah nampak OKT mengeluarkan sesuatu dari “pouch” beg dengan menggunakan tangan kanan dan memcampakkannya ke lantai. Seterusnya, dengan disaksikan oleh OKT, SP3 telah mengambil barang yang telah dicampakkan dan setelah membuat pemeriksaan mendapati ianya adalah bungkusan gula-gula jenama fisherman friend di dalamnya mengandungi 14 paket plastic lutsinar yang disyaki dadah jenis syahbu. [44] Berdasarkan kepada keterangan SP3, Mahkamah mendapati pihak pendakwaan telah berjaya membuktikan elemen jagaan dan kawalan berdasarkan faktor-faktor berikut :- 44.1 Dadah yang disyaki syahbu dijumpai dengan proksmiti yang dekat dengan OKT di mana barang kes tersebut dijumpai di atas lantai berdekatan dengan tempat OKT berdiri sepertimana yang dapat dilihat pada P11 (F). Berdasarkan kepada keterangan SP3 P11 (F) adalah tempat di mana OKT ditangkap dan barang kes dijumpai. 44.2 SP3 dengan jelasnya menyatakan beliau nampak OKT mengeluarkan sesuatu dari “pouch” beg yang dibawanya dan mencampakkannya ke atas lantai. Semakan terhadap barang kes yang dicampakkan ke atas lantai menunjukkan dadah yang disyaki syahbu. Tindakan OKT yang memakai “pouch” beg tersebut menunjukkan beliau mempunyai kuasa untuk berurusan dengan dadah tersebut dengan mengecualikan orang lain. [45] Dapatan Mahkamah ini adalah selaras dengan keputusan Mahkamah dalam kes-kes berikut yang memutuskan seperti berikut. 45.1 Dalam kes Pendakwa Raya lwn Hamsani bin Abdul Hamid dan satu lagi [2017] MLJU 1070, Mahkamah Tinggi memutuskan seperti berikut: - [34] Sebahagian dadah-dadah itu dijumpai berada berdekatan dengan kedua-dua Tertuduh iaitu di ruangan S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 tempat letak barang di hadapan gear dan di bawah tempat tempat duduk penumpang hadapan. Lokasi dadah yang dijumpai di mana ianya sangat berdekatan dengan kedudukan kedua-dua Tertuduh dan tidak tersorok membuktikan pada masa material dadah-dadah itu adalah dalam kawalan atau jagaan mereka. 45.2 Rujukan juga dibuat terhadap kes PP V Goh Eng Tee v & Ors (2015) MLJU 23014, Mahkamah Tinggi memutuskan seperti berikut :- [14] Saya juga dapati kesemua OKT berada dalam rumah tersebut dan berdekatan dengan dadah dan bahan racun berkenaan. Kedekatan kesemua OKT dengan dadah dan bahan racun tersebut adalah relevan untuk membuktikan semua OKT mempunyai milikan sebenar, walaupun tidak secara fizikal, ke atas dadah dan bahan racun tersebut. Seperti mana ditemui di atas, kesemua OKT berada dalam rumah tersebut semasa serbuan dibuat dan dadah dan bahan racun dijumpai. 45.3 Perkara yang sama juga diputuskan dalam kes Pendakwa Raya v Mohd Fazil Zainul Abidin (2017) MLJU 1942, di mana Mahkamah Tinggi memutuskan seperti berikut :- [41] Di dalam kes semasa di hadapan Mahkamah ini, pihak pendakwaan bergantung kepada keterangan SP3 dan SP4 untuk membuktikan bahawa OKT mempunyai kawalan dan jagaan serta pengetahuan ke atas dadah dadah yang dikatakan ditemui di atas meja di dalam bengkel itu. Fakta yang disandarkan oleh pihak pendakwaan ialah OKT dilihat selama 10 minit semasa pemerhatian dibuat duduk di kerusi di hadapan meja itu secara S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 bersendirian. Dadah-dadah itu tidak tersembunyi dan terdedah di atas meja itu. Dengan kedudukan OKT yang amat dekat dengan dadah-dadah di atas meja di dalam bengkel itu (dikatakan jarak kerusi dengan meja ialah sekaki) dengan lampu yang terbuka element kawalan dan jagaan dikatakan telah terbukti. [46] Pihak pembelaan berhujah bahawa pihak pendakwaan gagal membuktikan elemen ini memandangkan tiada sebarang keterangan positif dari pihak pendakwaan yang menyatakan OKT seorang sahaja berada di tempat kejadian. Mahkamah mendapati hujahan pihak pembelaan ini tersasar memandangkan SP3 dengan jelasnya menyatakan beliau nampak OKT mengeluarkan sesuatu dari “pouch” beg yang dipegangnya dan membuangnya pada lantai. Justeru tidak wujud sebarang persoalan samaada wujudnya individu lain di tempat kejadian kerana ianya tidak relevan sama sekali untuk kes pendakwaan. Mahkamah mendapati SP3 adalah seorang saksi mata yang telah mengesahkan perkara ini. Keterangan lisan yang diberikan oleh SP3 adalah memadai dan ketiadaan keterangan positif yang lain tidak menjejaskan kes pendakwaan. Dalam hal ini, rujukan dibuat terhadap kes Micheal Arinzeh (Nigerian) v Public Prosecutor (2019) MLJU 1551 Mahkamah Rayuan memutuskan seperti berikut :- 22. Mengenai pembuktian DNA profil dan cap jari, yang dihujahkan oleh peguambela terpelajar telah tidak menyokong kes pendakwaan, saya berpendapat bahawa keterangan-keterangan ini tidak dapat mengatasi keterangan mata oleh SP7 yang melihat OKT mencampakkan beg berisi dadah tersebut ke bawah …... [47] Bagi membuktikan isu milikan ini juga, pihak pendakwaan harus juga membuktikan elemen pengetahuan terhadap dadah yang ditemui. Jelasnya, tanpa pengetahuan, elemen milikan tidak dapat dibuktikan. Perkara ini telah diterangkan dalam kes Mahkamah Persekutuan Ibrahim Mohamad v PP [2011] 4 CLJ 113 seperti berikut: S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 “The law is well settled that having only custody or control over the said drugs is insufficient to establish “possession”. The physical act of control or custody must be accompanied with evidence that the accused had knowledge of the said drugs. In the absence of any statutory presumptions, knowledge has to be proved either by direct evidence or circumstantial evidence. Mere knowledge alone without exclusivity of either physical custody or control or both is insufficient in law to constitute possession let alone trafficking.” [48] Terdapat begitu banyak nas undang-undang yang memutuskan bahawa tingkah laku dan reaksi OKT semasa pegawai polis menghampiri OKT akan menjadi fakta yang relevan untuk membuat inferen bahawa OKT mempunyai pengetahuan terhadap dadah yang dijumpai. Tingkah laku dan reaksi OKT sahaja bukan merupakan satu-satunya faktor dalam membuat inferen pengetahuan berkenaan dadah. Penilaian secara menyeluruh dan keadaan sekeliling juga merupakan faktor relevan. Perkara ini diputukskan dalam kes Ibrahim Mohamad & Anor v. PP (supra) Dalam kes ini, Mahkamah Persekutuan memutuskan seperti berikut: - "[17] Whilst the conduct of the accused fleeing the scene may be a relevant factor to be considered, such a conduct however must be weighed against the circumstances of the case. This is because even an innocent man may feel panicky and try to evade arrest when wrongly suspected of committing a crime. It is a common instinct of self- preservation. [20] Based on the above s. 8(2) of the Evidence Act 1950, there are two types of conduct which is relevant, namely prior and subsequent conduct. Evidence of conduct is an equivocal act and is capable of more than one interpretation. Accordingly, evidence of conduct must not be referred to in isolation. Instead, conduct must be considered with other evidence or circumstances." [49] Berdasarkan kepada keterangan SP3, beliau menyatakan setelah menyedari kehadiran SP3 dan pasukannya OKT telah mengeluarkan sesuatu dari “pouch” beg dan membuangnya ke atas lantai. Jadi persoalan yang perlu ditanya oleh Mahkamah kenapakah OKT bertindak sedemikian sekiranya tiada sebarang S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 perbuatan salah di tempat kejadian. Mahkamah mendapati reaksi atau tingkah laku OKT ini adalah suatu yang relevan menurut Seksyen 8 Akta Keterangan 1950. Keterangan dari SP3 ini membolehkan Mahkamah membuat inferen bahawa OKT mempunyai pengetahun terhadap P5-P8. Beban terletak pada OKT untuk menjelaskan kelakuannya menurut Seksyen 9 Akta Keterangan 1950. Penjelasan sedemikian perlu diberikan dengan perincian dan dalam keadaan yang munasabah. Dalam hal ini Mahkamah merujuk kepada kes Mahkamah Persekutuan PP v Parlan Dadeh [2008] 6 MLJ 19 di mana Mahkamah Persekutuan memutuskan seperti berikut: - “Conduct like the flight of an accused is a more positive act and is easily established. On the other hand, conduct like the accused looking stunned, nervous, scared or frightened is very often a matter of perception and more detailed evidence may be required. Once admitted the court cannot resort to any other explanation for the conduct or draw inferences on its own accord to render it inadmissible. The onus is on the accused to explain his conduct pursuant to s. 9. Such explanation must not be in their barest possible form, but with a reasonable fullness of detail and circumstance (see R v. Stephenson [1904] 68 JP 524). The onus may be discharged even in the course of the case for the prosecution, for example, by way of cross- examination of relevant witnesses. If not so done it can be discharged only at the defence stage...” [50] Mahkamah dalam kes tersebut juga memutuskan bahawa: - “[38] In this case the reaction of the appellant in looking stunned or shocked upon being approached by the police is clearly admissible under s. 8 since it has a direct bearing on the fact in issue as the drugs found were tucked away in the front of the jeans worn by him. The explanation for his reaction must therefore be offered by he himself as required by s. 9. The court cannot, on its own, offer an explanation for his reaction. However, in his defence the appellant did not offer any explanation at all for his reaction upon being approached by the police. It can therefore be validly used as evidence against him. S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 The inference to be drawn from the evidence of conduct of the appellant against the background of the other evidence is that he knew what he was carrying (see DPP v. Brooks [1974] 2 All ER 840) ...” [51] Keputusan dalam kes ini telah dirujuk dalam kes Micheal Arinzeh (supra) di mana Mahkamah Rayuan memutuskan seperti berikut :- 23. Perbuatan OKT mencampakkan dadah tersebut menunjukkan pengetahuan beliau terhadap dadah tersebut. Satu tindakan “desperate” untuk melepaskan dirinya. Saya merujuk kepada kes Parlan Dadeh vs PP [2009] 1 CLJ 717. [52] Rujukan juga dibuat terhadap kes Pendakwa Raya lwn Mohamad Khairul bin Mohamad [2022] MLJU 2140, Mahkamah Tinggi memtuskan seperti berikut :- [25] Keseluruhan barang kes yang ditemui adalah dari rupa bentuk yang sama iaitu botol-botol lutsinar bertudung kuning yang mengandungi dadah jenis yang sama. Hanya OKT sahaja berada di dalam bilik air tersebut dan hanya satu inferens sahaja yang boleh dibuat iaitu ia diambil dari dalam beg P15 dan dicampakkan ke atas bumbung serta dibuang melalui corong air. [26] Oleh itu, Mahkamah tidak teragak-agak untuk menyatakan bahawa kesemua barang kes tersebut adalah berada di dalam jagaan serta kawalan OKT sebelum serbuan dilakukan dan apabila menyedari serbuan tersebut, OKT telah cuba bertindak untuk melupuskan dadah tersebut dengan mencampakkan sebahagiannya ke luar melalui lubang serta membuangnya melalui corong air. [27] Keterangan-keterangan ini jelas menunjukkan elemen jagaan dan kawalan OKT ke atas dadah tersebut secara afirmatif. Analisis Mahkamah tidak terhenti dengan dapatan ini kerana Mahkamah turut menilai bahawa tindakan OKT melarikan diri apabila SP3 memperkenalkan diri sebagai pihak polis serta tindakan OKT bersembunyi di dalam bilik air serta mencampakkan sebahagian dari S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 dadah melalui lubang di bilik air serta cuba membuangnya melalui lubang air di bilik air. Pada pandangan Mahkamah ia adalah merupakan perbuatan-perbuatan yang relevan bagi membuktikan secara inferens bahawa OKT mempunyai pengetahuan bahawa barang-barang kes tersebut adalah dadah berbahaya (rujuk; Parlan Dadeh v PP [2009] 1 CLJ 717, Samundee Devan a/l Muthu Kerishnan v PP [2010] 2 MLJ 607 dan Badrulsham bin Baharom [1988] 2 MLJ). [28] Mahkamah turut berpuashati bahawa OKT turut mempunyai kuasa untuk mengendalikan dadah-dadah berbahaya tersebut dengan mengecualikan campurtangan orang lain kerana pada setiap masa yang material, OKT dilihat menggalas P15 tersebut dan apabila ditemui OKT sedang memeluk P15 tersebut. OKT juga dilihat telah melemparkan dadah-dadah tersebut melalui lubang serta melalui lubang air keluar di bilik air di mana OKT ditemui. [53] Mahkamah juga merujuk kepada kes Pendakwa Raya v Chow Kok Keong (1994) MLJU 295, di mana Mahkamah Tinggi memutuskan seperti berikut :- Isu seterusnya ialah samada Ah Seng telah memberikan P.6 kepada OKT. Setelah meneliti keterangan OKT saya dapati bahawa tidaklah munasabah Ah Seng[1994] MLJU 295 at 16 memberikan P.6 kepada OKT dan saya berpendapat ini adalah satu rekaan yang dibuat oleh OKT untuk melepaskan diri dari tuduhan yang dihadapinya. Saya telah melihat gerak-geri OKT semasa memberi keterangan dan saya puashati OKT memang tahu gandingan P.6 ialah dadah. Apabila dia ditahan dia mencampakkan P.6 dan cuba lari. Kenapa dia lepaskan P.6 dan cuba lari apabila ditahan oleh SP.6 jika dia sebenarnya tidak tahu apa kandungan P.6 dan lebih lebih lagi dia mengatakan P.6 mengandungi barang makanan yang diberikan oleh Ah Seng. Ini bukanlah perbuatan seorang yang benar benar tidak tahu apa isi kandungan P.6 tetapi adalah sebaliknya oleh sebab dia tahu kandungan P.6 maka dia melepaskan P.6 dari tangannya. S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 [54] Berbalik kepada kes dihadapan saya, Mahkamah mendapati tindakan OKT yang telah mencampakkan beg “pouch” tersebut setelah menyedari kehadiran pasukan polis menunjukkan OKT mempunyai pengetahuan terhadap isi kandungan “pouch” beg tersebut. Disebabkan itu beliau mencampakkan beg tersebut unutk melepaskan dirinya daripada ditangkap oleh pihak polis. [55] Berdasarkan kepada alasan- alasan yang dinyatakan di atas, Mahkamah mendapati pihak pendakwaan telah membuktikan elemen ini tanpa sebarang keraguan. Raintaian keterangan barang kes [56] Pihak pendakwaan mempunyai tanggungjawab untuk mengemukakan keterangan yang kukuh bagi menunjukkan rantaian keterangan barang kes tidak terputus dari masa barang kes dirampas sehingga diserahkan kepada ahlia kimia untuk dianalisa. Perkara yang boleh menyebabkan rantaian keterangan barang kes terputus adalah dalam keadaan di mana kemungkinan wujudnya kacau ganggu terhadap barang kes dan perkara tersebut menimbulkan keraguan terhadap identiti barang kes. [57] Keterangan dari saksi-saksi pendakwaan harus menunjukkan pengendalian barang kes setelah dirampas dari OKT adalah sempurna, tidak dikacau ganggu sehingga diserahkan kepada ahli kimia untuk dianalisa. Dalam erti kata lain, keterangan dari saksi-saksi pendakwaan harus menyakinkan Mahkamah bahawa barang kes yang dirampas dari OKT adalah sama dan tidak bercampur aduk dengan mana-mana barang kes lain. Sekiranya berlaku kelompangan dalam perkara ini boleh dikatakan wujudnya keraguan terhadap identiti barang kes serta kes prima facie tidak dapat dibuktikan oleh pihak pendakwaan. [58] Pihak pembelaan dalam kes ini berhujah bahawa rantaian keterangan barang kes telah terputus kerana wujdunya perbezaan terhadap anggaran berat kasar yang gagal dijelaskan oleh saksi-saksi pendakwaan. Pihak pembelaan berhujah seperti berikut :- 58.1 Dokumen yang dikemukakan oleh pihak pendakwaan mengandungi maklumat-maklumat tentang barang kes tidak konsisten dan bercanggah antara satu sama lain. Laporan polis S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 menyatakan anggaran berat kasar dadah yang dirampas (H2- H15) adalah 12.04. SP3 bersetuju bahawa anggaran berat kasar diperolehi selepas menimbang semula. Namun, sekiranya pengiraan dibuat semula, ianya akan terjumlah kepada 12.78 gram. Perkara ini disahkan sendiri oleh SP3 setelah membuat pengiraan semula di Mahkamah. Ini bermakna berlaku penambahan sebanyak 0.74 gram. Tiada sebarang penjelasan berkenaan penambahan ini serta tiada sebarang pindaan atau pembetulan dibuat. 58.2 Berkenaan P13 (borang senarai geledah) dan P14 (borang serah-menyerah), SP3 bersetuju bahawa maklumat-maklumat yang tertera pada senarai geledah ini adalah maklumat yang merujuk kepada identiti barang-barang kes yang dirampas. Namun, semakan mendapati terdapat beberapa maklumat yang tidak konsisten. Perbezaan wujud di P13 di mana jumlah berat kasar bagi H3 dinyatakan 0.74 dan H3 yang sama pada P14 dinyatakan 0.76. Tidak ada pindaan, laporan pembetulan mahupun penjelasan yang ditawarkan oleh SP3 berkaitan perkara ini. 58.3 Keterangan lisan SP3 berhubung dengan anggaran berat kasar pada P10 menyatakan 12.04-gram adalah anggaran berat kasar bagi H2-H15 di mana ianya bercanggah dengan jumlah sebenar apabila pengiraan dibuat semula terhadap H2 sehingga H15. Perkara ini disahkan oleh SP4 ketika melakukan pengiraan semula di Mahkamah terbuka. Keterangan lisan SP3 bercanggah dengan P13 dan P14 tatkala terdapat maklumat yang tidak sama seperti mana yang dinyatakan di atas sungguhpun SP3 ini bersetuju bahawa maklumat yang dizahirkan pada borang adalah sama. Perkara ini mewujudkan keraguan bahawa barang yang dirampas dari OKT ini sememangnya barang yang menjadi subjek kepada petuduhan terhadap OKT. S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 58.4 Pihak pembelaan tidak nafikan bahawa berat-bert tersebut masih dalam status “anggaran berat kasar”. Namun, anggaran berat kasar itu berubah-ubah dari satu dokumen ke satu satu dokumen yang lain dan juga dari satu saksi ke satu saksi yang lain. Pihak pembelaan berhujah perkara ini berlaku kerana barang kes telah dikacau ganggu. Kesan daripada kacau ganggu itu menyebabkan anggaran berat barang kes ini (sungguhpun masih dalam anggaran berat kasar) telah berubah-ubah dari satu masa ke satu masa. 58.5 Perkara-perkara yang dinyatakan di atas menimbulkan keraguan yang material pada identiti barang kes. Keraguan material yang timbul adalah: - 1) Barang kes dadah mana yang ditimbang sehingga mendapat anggaran berat kasar 12.04-gram itu? 2) Barang kes tandaan H3 mana yang ditimbang sehingga mendapat anggaran berat kasar 0.74- gram seperti pada borang senarai geledah itu? 3) Bagaimanakah berat kasar ini boleh bertambah sehingga 0.74 gram? 4) Kenapakah tiba-tiba pengiraan SP4 pada anggaran berat kasar bertanda H2 sehingga H15 ini yang dilakukan di Mahkamah ini boleh berbeza dengan pengiraan yang dibuat oleh SP3 sedangkan SP4 menyatakan bahawa anggaran berat pada awalnya diperoleh adalah sama dengan SP3 ? [59] Pihak pendakwaan pula berhujah bahawa perbezaan berat kasar yang dibangkitkan oleh pihak pembelaan adalah tidak memberi kesan kepada rantaian keterangan barang kes memandangkan SP3 dan SP4 cam kesemua barang kes berdasarkan tandaan. SP4 juga selanjutnya telah menjelaskan perbezaan berat kasar adalah tidak material kerana ketika SP4 menerima barang kes, barang kes masih lagi berstatus anggaran berat kasar. S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 [60] Dapatan Mahkamah setelah membuat pertimbangan secara maksima terhadap keterangan yang dikemukakan oleh pihak pendakwaan, Mahkamah mendapati pihak pendakwaan telah gagal untuk membutkikan kes pada tahap prima facie kerana rantaian keterangan barang kes telah terputus berdasarkan alasan-alasan berikut: - 60.1 Terdapat perbezaan terhadap berat kasar pada barang kes yang dirampas dari OKT. Perbezaan terhadap berat kasar ini dapat dilihat pada P10 (laporan polis), P13 (borang geledah) dan borang serah-menyerah (P14). Pada P10 berat kasar adalah 12.04. Semasa pemeriksaan utama, SP3 mengesahkan bahawa beliau telah membuat semakan semula terhadap berat kasar pada setiap barang rampasan. Semasa pemeriksaan balas juga SP3 telah bersetuju dengan cadangan peguam yang menyatakan anggaran berat diperolehi setelah menimbang semula paket plastic (H2-H15) yang disyaki mengandungi syahbu. SP3 juga turut bersetuju dengan cadangan peguam bahawa maklumat- maklmut yang tertera pada P13 adalah merujuk kepada identiti barang kes dan segala maklumat yang dizahirkan pada P13 adalah tepat. Berikut merupakan keterangan SP3 berkenaan isu ini di peringkat pemeriksaan utama: - S: Apa dokumen yang diserahkan? J: Search list S: Siapa yang sediakan? J: Disediakan oleh saya dan ditulis oleh anggota saya, setelah anggota tulis saya akan menyemak semula S: Insp beritahu anggota tulis, Insp buat semakan semula maksudnya apa? J: Saya lihat setiap barang rampasan, berserta berat 60.2 Berikut merupakan keterangan SP3 semasa pemeriksaan balas:- S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 S: Saya pohon saksi dirujuk kepada P13, senarai geledah dibuat oleh angota beutl? J: Betul S: Kamu kata kamu menyemak maklumat yang ditulis oleh anggota betul? J: Betul S: Maklumat-maklumat yang tertera adalah maklumat yang merujuk kepada identity barang ke yang dirampas betul? J: Betul S: Segala maklumat dizahirkan adalah maklumat tepat rujuk kepada identity barang-barang rampasan? J: Betul S: Selepas itu, barang-barang itu akan diserahkan kepada IO, betul? J: Betul S: Bila- barang-barang diserahkan barang-barang akan bertukar tangan? J: Betul S: Penting untik kita pastikan tiada sebarang kacau ganggu pada barang kes bagi rantaian keterangan barang semasa barang kes bertukar kepada IO betul? J: Betul S: Dalam kes ini kamu ada sediakan borang serah- menyerah betul? S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 J: Betul S: Apa identity barang-barang yang kamu senaraikan dalam borang, adalah sepertimana yang dizahirkan betul? J: Betul 60.3 SP3 mengesahkan bahawa maklumat-maklumat yang disediakan dalam borang geledah telah disemak dan kiraan semula telah dilakukan sebelum diserahkan kepada SP4. Namun, apabila SP4 membuat kiraan semula di Mahkamah ianya menunjukkan 12.78. Berikut merupakan keterangan yang diberikan oleh SP4 semasa pemeriksaan balas: - S: Pohon rujuk perenggan 7 dalam PS, keterangan adalah betul? J: Betul S: Jadi maksud di sini sarjan telah menimbang barang kes dadah, untuk memastikan ia sama seperti sama yang dilaporkan oleh pegawai serbuan, betul? J: Betul S: Selepas semakan dibuat, sarjan dapati berat yang sarjan dapat adalah sama? J: Setuju S: Sekiranya semasa semakan, sarjan dapati terdapat berat yang tidak sama, maka pegawai serbuan perlu membuat laporan pembetulan setuju? J: Setuju S: Anggaran berat kasar adalah 12.04 gram setuju? J: Betul S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 S: Anggaran berat kasar diperoleh, selepas penimbangan dibuat pada semua paket plastik yang ditanda H2-H15, betul? J: Betul S: Soalan saya betul ke Sarjan semak laporan polis yang dibuat oleh pegawai serbuan? J: Betul semasa serah terima barang kes S: Betul ke sarjan membuat penimbangan bagi memastikan berat adalah sama seperti di P10 ? J: Betul S: Betul ke jumlah berat kasar plasitk H2-15 sekiranya dicampur terjumlah kepada 12.04 gram,? J: Betul S: Kalau saya kata, jumah ini bukan 12.04 tetapi 12.78 sarjan setuju? J: Bagi saya saya timbang sama seperti laporan pengadu S: Kalau saya katakan jumlah bukan 12.08 tetapi 12.78 sarjan setuju? J: Tak setuju S: Memandangkan saksi tidak berstuju, bolehkan saya memohon saksi untuk mengira untuk mengelakkan sebarang spekulasi? Mah: Dibenarkan, saksi sedang membuat pengiraan S: Dapat berapa? S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 J: 12.78 S: Adakah satu 12.04 dan 12.78 berat yang sama? J: Berlainan S: Adakah sebarang pembetulan pada laporan polis? J: Setakat ini tiada S: Adakah report pembetulan dibuat untuk jelaskan perbezaan jumlah berat ini? J: Tiada 60.4 Pihak pendakwaan telah melakukan pemeriksaan semula terhadap isu ini, berikut merupakan jawapan yang diberikan oleh SP4:- S: Peguam rujuk H3, pada borang geledah dan tandan H3 pada borang serah-menyerah yang mana berat 0.74 dan 0.76 tidak sama dan adalah tidak sama, jelaskan? J: Berat yang berbeza, dari segi kiraan total keseluruhan sepertimana laporan tangkapan adalah 12.04 apabila kiraan semula sebentar tadi adalah 12.78. Memang ada perbezaan dari jumlah berat, tetapi dari segi secara keseluruhan barang kes kerana anggaran berat kasar yang telah dinyatakan oleh pengadu walaupun ada perbezaan pengadu menyatakan ada anggaran berat S: Ada tak pindaan yang dibuat oleh pegawaI serbuan, sila jelaskan? J: Saya tidak buat pindaan dan juga pegawai tangkapan, saya beranggapan dan serah- menyerah dan senarai barang kes dadah dadah tepat dan kiraan ada dilakukakan sepertimana yang dinyatakan dalam penyata. Kesilapan semasa serah-menyerah pengadu sendiri tiada maklumkan, S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 tetapi yang pasti jumlah berat kasar adalah anggaran 60.5 Sekiranya dilihat kepada keterangan yang diberikan oleh SP4 beliau mengesahkan bahawa kiraan semula telah dibuat semasa menerima barang kes dari SP3 dan ianya menunjukkan berat kasar 12.04 gram. Namun, apabila SP4 membuat kiraan semula terhadap H2-H15 di Mahkamah ianya menunjukkan 12.78 dan beliau sendiri mengakui terdapat perbezaan. Persoalan yang timbul adalah adakah kedua-dua saksi ini bercakap benar di Mahkamah memandangkan keterangan lisan mereka di Mahkamah menunjukkan sebaliknya. Perkara ini sememangnya menimbulkan keraguan terhadap krebiliti SP3 dan SP4. Dalam hal ini, Mahkamah merujuk kepada kes PP v Tan Chin Tart (2021) MLJU 773, di mana Mahkamah Tinggi memutuskan seperti berikut :- [41]…Berkenaan keterangan saksi polis Mahkamah ini merujuk kepada keputusan Mahkamah di dalam kes PP v Nurminah Matarun [2010] 1 LNS 223 di mana YA Hakim Raham Sebli (ketika itu) telah menyatakan sesorang saksi yang telah mengangkat sumpah untuk memberi keterangan yang benar khususnya saksi polis tidak boleh menyimpang dari sumpah itu. 60.6 Semasa Puan Timbalan Pendakwa Raya menjalankan pemeriksaan semula terhadap isu ini, tiada sebarang penjelasan diberikan oleh SP4 berkenaan perbezaan yang wujud ini. Perkara ini menimbulkan tanda tanya kenapakah wujudnya perbezaan ini memandangkan SP3 dan SP4 telah mengesahkan telah melakukan kiraan semula. Tanda tanya ini sememangnya menjurus kepada keraguan-keraguan material terhadap identiti barang kes seperti berikut: - 1) Adakah SP3 melakukan timbangan terhadap barang kes yang dirampas dari OKT ataupun melibatkan tangkapan lain? S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 2) Barang kes manakah ditimbang sehingga mendapat anggaran berat kasar 12.04 sedangkan pengiraan semula menunjukkan 12.78? 3) Kenapakah wujudnya perbezaan anggaran berat kasar terhadap H3 pada P13 (0.74) dan P14 (0.76)? 4) Kenapakah pengiraan SP4 terhadap H2-H15 yang dilakukan di Mahkamah ini boleh berbeza dengan pengiraan yang dibuat oleh SP3 sedangkan SP4 menyatakan anggaran berat kasar pada awalnya diperoleh sama dengan SP3? 60.7 Kesemua tanda tanya ini gagal djielaskan oleh saksi- saksi pendakwaan. Terdapat nas-nas telah memutuskan bahawa sekiranya terdapat percanggahan material terhadap berat kasar dadah berkenaan, maka pihak pendakwaan wajib menawarkan penjelasan terhadap percanggahan tersebut. Jika dibiarkan tanpa dijelaskan ianya akan menimbulkan keraguan terhadap identiti barang kes dadah tersebut. Dalam hal ini, Mahkamah ini merujuk kepada kes Zaifull Muhammad v PP & Another Appeal 2013 2 MLJ 348, di mana Mahkamah Persekutuan dalam kes ini memutuskan seperti berikut :- [32] We are of the view that in present case, there exist material discrepancies in the gross weight of the cannabis mentioned in the original charge compared to the evidence of PW2. Other than that, there also exist material discrepancy in the number of "ketulan" mentioned in the original charge compared to the number of "ketulan" as testified by PW4, PW8 and PW2. The gross weight and the number of "ketulan" of the drug exhibit certainly go to the identity of the drug exhibit. How else can the identity of the drug exhibit be established. Therefore, any serious discrepancies on the gross weight and the number of "ketulan", unless satisfactorily explained, in our view will go the question of identity of the drug exhibit. [33] In the present case, there are two material discrepancies that is as to the number of "ketulan" and as to the gross weight of the cannabis. Both these S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 discrepancies were never explained by the prosecution, save to say that the charged referred to by the learned counsel was the original charge, and the charge was later amended to read as trafficking in 799.4 grammes of cannabis. It was further contended by the prosecution that since the amended charge is based on the net weight, therefore, any discrepancy in the gross weight is immaterial. [34] The prosecution further argued that based on the evidence before the court, there is no break in the chain of the evidence with regard to the drug exhibit. The prosecution submitted that all the relevant witnesses called by the prosecution had positively identified the drug exhibit based on the contemporaneous markings made by the witnesses. On that premise, the prosecution contended that the discrepancies do not create any doubt in the identity of the drug exhibit. [35] With respect, we could not agree with the prosecution on this issue. We are of the view that, in the circumstance of this case, it is incumbent on the prosecution to offer some explanation for the discrepancies. With the discrepancies left unexplained, this created a reasonable doubt as to the identity of the drug exhibit. In the circumstance, the defence should not have been called at the close of the prosecution case. 60.8 Rujukan juga dibuat terhadap kes Pendakwa raya v Bazleh Saeid Saleh dan satu lagi (2014) 5 MLJ 816, di mana Mahkamah Rayuan memutuskan seperti berikut:- (2) Walaupun pihak pendakwaan telah mengetahui isu identiti ini telah ditimbulkan dan lagi pula kes Zaifull telah memutuskan tentang pentingnya bagi pihak pendakwaan untuk memberi penjelasan bagi percanggahan tersebut, namun malangnya tiada sebarang keterangan yang diberikan oleh saksi-saksi pendakwaan bagi menjelaskan isu penting ini. Wujud keraguan munasabah dalam kes ini di mana barang- barang kes yang dirampas telah sebenarnya telah diusik dan oleh itu, rantaian keterangan dalam kes pendakwaan telah terputus akibat isu ini dan wujudnya keraguan munasabah sama ada barang- barang kes yang dihantar untuk dianalisis adalah S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 barang kes yang sama yang telah dirampas daripada kawalan kedua-dua responden (lihat perenggan 14) 60.9 Rujukan juga dibuat terhadap kes Nagathevan Manoharan v Pendakwa raya (2023) MLJU 420, di mana Mahkamah Tinggi memutuskan seperti berikut :- [46] Mahkamah ini mendapati bahawa terdapat keraguan terhadap barang kes dadah tersebut dari segi kebarangkalian ia telah dikacau ganggu berdasarkan perbezaan berat kasar yang ketara dan signifikan iaitu perbezaan tambahan sejumlah 279.82- gram atau 25%. Mahkamah ini berpandangan bahawa perbezaan berat kasar dadah tersebut dengan pertambahan berat hampir 25% adalah sesuatu yang serius dan memerlukan penjelasan. Mahkamah ini juga tidak mendapati apa-apa keterangan lain bagi menjelaskan perbezaan berat kasar tersebut walaupun ia hanya merupakan berat anggaran kasar yang dibuat oleh SP4 dan SP7. [47] Mahkamah ini telah berpandukan kepada kes Tan Yew Choy v. PP [2009] 4 CLJ 245 di mana antara lain ekstrak daripada penghakiman Mahkamah Persekutuan tersebut seperti berikut: “We shall now deal with the first ground of appeal. We find there is merit in the arguments advanced by learned counsel for the appellant. We agree with the contention of the appellant that there is a serious doubt as to the weight of the cannabis, thus affecting the identity of the cannabis…. Both SP6 dan SP7 used the same weighing scale (exh. P17) seized from the appellant’s apartment. With regard to the discrepancy in the weight, the only explanation that PW7 gave was inter alia as follows: Perbezaan dalam berat kasar mungkin kerana alat timbang yang tidak ikut kalibrasinya. (See p. 104 of the appeal record) [11] We are of the view that the above purported explanation given by PW7 cannot be accepted. It is merely speculative for PW7 to say that the weighing scale might S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 not be accurate. It could very well be that the weighing scale was accurate and that probability cannot be brushed aside. The fact that both PW7 and PW6 used the same weighing scale showed that both the police officers had confidence in the accuracy of the said weighing scale…” (Penekanan ditambah) [48] Dalam kes Sia Pang Liong v. PP [2013] 2 MLJ 490, Raus Sharif FCJ dalam penghakiman Mahkamah Persekutuan telah memutuskan seperti berikut: “[11] Thus, the identity of the drug exhibits was being challenged by the appellant. Once there is such a challenge, the prosecution bears the burden of proving beyond reasonable doubt that there are no gaps in the chain of evidence. It is the burden of the prosecution to adduce evidence that the drug exhibits that were recovered from the appellant and that were sent to the chemist for analysis were the same drug exhibits that the appellant was charged with... [17] ... This has raised a doubt as to the identity of the drug exhibits. Therefore, we are giving the benefit of the doubt to the appellant.” (Penekanan ditambah) [49] Oleh yang demikian, Mahkamah ini merumuskan terdapat keraguan yang ketara dan munasabah ke atas rantaian keterangan barang kes dadah tersebut sama ada dadah yang dijumpai dan dirampas oleh SP4 tersebut adalah merupakan dadah dengan jumlah kuantiti yang sama yang telah dihantar kepada Ahli Kimia untuk analisis yang didapati merupakan dadah berbahaya jenis Heroin dan Monoacetylmorphines. 60.10 Rujukan terhadap kes-kes di atas membincangkan kepentingan saksi-saksi pendakwaan dalam memberikan penjelasan yang memuaskan terhadap perbezaan yang wujud pada berat kasar dadah yang dirampas. Namun, dalam kes di hadapan Mahkamah S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 ini tiada secebis keterangan yang memuaskan berkenaan perkara ini. Hal ini sememangnya meninggalkan jurang yang besar dalam kes pendakwaan. 60.11 Mahkamah juga mendapati rantaian keterangan barang kes telah terputus sebelum ianya dihantar kepada SP2 untuk dianalisa. Keterangan lisan yang diberikan oleh SP3 dan SP4 dan rujukan terhadap P10, P13, P14 adalah tidak konsisten dan bercanggah antara satu sama lain berkenaan berat kasar dadah. Maka, sememangnya wujud persoalan adalkah barang kes yang sama yang dirampas dari OKT dihantar kepada SP2 untuk dianalisa. 60.12 Keraguan ini terus bersambung apabila barang kes tersebut dikemukakan kepada SP2 unutk dianalisa, memandangakan ahli kimia pula menyatakan berat kasar yang diperolehi terehadap H2-H15 adalah 11.7809. Tiada ada sebarang soalan berupa penjelasan dari pihak pendakwaan terhadap SP2 mahupun dari SP4 berkenaan isu ini. Dalam hal ini, Mahkamah merujuk kepada kes Lim Pah Soon v PP [2013] 8 CLJ 800, di mana Mahkamah Rayuan memutuskan seperti berikut: – “(3) The dangerous drugs itself constituted the very corpus delicti of the offence and in sustaining a conviction under s. 39B (2) of the Act, the identity and integrity of the corpus delict must be established beyond reasonable doubt. Where there is a material discrepancy in the weight of the drug exhibit as found by the police and the chemist, it is incumbent on the prosecution to explain such discrepancy satisfactorily. The absence of a reasonable explanation would give rise to a reasonable doubt on the identity of the drugs exhibits. Further, it was a contradiction in terms to say that there was no break in the chain of evidence when in fact there exists material discrepancy as to the weight of the drug exhibit. S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 [16] Coming back to the present case, unlike the case of Zaifull Muhammad, it is true that there is only one material discrepancy as to the gross weight of the drugs exhibits. In our judgment, even though there existed only one material discrepancy in the present case as found by the police and the chemist, which was left unexplained, this created a reasonable doubt as to the identity of the drugs exhibits in question. Under such circumstances, as made clear by the learned Chief Justice, “it is a contradiction in terms, to say that there is no break in the chain of evidence, when in fact there exists material discrepancy as to the weight of the drug exhibit”. This extract from the judgment of the learned Chief Justice is very significant principle of law to follow. It is also important to note that the Federal Court in Zaifull Muhammad referred to the case of Loh Kah Loon v. PP but prefers the reasoning in both Yeong Kia Heng lwn. PP [1992] 1 CLJ 364; [1992] 1 CLJ (Rep) 372 and Tan Yew Choy v. PP [2009] 4 CLJ 245. The ratio decided laid down in Zaifull Muhammad is that an accused person is entitled to any benefit of reasonable doubt from any material discrepancy, which goes to the identity of the drugs exhibits that is left unexplained. Indeed, the dangerous drugs itself (ketamine and nimetazepam in this instant case), constitutes the very corpus delicti of the offence and in sustaining a conviction under s. 39B (2) of the DDA, the identity and integrity of the corpus delicti must be established beyond reasonable doubt. It is pertinent to note that a unique characteristic of dangerous drugs is that they are not readily identifiable as in fact they are subject to scientific analysis by the chemist to determine their composition and nature. Therefore, a standard more stringent than that applied to cases involving objects which are readily identifiable must be applied. Where there is a material discrepancy in the weight of the drug exhibit as S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 found by the police and the chemist, it is incumbent on the prosecution to explain such discrepancy satisfactorily. Affirmative evidence is required to dispel any lingering or remaining reasonable doubt on the identity of the drugs exhibits. The absence of a reasonable explanation would give rise to a reasonable doubt on the identity of the drugs exhibits. This point has already been made earlier but deserved to be reiterated. Undeniably, Zaifull Muhammad is the latest Federal Court decision on the issue of identity of drugs exhibits. It represents the law on this subject as we apply today. In this way, the learned DPP’s arguments did not overcome the difficulty in the face of the case of Zaifull Muhammad” 60.13 Keterangan dari pihak pendakwaan menunjukkan anggaran berat kasar terhadap H2-15 telah diperolehi setelah membuat dan pengiraan tersebut telah diturunkan secara bertulis dalam P13 dan P14. Memang tidak dapat dinafikan bahawa kesilapan mungkin wujud dari segi penulisan ataupun pengiraan, namun sekiranya ia kesilapan dari segi pengiraan ataupun tulisan, saksi- saksi pendakwaan yang bertanggungjawab untuk memaklumkan perkara tersebut kepada Mahkamah. Mahkamah tidak boleh membuat andaian bahawa perbezaan terhadap anggaran berat kasar tersebut wujud disebabkan kesilapan pada penulisan ataupun pengiraan. Dalam hal ini, Mahkamah merujuk kepada kes kepada Heng Poh Kean v PP and other appeals (2019) 6 MLJ 516, di mana Mahkamah Rayuan memutuskan seperti berikut: - [3] There was no explanation provided by both SP4 and SP8 as to why they were discrepancies of those 3,500 pills. In the absence of a reasonable explanation, the learned judge could not simply brush it aside as immaterial and of no consequences. Under the circumstances, the onus was on the prosecution to offer cogent explanation S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 to rectify the discrepancies and the failure to do so would raise a reasonable doubt in the identity of the drugs (see para 32). 60.14 Berdasarkan kepada alasan-alasan yang dinyatakan di atas, Mahkamah mendapati rantaian keterangan barang kes telah terputus. Oleh demikian, pihak pendakwaan gagal untuk membutkikan satu kes prima facie terhadap OKT. Mahkamah tidak mempunyai pilihan lain selain dari melepaskan dan membebaskan OKT. Mahkamah tidak bersedia untuk mensabitkan OKT, sekiranya OKT dipanggil untuk membela diri dan OKT memilih untuk berdiam diri. Dalam hal ini, Mahkamah merujuk kepada kes Pendakwa Raya v Roslan bin Ishak (2009) MLJU 528, di mana Mahkamah Tinggi memutuskan seperti berikut :- Mahkamah ini berpendapat dengan kecacatan terhadap perbezaan berat yang besar tersebut, yang tiada penjelasan dibawa terhadapnya, maka pihak pendakwaan tidak boleh dikatakan sebagai telah berjaya membuktikan pertuduhan prima facie ke atas tertuduh yang mana tertuduh perlu disabitkan ke atasnya jika berdiam diri. Keraguan yang munasabah telah ditimbulkan iaitu sama ada cannabis yang dirampas oleh pihak polis adalah juga merupakan cannabis yang sama yang telah diserahkan kepada ahli kimia untuk dianalisa dan adakah ianya cannabis yang sama yang telah menjadi sabjek pertuduhan ke atas tertuduh. Mahkamah Persekutuan dalam kes Tan Yew Choy(supra) mengatakan bahawa di atas alasan ini sahaja pun sudah mencukupi bagi tertuduh untuk diberikan manfaat keraguan tersebut. Di dalam kes Yeong Kia Heng (supra) Mahkamah Agung mengatakan di atas kecacatan yang ketara ke atas identiti barang kes iaitu heroin (perbezaan berat 10 gram), perayu tidak sepatutnya dikehendaki dipanggil membela diri di atas pertuduhan tersebut. Kesimpulan [61] Berdasarkan alasan-alasan di atas, OKT dilepaskan dan dibebaskan dari pertuduhan di bawah Seksyen 39 (A) (1) ADB 1952 tanpa dipanggil untuk membela diri. Berdasarkan keputusan ini, Mahkamah juga memerintahkan S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 supaya wang jaminan sejumlah RM4,000 yang telah didepositkan di Mahkamah dikembalikan kepada OKT. Bertarikh 1.11.2023 Disediakan oleh, tt Salini a/p Retanam Majistret Mahkamah Majistret Jenayah 3 Johor bahru Pihak Pendakwaan Puan Nur Aina Binti Muhammad Ismail Tadj Timbalan Pendakwa Raya Johor Pihak Pembelaan Muhammad Faizuddin Bin Abd Ra’fik Peguambela & Peguamcara Tetuan The Law Chambers of Fazaly Ali S/N cM/IMISd0agk008DsCURA **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

DA-24NCvC-47-02/2023

PEMOHON AHMAD ZIL'IE BIN AB RAZAK RESPONDEN 1. ) CHE KAMARUDDIN BIN IBRAHIM 2. ) HUSSIN @ HUSSEIN BIN WAN NAWANG @ W. AWANG

PERJANJIAN JUAL BELI: Isu yang perlu diputuskan mahkamah - sama ada PJB berkenaan meliputi Lot 1275 dan Lot 2647 - berapa harga Lot 1275 dan Lot 2647 dan cara bayarannya - sama ada kedua-dua pihak mematuhi klausa dalam PJB berkaitan dengan pembayaran harga jual beli dalam tempoh yang diperuntukan - sama ada kemudiannya berlaku perubahan kepada terma PJB - sama ada bayaran penuh dibuat dengan perubahan terma PJB berkenaan.

20/11/2023

YA Dato' Roslan Bin Abu Bakar

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=90435bbf-2e26-4dec-a3e4-55dcbb9a9347&Inline=true

Microsoft Word - Appeal 24-47-2-23 Ahmad Zil'ie dekla PJB 1 DALAM MAHKAMAH TINGGI MALAYA DI KOTA BHARU DALAM NEGERI KELANTAN DARUL NAIM, MALAYSIA GUAMAN SIVIL NO: DA-24NCVC-47-02/2023 ANTARA AHMAD ZIL’IE BIN AB. RAZAK … PLAINTIF DAN 1) CHE KAMARUDDIN BIN IBRAHIM 2) HUSSIN @ HUSSIEN BIN WAN NAWANG @ W. AWANG … DEFENDAN PENGHAKIMAN Pengenalan [1] Plaintif memfailkan Saman Pemula ini antara lainnya untuk mendapatkan suatu deklarasi bahawa dia adalah pembeli sah kepada hartanah bernombor GM 1417, Lot 1275, Kampong Bechah Lubok Setokor, Mukim Machang, Jajahan Machang, Kelantan (selepas ini dipanggil “Lot 1275”) dan telah membuat bayaran penuh kepada pembeliannya. Fakta [2] Defendan-Defendan adalah tuan punya berdaftar dan penjual kepada Lot 1275 dan sebidang lagi hartanah yang dikenali sebagai GM 1736, Lot 2647, Kampong Bechah Lubok Setokor, Mukim Machang, Jajahan Machang, Kelantan (selepas ini dipanggil “Lot 2647”). Keluasan Lot 1275 adalah 1.1453 hektar, manakala keluasan Lot 2647 adalah 1.416 hektar (salinan cabutan Lot 1275 dan Lot 2647 di eksibitkan sebagai “AZ-1” dalam affidavit sokongan Plaintif). [3] Plaintif mendakwa dia telah memasuki suatu Perjanjian Jual Beli Lot 1275 dan Lot 2647 (selepas ini dipanggil “PJB”) dengan Defendan-Defendan pada 19.12.2018 dengan harga RM540,000 (sesalinan PJB di eksibitkan sebagai “AZ-2” dalam affidavit sokongan Plaintif). 20/11/2023 16:23:40 DA-24NCvC-47-02/2023 Kand. 22 S/N v1tDkCYu7E2j5FXcu5qTRw **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 [4] Bagi menguruskan transaksi jual beli tersebut, Plaintif telah melantik Tetuan Shihabuddin Syahiful Syahrul sebagai peguamcaranya dan juga sebagai peguam stakeholder. Plaintif mendakwa firma guaman tersebut telah gagal menyempurnakan transaksi penjualan Lot 1275 dan Lot 2647. Oleh yang demikian Plaintif melantik pula Tetuan Amir Azwani & Jailani Norfaruqi bagi melaksanakan transaksi jual beli berkenaan. [5] Selanjutnya Plaintif dan Defendan-Defendan memasuki suatu perjanjian tambahan kepada PJB asal bertarikh 25.4.2019 iaitu Surat Perjanjian Tambahan (selepas ini dipanggil “SPT” dan sesalinannya di eksibitkan sebagai “AZ-3” dalam affidavit sokongan Plaintif). [6] Plaintif selanjutnya mendakwa Defendan-Defendan masih gagal memindahmilik Lot 1275 dan Lot 2647 kepadanya hingga sekarang. Defendan-Defendan pula mendakwa Plaintif gagal membayar sepenuhnya harga jual beli Lot 1275 dan Lot 2647 dan hanya membayar sebayak RM200,000 sahaja semasa menandatangani PJB. Isu [7] Isu yang perlu diputuskan mahkamah adalah: (i) sama ada PJB berkenaan meliputi Lot 1275 dan Lot 2647. (ii) berapa harga Lot 1275 dan Lot 2647 dan cara bayarannya. (iii) sama ada kedua-dua pihak mematuhi klausa dalam PJB berkaitan dengan pembayaran harga jual beli dalam tempoh yang diperuntukan. (iv) sama ada kemudiannya berlaku perubahan kepada terma PJB. (v) sama ada bayaran penuh dibuat dengan perubahan terma PJB berkenaan. Penelitian dan penemuan mahkamah [8] Setelah meneliti dan menimbangkan hujahan kedua-dua pihak, affidavit-afidavit dan eksibit-eksibit dokumentar yang difailkan, saya mendapati suatu PJB bertarikh 19.12.2018 telah dimasuki antara Defendan-Defendan dengan Plaintif (eksibit “AZ-2” dalam affidavit sokongan Plaintif) di mana Defendan-Defendan sebagai pemilik S/N v1tDkCYu7E2j5FXcu5qTRw **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 berdaftar bersetuju menjual Lot 1275 dan Lot 2647 dan Plaintif bersetuju untuk membelinya (dinyatakan di bahagian Mukadimah PJB dan di Seksyen 1 dan Seksyen 2, Jadual 1, PJB). [9] PJB ini telah disediakan oleh peguamcara lantikan Plaintif iaitu Tetuan Shihabuddin Syahiful Syahrul dan juga menjadi peguam stakeholder. [10] Di Seksyen 3, Jadual 1 jelas menyatakan hartanah yang terlibat adalah Lot 1275 seluas 1.1453 hektar dan Lot 2647 seluas 1.416 hektar. Kedua-dua lot berkenaan dijual dengan harga RM540,000 (Seksyen 4, Jadual 1). Plaintif (pembeli) perlu membayar deposit sebanyak RM200,000 semasa menandatangani PJB (Seksyen 6, Jadual 1) dan meninggalkan baki yang perlu dibayar sebanyak RM340,000 (Seksyen 7, Jadual 1). [11] Manakala Seksyen 8, Jadual 1 memperuntukan berhubung dengan cara dan masa pembayaran baki berkenaan iaitu baki mestilah dibayar secara penuh dalam tempoh 12 bulan setelah PJB ditandatangani serta tertakluk pada bayaran baki 50% yang perlu dibayar dalam tempoh 6 bulan pertama. Ini bermaksud Plaintif perlu membayar RM170,000 sebelum 19.6.2019 dan RM170,000 lagi sebelum 19.12.2019. [12] Dari keterangan kedua-dua pihak, tiada pertikaian bahawa Plaintif telah membayar sejumlah RM200,000 semasa menandatangani PJB pada 19.12.2018. Saya juga mendapati tiada pertikaian bahawa terdapatnya suatu perbincangan antara Plaintif dengan Defendan-Defendan pada sekitar bulan April 2019 (sebelum tempoh bayaran pertama sebanyak RM170,000 pada 19.6.2019) berhubung dengan bayaran baki RM340,000 tersebut. [13] Saya berpendapat perbincangan ini telah diusulkan oleh Plaintif kerana tidak dapat membuat bayaran baki RM340,000 dalam tempoh yang diperuntukan di bawah Seksyen 8, Jadual 1. Dalam perbincangan itu Plaintif telah memohon supaya depositnya tidak dirampas dan bercadang untuk membeli Lot 1275 sahaja sekarang. Defendan-Defendan bersetuju dengan permintaan ini dan bersedia menjual Lot 1275 dengan harga RM330,000. Memandangkan Plaintif telah membayar deposit sebanyak RM200,000 semasa menandatangani PJB, Defendan-Defendan meminta Plaintif membayar bayaran baki Lot 1275 sebanyak RM130,000 pada atau sebelum 31.12.2019. S/N v1tDkCYu7E2j5FXcu5qTRw **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 [14] Ekoran dari perbincangan tersebut, kedua-dua pihak memasuki SPT pada 25.4.2019 (eksibit “AZ-3” dalam affidavit sokongan Plaintif). Klausa 2 SPT ini telah merujuk kepada Klausa 10 PJB berhubung dengan kegagalan pihak-pihak mematuhi terma PJB. [15] Klausa 10 PJB memperuntukan: “10. Sekiranya Pembeli telah ingkar atau di dalam kuasanya enggan/gagal/cuai di dalam kewajipannya untuk menyempurnakan terma-terma dan syarat- syarat yang terkandung di dalam Perjanjian ini maka Penjual mempunyai kuasa budi bicara yang mutlak untuk:- d. Merampas wang deposit yang telah dibayar oleh Pembeli kepada Penjual dan membatalkan Perjanjian ini dan kedua-dua pihak tidak lagi ada apa-apa tuntutan di antara satu sama lain. Sebarang lebihan bayaran selepas perampasan deposit sebanyak yang tersebut di atas hendaklah dipulangkan kembali kepada Pembeli pada kadar segera; ATAU a. Berhak ke atas perlaksanaan spesifik Perjanjian ini di mana segala kos dan perbelanjaan dalam tindakan ini akan ditanggung sepenuhnya oleh Pembeli.” [16] Klausa 2 SPT pula memperuntukan: “2) Merujuk klausa 10 dalam Perjanjian Hal Beli yang Bertarikh 19 Disember 2018, sckiranya Pembeli gagal/enggan/cuai untuk membayar Jumlah Kontrak sebanyak RM 540,000.000 maka Penjual/Pembeli mempunyai kuasa budi bicara yang mutlak seperti berikut: a) Penjual tidak boleh merampas sebarang Bayaran Tanah/Deposit yang telah dibayar daripada pihak Pembeli. b) Sekiranya pihak Pembeli gagal untuk menyelesaikan Bayaran Tanah/Deposlt tersebut, maka pihak Penjual dengan rela hati menyerahkan sebahagian tanah sebanyak sejumlah yang telah dibayar kepada pihak Pembeli.” S/N v1tDkCYu7E2j5FXcu5qTRw **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 [17] Berdasarkan kepada terma SPT, Plaintif telah membuat bayaran sebanyak RM20,000 pada 30.5.2019, RM13,000 pada 26.12.2019 dan RM7,000 pada 27.12.2019 (berjumlah RM40,000). Sehingga tarikh 31.12.2019 yang diberikan Defendan-Defendan, Plaintif masih gagal untuk membayar baki RM90,000. [18] Defendan-Defendan telah cuba untuk mendapatkan bayaran baki dari Plaintif pada 2020 dan 2021 tetapi gagal dibayar oleh Plaintif. Plaintif telah menawarkan beberapa bidang hartanah lain kepada Defendan-Defendan sebagai bayaran tetapi ditolak oleh Defendan- Defendan. [19] Selanjutnya pada 30.1.2022, Plaintif telah memasukan kaveat persendirian ke atas Lot 1275 (eksibit “CK-1” dalam affidavit jawapan Defendan 1). Plaintif juga menolak tawaran penyelesaian dari Defendan-Defendan bahawa harga Lot 1275 sekarang dikurangkan kepada RM300,000 dan Plaintif hanya perlu membayar baki RM60,000 sahaja (salinan surat Defendan- Defendan bertarikh 11.12.2022 yang di eksibitkan sebagai “AZ-10” dan surat penolakan Plaintif di eksibit “AZ-11” dalam affidavit sokongan Plaintif). Akhirnya pada 15.2.2023, Plaintif memfailkan Saman Pemula ini bagi menuntut Lot 1275 dipindah milik kepadanya dengan harga RM240,000. [20] Berdasarkan kepada penemuan-penemuan tersebut, saya selanjutnya mendapati dalam PJB bertarikh 19.12.2018 tidak dinyatakan secara khusus harga bagi setiap lot berkenaan (Lot 1275 dan Lot 2647). Kedua-dua lot dijual dengan harga global sebanyak RM540,000. Begitu juga peruntukan dalam SPT. [21] Namun Plaintif menghujahkan bahawa Defendan-Defendan bersetuju secara lisan untuk menjual Lot 1275 dengan harga RM240,000. Saya mendapati tiada keterangan yang menunjukan Defendan-Defendan bersetuju menjual Lot 1275 dengan harga RM240,000. Saya berpendapat hujahan Plaintif bahawa terdapat perjanjian lisan dengan Defendan-Defendan adalah suatu rekaan dan afterthought. [22] Tidak mungkin ada suatu perjanjian lisan sedemikian kerana terdapatnya SPT dimasuki apabila Plaintif gagal membayar baki harga Lot 1275 dan Lot 2647. Saya mendapati adalah tidak munasabah bila terdapatnya suatu SPT tetapi masih ada suatu S/N v1tDkCYu7E2j5FXcu5qTRw **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 perjanjian lisan pula berhubung dengan harga Lot 1275. Sepatutnya terma tersebut telah dimasukan dalam SPT. [23] Saya percaya Plaintif telah mempersetujui harga Lot 1275 sebanyak RM330,000 seperti yang ditawarkan oleh Defendan- Defendan. Oleh sebab itulah SPT dimasuki dan ditandatangani oleh kedua-dua pihak pada 11.12.2019. Ini dapat disahkan sendiri melalui Klausa 2 (i) SPT di mana Defendan-Defendan tidak lagi berhak merampas wang deposit jika Plaintif gagal membayar baki harga Lot 1275. [24] Manakala Klausa 2(ii) SPT pula, Defendan-Defendan dengan rela hati menyerahkan sebahagian tanah dengan jumlah yang telah dibayar oleh Plaintif. Saya berpendapat bahawa terma-terma untuk SPT telah dipersetujui oleh kedua-dua pihak sebelum SPT ini ditandatangani. Ini bermaksud: (a) harga yang dipersetujui adalah RM330,000. (b) sebahagian tanah adalah bermaksud Lot 1275. (c) “rela hati” oleh Defendan-Defendan untuk Lot 1275 dengan harga RM330,000. [25] Saya berpendapat inilah niat Defendan-Defendan dan Plaintif yang telah membuat mereka menandatangani SPT. Ini selaras dengan prinsip dalam kes Glamour Green Sdn Bhd v Ambank Bhd & Ors & Anor [2007] 3 CLJ 413 CA: “[7] It is a settled guiding principle that where in a transaction more than one document or instrument is involved, courts usually construe those documents together. The point was made by Raja Azlan J in Mohamed Isa & Ors v. Abdul Karim & Ors [1970] 1 LNS 82; [1970] 2 MLJ 165 in a language that cannot be rivalled. This is what Raja Azlan J (as His Royal Highness then was) said: It is a settled rule of construction that where several documents forming part of one transaction are executed contemporaneously, all the documents must be read together as if they are one. This principle was followed in Idris bin Haji Mohamed v. Ng Ah Siew, supra, where Terrell J. at page 261 said: It is a well known rule of construction that where the arrangement between parties is contained in S/N v1tDkCYu7E2j5FXcu5qTRw **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 several documents all executed simultaneously, all the documents must be read together to ascertain the intention of the parties, and it is a corollary from this that the intention must be gathered from the documents as a whole. … … [29] Before we quote from the next authority, we think it useful to note a few points about Lord Hoffmanns' speech in the Investor 's case. First, a court interpreting a private contract is not confined to the four corners of the document. It is entitled to look at the factual matrix forming the background to the transaction. Second, the factual matrix which forms the background transaction includes all material that was reasonably available to the parties. Third, the interpreting court must disregard any part of the background that is declaratory of subjective intent only. Lastly, the court should adopt an objective approach when interpreting a private contract.” [26] Kedua-dua pihak juga adalah terikat dengan terma-terma PJB dan SPT yang telah mereka tandatangani. Kedudukan ini telah diputuskan dalam kes-kes: Wan Salimah bte Wan Jaffar v Mahmood bin Omar (Anim bte Abdul Aziz, Intervener) [1998] 5 MLJ 162: “It is trite law that when a party signs a contact knowing it to be a contract which governs the relations between them, like the present case, then, to use the words of Lord Denning J (as he then was) in Curtis v Chemical Cleaning & Dyeing Co. Ltd [1951] 1 All ER 631, his signature is irrefragable evidence of his assent to the whole contract, including the exempting clauses, unless the signature is shown to be obtained by fraud or misrepresentation.” Yuson Bein & Anor v Bankers Trust Co. Ltd [1970] 1 MLJ 32 FC: “Consequently, appellants were bound in the absence of fraud or warranty however clearly they might afterwards make it appear that they were labouring under a mistaken in their acceptance of the proposal. They cannot be allowed to escape from the effect of their agreement by merely showing that they understood the terms in a different sense from that which the terms bear in their legal effect.” S/N v1tDkCYu7E2j5FXcu5qTRw **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 [27] Isu-isu seperti harga Lot 1275 sebanyak RM220,000 (seperti laporan penilaian yang dikemukakan Plaintif sebagai eksibit “AZ-13“ dalam affidavit balasan 1 Plaintif) dan sama ada paras Lot 1275 lebih tinggi dari Lot 2647 serta tidak terkena banjir, adalah tidak relevan kerana SPT dan PJB telah dimasuki oleh Plaintif dengan Defendan-Defendan setelah mengetahui, memahami dan mempersetujui terma-termanya (willing buyer and willing seller). Keputusan [28] Berdasarkan kepada penemuan-penemuan tersebut dan atas imbangan kebarangkalian, saya menolak relif-relif yang dipohon Plaintif dalam Saman Pemula ini. [29] Plaintif diperintahkan membayar kos kepada Defendan-Defendan (berkongsi) sebanyak RM10,000 dan tertakluk pada 4% alokatur. Bertarikh: 17 November 2023. (ROSLAN BIN ABU BAKAR) Hakim Mahkamah Tinggi Kota Bharu. PIHAK-PIHAK: Bagi pihak Plaintif: Tetuan Aqielah, Baskaran & Co, Unit 2-1, The Cube, Jalan 6/18a, Taman Mastiara, Jalan Ipoh, 51200 Kuala Lumpur. Bagi pihak Defendan: Tetuan Zainal & Mariani, Lot 356 & 357 Tingkat 1, Wisma Zainal & Mariani, Jalan Sultan Ibrahim, 15150 Kota Bharu, Kelantan. S/N v1tDkCYu7E2j5FXcu5qTRw **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

PA-22NCvC-165-11/2022

PLAINTIF INTERGATEWAY FREIGHT SDN BHD DEFENDAN SAM KAR CHYI

Claim by company (plaintiff) against a former employee (defendant) for debt owed by a customer of company – Whether defendant was negligent in generating invoices to the customer – Whether defendant caused the loss of the debt owed by the customer to plaintiff – Whether damages too remote – Whether plaintiff has exhausted its legal remedy against the customer.

20/11/2023

YA Dato' Quay Chew Soon

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=aaec2dda-b30d-4794-8bd9-61466b6b4a8e&Inline=true

In Ine HIgh coon oI Ma1aya In Fenang In me sIaIe or Fenang, MaIaysIe 35 ‘IQ022 InIergaIeway Freight son she . I:-IemIIII And Sam Kar Chyl . Defendant Gmunoa of Judgment In Ioducuon 1 This IS a claim by an employer Ine PlaIn|If1("F') agaInsI Ice lormer employee me Defendant (“D”| Ier a sum eI RMI,357,429. The sam sum IS eweo by a cusmmer or P, one sanmme-scI sysIema (MeIaysIe) son Bhd (“Slnrllillfj After a full ma|‘ I dIsmIsssd P's cIaIm Here are the grmmds o! my Iudgmsnl Bacggwund lag; 2 D was an employee oI F Irom 3 4 2017, working as an “Officer - Aaooume a. Cuslomer semoe-. He was In onarge oI P's ousnomers. amongslomers, SarmIIrIa's aoeoonI. sennune IS a muMI»na|IonaI company max nas been engagmg P's sennoes smoe year 2am to dale. P consIdered sannuna as one o: Is mam cusmmers 3. n was Iranslerred to me payrou ov Hana Manamega Sdn and on 27.9 2022. He Ienoerer: ms msrgnauan a Iew days law on 2.10.2022 wIm ImmeoIaIe enact Both P and Hana Mahemega son Bhd are owned by I=w—1 (Executwe Dvectnrcf P) Pw—1 Is me oa4aurIdemIF, |ogeIharwIm ms wire 4. Three oays aner D's resIgnaIIon, P‘s sohcnors Issued a leller oI oemeno aaIeo 5102022 ageInsI n In InaI Ieuer, P cIeImeo that D‘s nsghgenoe WI generaung Inymoee Io sanmme heo eaueeo P Io suller ‘an eeI.maIeo IorecasI Ioss at revenue av RM1 mI|IIon1anIaIIve|y F’ further sIaIed InaI II ‘shafl (ry Io veouver and mu aII necasary am: In uompllance Io Ine Sennoe Lave! Agreement‘ 5 Tne alorasaid Iellerof demand was not dahvered lo D at tttat potnt M ttnta D stgtttea the letter lor the Inst ttnte when tt was Iurntsned by P‘: munset tn D‘! oounset after the cutnntencement of the tnstant suit 6 Less than two months Iaten P instttuted the instant sutt agatnst D on 29 H 2022‘ ctattntng a sum at RM1,357,429 Dunng the tnal, tt was dtsctcsed by P's subpoenaed wttnsss. PW-A lmm santntna, tnat P had accepted a sum or RM74(-L945.6E ofleted by sanntina as tun and final settlement at the actuat sum awed. The Platntttrs case 7 P dams that V! has stmered a loss at RM|.357,429 due In D‘: negligence |o submll tne mvotces mu) santntn.-ta pans! known as ens Ths was In have been done wtt 150 days tmttt the relevant delivery dates, ID enabte Ssnmtna to make payment P aHeges lhal D had lavled (0 ttsntana payment lrum sannttna and to ensure tnat payment ts made P tunhat alleges that n caused the loss to P on purpose Tne Datent1ant‘s case :3 Us case ts thts tat P has uattnaa payntent tnmt Im wtpng puny The sunt pt RM1t351,02v VS Dwsd Dy Samntnata P P shnuld have ctatnett tne said sunt ttpnt Sllvvlln-I Much ts stttt wttnttt ttnte In ctatm. tut D V5 Hm nnvy In tne sentmtuat anattganttm tntween P and sanntttta u ts ml the person who antpyua tne sampes pm»/Med py P tp ssnnttn. pettatntng to In ssta aunt MRMI 357.429, (c) n car\no| pe hsttt tespenstpte |o aniuve tnat paymenl ts made by sannttna mat a not a tann tn D's|dt1er ul antptpyntent tt ts unteasonapta tnat an employee ttas tu gllavlfltet payment betng matte Dy ttts smplvysfs eustantan ta) D1: ntttttet awme nattntotntsa that lhals tu ttntnattpn pettpa cl 180 days tp etatnt pnymem lmm Sanlmllat am tet P has Iatled tp hku raasonahle steps to tntttpats tts pulvuflsd tess pt mttasvtazs natton Issue for 34. P could have sent more s|afl |o hexp out In generaung me mvclues on Sanmma‘s OTIS worm. PW-2 (Cuslomer servme Manager pi Pb «esurved that u would be «me easy for anomar sxaw to learn me job. A 0 A 0 A I: m mam: In Veauw No New n I may ask. Muss new, how mucmlme you lake up Iaam axmum iYI1nm7 crsx synam Abun halt aay ma new, new I would we In veierm on ma Bflycurs. me ywu evev suggested In ynur may Mr Cmmvg Ia assxgn we workers ov mar: empbyees to new om Sam? Yes - 35. However. not only an P van lo pul aaampnay scan on me job, P lulled lo rsmaee a depsmng snaw who was womng on Sanmxnds ens penal D lsslmed as Iollaws m reaxammauon. -0 sm Much obhged My Lard Ihankywu I'm ready wnm my reexammauan. Ennnk sam, says aaa behevspa soelan unmk mma Enclk Sam bua| venmasan Soalan panama save‘ (an: osauamcara P\aml\l ada radanckan kapada Encwk Sam bahawa dalam s-mas: lampoh tahun zms uhmgga 2022, hunyahh Enclk sam yang mm unluk macam mxni pakaw cvsx rmflil dan piwivnn Enuk sam adahh (Id-k latum amen rnlnng Enuk Snm yeuaxan swans um yam Iahu aunaw Tahun zme, masa nu Speak «me me, Sneak up me me Yanun zms. mats nu Mawls up can Ar-we Mm akan lzhu danu mans crs: semngga Magg Valak jawman, hanyl aaya aangan Angle um sap: (nhu ' 35. mm, PW-1 (Execulnve D|rec|orofP)at1mmed that n \s very common In have huge outstanding sum mymg by as customers. P would manage me si|uaImn by engagmg wv|h me cusmmev In me present case hawever, F appears up be taking a son approach m dealmg mm |hIs parliculav cusmmer, sanmma. And Instead go hard on us former employee. D. 37 PW-1 tarsufled as (allows m rsexanunauon. in Mr Chnong rm gmngm ask yau severll aueaama backwhereby where ynu have msngreed woman the amamema or auesunns mm were asked my my learned Mend oxay. Ihe nusl fiuesmn .5. you were mcenen up hurvme amp, pumxe 5195, 9899 am), and yuu wens may rmsrmd la pass m Now, \e| me say me slammam man, am mm mm ask you «a axwalnta ma spun Whal you we at page we ov you look back Ilamng Vmm 299 men hlnscllpl bmwean yen and ma Delewdanl. yuuwave nskad who .a Mnggne. you answered Maggie us the exemlwe handlmg SnnmIms‘s account Well m u 2019, and yuu were reierreu re severei irnee oi oonvoruiion uanicuiany wimpy Sam i! going in lag uiono wiin Maggie, and men ierer in was asked ui yuu uuu ugree inei ei inei nrne Sarimlria uweu you quire supeiarnrei mnneyi inuiwes ine ouesnon Ind ynu uuegreeu Can you axplairi why yuu aisepreeu vnin mei sV.=\amen|1n ine couni A our mdlmvy we have «me very eernrnuniy we do oonnnuniure hm il ueesni Ivaily reneei rnei mere I5 . nernrno in do vnin r rneen inu scenario. «nun nnre to nine we have delay in payments wt mve erneuni oi hundred ineusenu we nave irorn mm. In iirne, so we very oornrnen ror us io ga| sonrepuayio gu io and Ira |n discuss uwrm rne chem in gel Diem In my on |ima So‘ rn very oornrnen espeeieiiv rne Ioqlshcs indunry‘ 35 Founn, P is sreiuioniy required to prepare and submit ennuei euaiieo accounts In ine curnperuee Commission oi Maiaysia in the course ol preparing ine financial siaiernenie, P would have disonvered ine iow peyrneni received irorn senrnine. 39 Under cross exarninairon, PW—1 Ieslifled esioiiuwe. ~o Aingm And your company wrii prepare me euuuea sreierneni every year, ism in we have Vuuraccaurils audited every year vee, we nuve And vuu vvouia nave also rnoniiorea are revenue arid ine peyrnerri, me oumanding payrlierifluryuurcusmmers amass ine board, wires: ornow ves Eapaciaily ynur mainr eusmrners, you nave 3, iusi mw vau menlinnedu one M men. I! sernnine Yes You wouia nave pay cinu .II|Iri|ian to me iineuuiuiei ves- >9» >0 o>::r> 40 In ine circumslarioes, P nea every opponunny [0 cake remedial anion and io pursue its ouieienoing rnvoiees irorn Sanmlna However, P sat on ils rignis and did nui pursue me euisianding invoioes driigeniiy irorn sennuna i= oannoi nmv biame D iur iie purported loss (h Tire Deiendani is no; privy In one eanireciuei arrarigerrien belweeri ine Fiairitifl and sen na Ai Anomer reeeon why in canrio| be neiu Iable var P‘s purporieo loss or RM1,357‘429 re oeeeuee D was noi privy In the cnn|raI:1 helweeri P and sanrnino Thus, we alleged ieu days lime periuu «or invoicing agreed upon between P enu Sanmiria cennoi be invoked agains| D i2 42. ln Glnmac Allrancs sun Bhd V Nardm mn Md zaln [2023] 3 Mu 393. me Cuurl of Appeal said -1531 7n. lbunco oIlPVIvil‘r0Izanlnnm-nnan mm um plilnmnnd me dcrhndnnlundu mu Glumln agmnmn rind»: rho arrglnulng summons . rlon~tlnrnr Not only me pmnun nu no em. ofacllon agalnn MI umnum ml Also nu no moms. aualnsl me defendlnl Imdnr mu Glomac amemenx - 43 aelng e slrenger to me mnlracl perween P and sannlina, D pannpl pnsslbly he held llama la any conlractual lenn In me said wmrac|. on lap nl max, I acoepl lnal D was no| lnlornlea :71 me can days lenn ln lhe epnnacl There IS nu evidenue proffered by F, save lm me alleged vsmal nulificallpn by PW—1 44 Under cross exarnlnalion, D Ieslllred as lollows la Erlclk sam, Kamu sedar lak pada Iamm 2m, mula darl lallun znlz Enuk Sam ssdav lak akarl lenna Pambayarin Irwuls Sanmlru lalm «an him? Erlclk Sam emmklanne lnl7 mu lea. menglknl kelernrlgarl Ennlk Sam bllaksh kall penama Enclk Sam aengar belkenaan aenpan lao nan W7 Masa lenma lnlarlvlamn darl peuuann save Maksudnya lvlasa lmdakavl Quinlan mIdlVal|Karl|Ih7 va )0) 0» 45 If an all me «so days (arm ls slnclly erlfmced ln lne eommemlal deallng bemeen P and spnmina. P could nave issued a epmpany memo, ernall or reminder H1 wrmng lo D and me other acuuunls persunnel P's accmmls personnel cpula have been specifically tasked In ensuve slrlcl cpmpllanoe wllh lne 130 days |eml Bul ms was ncl done, as admllled by Pw—1 In cross examlna|mn. -cl mm luck nl on nag da ynu Saree wllh me man lnmunmnl lne nevennnm wpmng wl|h you slm:e 2007 all me way unIlI2l122 heiole he ressgnea Vlom Hana Mahamefial you have naval lemlrlded we oelanaanl In wnnna on me can days lenn that you merltlorlad lust now lmposed by Savlmlrla You nave navel ml aflylhlrvg .n wnnng lp lne nelannanl. up-new Conan sp‘ nm In uy la lemma lhil ne ms not done er M131 hm you have also rleuellell hlm W wvlllng Ihal ellnerwnalswe emzll, Iellel. memo lnal musl onmply sxnuly mn mo days lemll you rlevel, lsYl'1lW uplnlng W wnlmg A lpnlyxell vemalonli/' 0) 13 45. Psmnsnfly. D rred rrertrrer enjoyed nu! trerremted from me servrces provrded by P lo Sanmma As the recrprerrt entre said servrees, Sanmma alone hears the obhgauon to pay P (or me servir-,es rendered. Thus. trre Dhllgalron |o pay me oulslandlng sum M5 wllh sarrrrrirrar not D Trre purported rose at RM1,as7,42s re trre arrears or payment owed by sarrrrrine n has nalmng to do wrtrr D ( The PI nln1[]§§ 9 gghgustad rte mar remedy agarrrsrserrrrrrne 47 P eorrrplerrrs that D not demand payment from Ssnmma wrrrrrrr ran days tram the re\evanl dehvery dares, resumng In e noes or RM1r3§‘/‘A29. However, I|appearsIha\ P rrrrgrrrerm have reeerrree agamsl Sarvmna m respect 0! trre oulslanding sum I agree mm D that F rree nn| exhausted i|s legal remedy egernsr Sanmma 48 P and Sanmma had entered rrrto a Master corrtracr luv Legrerrc servroes on 1 2 2015 and 1.32021 reepectrvely. II provrdes as follows. ‘2 21:7 Servlcu Pmvluer MU uu rensnnable mmmemal errors In praslm cornprere and count! mvovnes tn smwr lav servroee wrrrrrrr trrrrry (30) day: at rrre dshvuy emre enrrre shvpmenl ar deeurramorr rrrwrm vrssenled rerer lhan one hundred ergrrry (1 am days hum Inu dale or impmunt wru no| be accepled or paid: nor em Servtce Provide! aooepl dawns for averpnymems one hundred and ergrrry days tram Drum rrre are D! shIpmum' A9 PW-4, me srrppry crrerrr Prqect Manager lwm Sanmrna, manhonsd lhaI\hew18D days clause in the contract Is governed by Camomian Slate Lew. -n You erre turd rrre com um yflu have seek reger ad»/we on rrre rrrerrer an ran am rerrr. when ymn were asked w you were ewere tree eerrrd be 3 hmtlntmn 016 years and you mum 61I\lc\aIm,nghl’V A vee o wrret have you bean amine’ A we ran been auvlud hy rrre reerrrrrr Ihai seerre trrar the wmvad me: we rm m place etpreeery ereree trral rre errroreemerr er rrre wmmcl wiH ee based an Camommn state Law so, the raw firm rrrer advrsed Us sure advised us that me Iyprca\ approach er rrre Mllaysdin cm System re rrrer rtwm nmseek Ioeniovce cm Vugrxlmnn elanmherjunsmchon wmch rrre um eorrrpererr ll) snlovcl se Vrke rrr lhns case rrre oon|rac1 re based an Calflumun srere Law rrr nnalltev words, rm rewyerrera us lhallha law rrrrrr rem uslhamls unflkely |haltha|wm1a<;\wrI\ ac1u:Hy be trre rvg mgarmess at whatever tre Mareyererr reger syilnm sly: r su. rrr submrsstcnsr D crted rrre cede or CMI Pmeedrrre 0! camorrria and argued trret trre hrmlauon period Is lour years 11 Secilan :37 wlllnnlauryeera (la) An armon upon any mnlrad, bbluallen or llabrllly Valmded upen an lrls|mmen| ln wnllnd. exoevl as Dmv-den In secllon aaea; Wovldadl man we Mme wllhm wnlcrr any aellpn lpr a mom ludenlenl our the balance due upon an bbl-dallcn lar me nay-nenl cl wrncn a dead pl (run or molwage wllh pvwev cl eale uppn real properly er iny lnleml lnereln wu glven an aeednny, ldllewlne lne exercise av lne pawer bl aele M such deed ollnal ar mangage may be breugnl anall um exlead beyond mree manlhs after me lnne el sale under such deed nl lrusl er modgfige ~ 51 D eonlends lrlal P's clslm agalrlsl sarlrnlna IS nol llrne barred, even ln llle oonlsxl al celllorrllen slale Law slrloe (our years have not elapsed at me llme when P lnalnuled me lnalarll sull on 29.11.2022. Bul I am reluclanl ID accept D's contenliun when nu evidence, ln pamcular larelgn expen legal cpiniun. nus been adduced on one pclnl 52. Conversely however. ll nas nol been proyen by P lrlel lls c ldr me eulalandlng aurn agalnel Sarlmlrla la llrne barred. olner lnan me bare aseemon bl ewe, P dld ndl prerler any eyldenee lo ealapllan lnal ll IS precluded lmrn clalrmng me pulelandlng sum lrdrn Sanmlna by vlnue bl me 180 days clause 53. under Malayslan law, me llrnllalion period to clalrn a debt arlslng lrcrn a eenlracl ls 6 years. (see secllon 6(l){a) ol lrle Llrrulallon Acl 195:4) A ebnlreelual prdylslen whlch seeks lb lmpaae a llrnllallon penad or 150 days ls arguably vold by vlrlue bl salmon 29 el lne conu-eels Ael 1950. As >1 would nave lne eilecl at llmlllng lna lime wilhln whlch a parly may enlprce I|s ngnle lp pursue a deal (See me ccurl emppeal case bl MEI Irlsurarls sdn EM v Lerrlbaga Perlyaluan 5 Pemulihan Tanah Persekuluarl (FELCRA) [2005] 2 MLJ 395;. 54. Pmllng aslde lhe govsmlrlg law, me laels suggeel lrlal sanlnlna nan nbl slrlcfly erlldrced lne 150 days eleuee ll le nblewdnny lrlal Sarlmlrla nad ncl releaed P's clalln hack ln Neyernber 2022 wnerl ||'le inslanl sull was filed lnslead, sanlnlna had requesled P10 send ln lne lnyolbes and suppomng dbcumenls lo! yalld ‘ purpose Thls nappened wnen P nbllned sannllrle dune unpaid lnvolces yle an enlall daled 17 10.2022 55 II ls evldenl mal Sanmlna was dboperallye. Tnere la na documenlary eyldenoe showlng sanrnlna laklng lne slance lnallne servlces whlch were nul bllled Wllhm 180 days were rejecled or no lcnger blalrnaple by P on me corurary. Sanmirla requesled P lo subrnll me lnydlces lcr sembes lhal were rendered more men 130 days ago. «.5 55 ms was mnlrrnued by Fw—1 (Exec-Auve Dvectcr of P) under cross examinaliun 1: A n A And M Inn msysrs vury osupursuvs, they sml askyouu) bend u. rum sssy mvmnes lav them to usnry Ian rrr ‘(as may navnr stun yuu nlhhe door Imm mu hogmnmg. mes: or nor my in vvy mavenanve on, yes “ 57 As well as by PW-2 (Customer ssnnoe Manager of P) in cross exammanon. -o wm I mennns when -n NovembAr2D22. Snnmma asked you to send rn su meinvn\ces.oorre<:1’ Yhal .s nan pnid A vss 0 Am Sanmma has not /epemed rn, may um vsquusl ysu In send In ms mvolcax, suusm A vs. 0 And as lav as you knuw Mrss new, more mus mselmg am. msrs Is no smgla wmten arm. I mu say msrs rs nu smgla emml «rum Senmlna say ma| xuuuss yuu have me Piamhfl was 11:11 clmm Var cns mu wunu. sea dayn. so ssruruns mu nu! pay There u no sum email Isn'| n «mm SIHMIM7 A vss no" 53. ll Is nalewonhy that there were prsvrous occasions where Sanmma aooapled P's mv s mat were more than 130 days uld. This was cunfinned by PW-I under cross sxamrnsnsn, ‘Q >9) 0) Amgm Look at page 34;, m we nusaus pan‘ ms srnau -s sun by suzsnu to Sam dale 09 as zoza Jus| rsrsr In a law Imus with me Vnvnloe cars, 25 07 zmu, you :aw:|7 Aunu mmsm pan, mus ml Imam, Hum? The kn ohnvmznsy rm Iookmg auheiwsl snu sacand hue msn, you saw1l’7 vss 25 07 2019, men ms swarm ans V5 3101 2019 mu nm the masses, unhrr Carved’ consu Can you new roux suns dale agam‘ us nsyunu me says mu! M Van - 59 From me swdenoe, Sanmma has not In wrmng rsyeaad P's claim. even unli the tnal oi the ms'anl suit There rs no ernafl or letler from Sanmma much bars P's claun for mvuioas that are aVder lhan 150 days On the contrary‘ SanmIni‘s Vettel dated 12.4.2023 appears «u be dlolomatic and um cosrcwe an nature u reads as “Disputed llwolcui Dear Mr Cmong, Fullrlsr in uur Dulriparilu‘ mam wneevm-lenses regarding (he dlspuled lnmees assauaied wnn frelgl'l| semees pmvlded helweerl omnel we and seplemuer 2022. we are willing m pay MYR 749,945 as lm increase ol MVR l25,251 731m exdlansle for a lull release oizil Dzymerll—rsialud claims‘ so. P had acoepied Sanmlrufs offer |o pay a sum or RM749,945 as ll seems in me ihai P's aocepiarice ol a lower sum is mollvalea by a desire lo rial uilena a malor customer and risk losing lnelr business. This was admihad as much by PW—1 A I lrllnk I hava anlwumd M, I luv: rin npliun. llI'l(1l(hE maxim services agleemenl smeel clearly ii‘: cur lulule in hlli lnem wnnln lne sllpululea ml days and may have all me nglus rlci in pay us us one Two our valid ellenl, do we wiarli lo orlend our cllenl and kvsi ull me buslrlussei lor irle Mare’? l will Ialrlerlusl luliaw one as long as ITS reasonable than we have «me close - 61 W P chooses In accept a Iuwer sum (mm Sanmlna, that E iis Dreiogaiive, But P Carmel rlow lurri around and seek to make D liable [or me balance remairlirig sum. Obviously, Dis an easy largel As compared to lrle corporate might or an imporlarll customer, e2. Pseemsia have no qualms in pursuing ||'le oulelenalng amourliawed by San na from lls lumler employee, D. sul l would not condone sucn oppressive cunduci More so, when P has nol been eonslslenl lrl lls stance, as seen below 63. Through its lawyers. F had Issued 3 Ieller oidernand dated 5,10 2022 against D. in the leiier OI demand, F explicitly slated Ihai It needed in address the matter WIH1 Sanmlna in accordance with (he Service Level Aueenenl -mm. D1 lmgnl la lnslllul. iugal Ii:|lori for grass rlugllgarllx una «mime la plrfuml duly dlllglrlily 3 As suen nur ullenl has Irlslrucled us In lrllaml Vial .n in: everli ins amoum sum lnal you have talked, neullgemiy or orlilllefl in penmnung youmuwalllnsnny wnlcn were ol wllnln yum personal knowledge, lemalns oumarldirlg arid uwlrlfl ulwrllch our clisrli iriali lryiu recover arid do all nacnsarya-:1: in culrlpllance in the Samoa Lani Agreement, 771 ml mnl, wrc nl mil hold ynu ilnbi: (mall imuum owing and uuixiaridlrvg, wsll arid unsrlsul ensmg eul al and >71 relmlarl lhereln “ w 64 Nevenhefless‘ mere we no evvdence to Show that P had attempted to recover the culslandmg sum lwm Sanmina m pr around October and Nnvember 2022 Instead, P men me instant sum ‘us! aver a mmlh aker sending the alorernenupnsa lane: of demand And n would seem, wnusx negenaluons were ungulng pemeen F and Sanmlna E5 Premised on \he above. I oonsmer F‘s aclmn m Ming the instant Sull agamsl u as premalure and oppresswe. To my mind. P nas not exhausted me necessary steps to cwanrn llom Sanmma. Vnslead, P commenced mus legal acnon agamst D Io claim «pr me payment owed by sannnna. d) Doublgrgpvem nolgerm ed as F Inmaled this begal action against n clalmmg a sum of Rm,351.429, being me purpnned Voss suaareu by P The claim sum carresponds to me oulstandmg amount owed by Sanmma Durlng lheIr\a1 I suflaoed Ihak Sanmma had sveady paid some ponmn of the oulslandlng sum to F. And womd be pmgrssswew paying runner amaunn. to P. 57. Pw—A (Supp\y cnam Project Manager or Sanmlna) leslmed unuer cross exammahun max Sanmlna has wmmifled to making a payment ol around RM75o,DUD -0 Ir you wank n| me anrpunu approved nere. W you wera up add up RM3§7.73367 pm ammyzazaa, we will name up to the «pure pr RMs§7.0160Ion7y am N51 rmw you an rnenuon Ina approved amount vs arpuna RM749,uony In where a lhe balance ova-uuna saw Already pawn bocauxe nus 750x‘ Rwwyuou payrnenn lhey are rnana pmgrasmexy Q: 1 us A 50 dlmnq me me whsn «ms emu was seru. n omy lists dawn (hose Vvwmoes wnrcn was ml yel pm‘! 50 n omar words «mp Vs ‘nu aulslandmq that make up we 150k 0 So Irv: bahnni sn uyer have been paid up P\am|M axreaayr A V55 a B-11 Plamml saw that may never reoewe any paymenl, are you zlwnre or Ihaw A x was miurmed mm Ihey naye rm raeewaa pay-mam, yes. am we Is 0 sp wmch Vs mm Whemm have pm pawn emm saw or how’ A Payment definhew nave bun midi bul an lhis palm .n Mm x ppununn answer me quempn ol haw much have aaen pawn because niymerfl rs made progresswery 0 So aennnary mere a some paymsn|maoem1ho Flawmfl a\reedy'7 A Defimmy yes Cu Okay But you are no| sure abaulme amna aa how much am al\ man A Allms new n Mme, no‘ ldnn‘\ my. the exact number vs ea Based on lne documenlary evidence sanmina had ollereo lo pay RM7o9.945 as in excnange ler a lull release oi all 'aaymerrl-relaled claims' sanmina did nol specily in ils eiler leller dated 124.2023 eonoernrng the reason my lna balance amounl is nol paid. The lerrn 'dispuled invoices“ associaled wiin lreignl services provided beiwaen oclober 2019 and seplemberzozz, as stated in sanm a's leller, oould bear vanouls meaning And nol due lo lne 130 days lime bar, as alleged by F. as in iigni ol mas deuelopmenl‘ RM5D7.A83 31 in us submissions in reply however, P claimed a sum oi RMso7.739,so. By my calculalion, me balance sum is Rmsbuaa 32 Afler deducting lrie selllemeril sum oi RM749.945 as lrom lne claim sum el RMI.357,429. 70 Double recovery I5 nor permiued in law lsee lne courl oi Appeal case or Mak slew wer y Yeah Eng Kong a olner appeals [2020] 1 MLJ 253) P quile sensibly laclored in me selllemenl sum paid by sanmina Allriougrr lliere seems lo be some conlusion over lire correcl amounl in be dedueled. am regardless wnelner il be me lull claim sum or a reduced sum my conclusion remains lnal D is not liable lor lne balance amounl unpaid by sanmina 71 P mlgh| be upset about D's sudden resignanon Perhaps D muld be laulled lor nol giving sumcienl nolice oi nis resignalion P may well be emailed lo claim lor oaymenl in lieu ol nolioe aoainsl D But Io anempl lo make D liable lor lne oulslanding sum owed by sanmina smacks or yindicliveness conclusion 12 For me reasons above, l (ind lrral P nas nol pruven is case on a balance ol probabililies. I lrrerelcre dismissed P's claim 73. i ordered P lo pay dosls dlRM35.aol1 |o D This lakes inld accounl a sinking um apolicanon riled by D vide Enclnsure 7, which was dismissed WI\h cosls in me cause Daled 20 November 2023 I9 4? Quay Chew Soon Judge Hugh Court af Mama, Penang CNH Dlvlsxcn NCVC 1 mum Ja am Ts: wen, kawlyn Yip vu Mmg mm mm Poh Chye (Mnssvs Aamlyn 5. Ca) inrlhe mama Nan Um W21 Luv: (Missy: Slmrmen Las a co; luvma Da1andin| 2n 9. ‘ms wssuss (0 he Tned’ pre-Inal case managemenl documem that was filed by me pames listed a mynsd av Issues. I Imnk the crux of the case can be dushlled |o one pnncxpal Issue. Name\y. wnemer the Delendam has caused me loss of RM1,357‘429.00 owed by sannuna lo the Warnlwf‘ [LE warn no a or me ‘Issues Io be Yned‘ document). And related In that, ‘whether me Devenuam can be heki hable my me sum of money nwned by Sanrmna to me Plavnm (Le. «em no 9 onne ‘Vssues Io be Tned‘ documsnlj 10 My answer Is nu‘ lor lhe loHowmg reasons: 1:) in V5 Ina rumule var F to dawn Mal n ma camed P‘: vurwnad Ian .n ma mm m1,357_az9‘ (I17 D was nm vvwy nu ma nnmnacl belween P and Szmmna‘ and me auagaa 150 days nnne venod lur mvmamln (c) P has not an-auazaa na wagaw vemody aga It Smmma. and (:1) name recovery ws nm psnmuaa 11. Here Is my explanshon. a Rgmuleness or damages 12. I agree wmh n ma! n \s we remote lor P lo dam that D had caused F‘s purporled loss m the sum RMI,357,A29 P bears me buvden Dfpmving causation and quanlum ol loss \n my opinion, P has not proven that D caused the purported loss 0| RML35‘/.429 1: In 0550 Bank (M) and V Fm/mk Markatmg Sdn and am anarnar appeal [2023] 2 MLJ 351, me Conn ml Appea\ new 7:57] We cannot nu: agma wnn Im IPPCIIJHL namng vvihulad M: ma/uy av ma awaance m we inpcar ma H»gH Cam «an rnlu ermr when n accepted the Amount amass auagamy sufivmd by ma respondent mm ms teamed ./C any had Dam avervexfwhen no such evrdenee was pnxmaa lo msxannma sum damn And no! onry mm, Ion even Where were won Vassss (wwch Lw ma mvpvoverv} sum mm o! uamaa-s wen many non rumor: tn nm Bun caused by me appenanz [1581 wa muxl ampr-as.» that s mm of ma Conlrncls Ac! 1950,35 :9! ml aamin marry pmvrdss ma: sum mnpanaauan Is not m be given Io! any mm. ormdirIc1I9.11 or dlmlpo sufhnd on amaunl unite breach V 14 I acknowiedge that D. as an employee, awes a oon\rar.1ua| my ie P as his emplnyer But I see no causation oeiween me wnlvacmal duty owed and the purponea loss olRM1,357,42Q eimsred by P 15. sanniina nas been a rneior cus|omer at P since year 21:13. sanririiria nae eonsisienny oonrrinuiea slgnfllcam revenue to P P had assigned D in soieiy lake charge at Sanmina‘s ponvoiio pertaining in “'19 aeeouriis 16 P is aware Ihal D‘s highes| qualification is only SPM (Sull Pelajaran Maiayeia). PW-Z (Customer Service Manager oi P) acknowledged mat, given D's modesl educational background‘ P should not expect Hells! periorrnariee Imm n. nespiie this kriawieege, P ieiieu to supervise D‘s wow 17 The iolluwing (ranspiied during me cmss exammahan of F"W»2 -u Ainghli mink yml And Mes Liew, an yau nware oi Dafanfianfs eueimeemm Yes Aaree inie Ii sw nevm sm leaver Yes! agree so, lugncaliy MISS Liew. |0QIcaW VLHVHIM‘: pennrmanee MI In D: mriimrea ciesery lhmlbghom his ienure wiiri me mmpany, as you agree wini me7 Because you uririia expecflhe Deienaani io BDNIVE very Hlghr neirei peflumiarlca Yes.ma1‘s why wu give cnariee, i agree So, vie ha: in be out Wlflefa very close rrieriimrena gmeariee aimiiswiiiie. c0lII:1 or now Yes And in ma avsm n Ihuv ii any iriiporianr penvoiia I510 be given |o ine Delendam, n I! ruimmhle In have samaona In nvursee riis work as weiii outrun’ Va: Now, you menhofled man in. D-iienflnn| rs asked to rienae SlV\m‘l1E‘S emiirii. yuu knL7W wne is smniim Yes It sanniirie would you agree wiin ma ni fly Snnmma is one ul your mlln cusmrriem iiym. ere iiieririiuirng during mm IS yes when aboul zuzn ermmev Tha| urns Ii hecause we have nlhev big Cuslnmall, an I| win D9007!!! no Varvguv It nie min eiisienier rm s|il| unuei we ien Ulldsrlflv «em ve. mi now Mr Choong w-I: Iiymg inaune F|airl1tlHva521D3mnm eirsieniers Ilvoughuul irie yams wnen me Delendanl I5 wurking wiui piaiiiim, I a irmrri 2015 In 2022‘ wwuld you agree 2 in : riiein cnslumers inemirig sanrriirim Vu. -gree > oxao >0» p) ox. 0) rs» n>o> 0) o 5: on: o A So‘ sanmma puMo\IL) .. Imnortunl” Yes And mg P\mn|M nu my nungnea me Devenaam m lake mm: on ms Wm Vor Snmmna nm1VnHn.mnec|ar nan ves, carved wan, 5 my 1:: charge on me rmancs van on the mum pan Wyuu are mammnmu me smvmem anangemann xx rum in Sam many‘ Nngm. so for mung u $50 an Vmpnnant aipeul m deulmg mm me cuslamav, anus av dnsl9'ae7 veg agree Boeuafly Snnmma .5 . mulunalmnal company. so mew wank! ewem samelhmg of may or svsndam mgmeven km M peflomiance. you auroe mm me? Mme. And Pu-mm was never aawnod any-am |u aurs\ Dalandlm m hindlxng me 5anmIna‘s bdlmg, igma ur magma? mu ye1 av nu nnly Nzvu ' 1a. FW4 (Exemhvs Durscior 0! F) insisted man D Is capame cl handlvng San a's pcrifoho by mmsell am that \s not name out by P5 awn pervurmance appvawsm on D, where D was assesssd In as less man samsvamory Q: average, at best 19. The (olbwmg Hansplred during the cross examination c1PWv1 “a New. comma back (0 an my 3 Mr cnwvm do yuu awree wlm ma thal o >p>o> 0 >0» > q>o>o> actuafly Sam does run have any man quaint-canon III amum-nu’ x awn Du yuu knvw what us Ms qu2|\Ih<2mnn7 sum 50, Sam has never anmeved me slandzm or exceflenl or unlslavvdmg m terms cl avnrawsal. curled’ Owvafl‘ ya: ovmm yes what no you mam by Dvernlh omau mean: Wynn lead m«ym...g av:mH ha never He never he a ;us|an average wmkefl Average worker Verna! only. amum Ami M1. Choonu yuu mum auvea wllh me man your buimass ws a<>1uaI\YIrV|P'uvm9 aver lm years «mm znw going up an «.- way‘ an-an or ml’! True, curved And yuu would um ma mm mnnpawer m am: you‘ srfl uv Agree ll‘s mean, your busmess Is good yuu need |o mm more people was And an «ms Mme, based on what you we -5 omy charge no Sanmma 3 aemum‘ <:nrvs1:l" Carma Sum a ma mfly are m And you some have arranged aeeruonai stalk |u aiiisl In Sanmiruds awuunl arr weir. em in ureegree You say Wu canmfi isare iuisegree wny you flliagnaefi Ii aepenes an in. yuiunre ml the cireru ii me pevwn re rapabie ra handle eierre, Ilvln why should we nrre aeerirbnar brine pl: can be dune eibne >o>a> co so you are saying iner Sam can do il eiene-r Yes. besea on bur rob eyaiueraen i pm ii to you lha| ynur answer now acwally uunhudims with yeur Dlflolvviamx epurursai me: i show rue you rusi mm. agtee nmisagMa7 A iaeegree“ :»o 20 us pnar peflormance is eieariy reiieeiea in me annual appraisal coneuaea by F ior yeers 2020 and 2021 where D‘: periarrnanbe was considered as ‘average”. D's supervisor had also ebecrireaiiy remarked mil in has -nb sense at urgencf and ‘response time re bed". In lacl. D's periormerrce has been Yound weniing since year 201a‘ based on me nbservauon or D‘; superior, FW»2. 21. These negenye remarks, eepecraiiy concerning D's poor rune managsmsnl, ougni |D have raise a reu flag on P 10 closely rnunrior D‘: work. More ee when ibe ponfoho handled by n is one at me main customers nfP. And mere isa we days period In submrune invnines in snbn. v ough| to have reken s\eps Io breernpi me pumorled loss 22. The renewing irensprnee during are cmss exanrrnemn or PW—2 (cusrorner Service Manager or P). “u wner ebeui your apuraisew Do you agms wi|h rue rnenung or ii s even ibwer scum’! some agree‘ sbme win be rbwer more So. some agree wnn ine more given‘ some wrii be krwsfl ves, Doflad Emlhua re none er rne uems wrii be hlghu wave, 4: rrr i ebuiu my rnei cen ynu suii remember wnei are me ilems rnar rs Iowa! some men me me srarea mere-» I rznnei remember var rnrs year 21:29, bur I an say rnei ri menlinned about me amsivflance, I1 mu be me iewesi seem in ienne afnliendznce ri wrii be ine \oweq\’7 vee wnai abmn IV! (arm: L11iwmAMmfi7 irern r 1 Awuummg wise. one ene eeuia be same sabre br lawersmre iwrii give H could be nme er Lawefl n>o>o ,> o>n>o> A Yes a: am you ranmt remamblr cleanyv A well, u can say man 014: mm. «arm can anammlmg wlll be am»: 1 2‘ 1 5 lo 2 o ves. you can look al page as. them V5 «ms ovemll rating tabls, un yuu am: lemembervmal ls |he avelall ralmg mal you haw: glven la Deiendanrl A I cannol remember very clean um I wuld say man I drd write some area lor Impmvamam «or mm In lmpmve we glve mm ernnce la impmve lnr mu weaknusui cl Bul would ynu wme me mlirvq VII ynur may’! A ves a WM| wnulfl be your ramngv wnal was your mum)’ bGVE|1‘2‘3“,WhK‘JV one ls hls7 A Should ne lower man 2 u Lowevlrlan 2 meanlvvg \avul27 nun or level 17 Please be clear Mlss Lluw. A lean ssylnsl \¢veH cl Hswlllbs underlzvel 1’? A ves a me second anu me «mm, no sense no agency, rsrspmvd urne rs bed ls by yum A. V55 Q But m lemls M me penemarlcz. Mlss Llewl wtlal l um gamer lran. yam answer .s you sale nelemanrs perlormarvoe was nal sallsladmy slnce ynu lmnen lna company back ln you 201 s. eunecn me n whn| you have oneervea A Yes a Ann M means ls. lay Haw‘ yml sald 5lnce 201: ll we weta to oumpa-a Mlss Llew n we we¢e lo mmpale your ohservallun back llv 2m 5 ind aannnre l|wl1h me awralsal rann !uv2U7D and 2D2‘l. V! I almosllhe ume merew me level olperrannanu A Yes Q: llama’ Sama7 um Llaw, Lin yml speak la lhe m:c'r A V55, igml “ Whg hgr he Plamurf was aware nl me Delendarlls lallure lo supm me invo es mlo nmm ' cTls anal 23 P clelrnslhal I| was not aware of D‘: lailure lo suhml| the lnvolcss lnle SanmIrla's cTls penal, until aller D's leslgrlallon Hind rl lmpmbable men P was unaware of me subslarmally lower Income received lrum sanrmna smoe year zms lm me lollawlng reasons. 24. Flrsl. P‘s management has access to all ma accounllng unlorrnallon. P lheralore could have easily deleaed me unmllen lnvmoes la Sanmlna vet, this puvpurledly went under the radar tor move lhan 3 years trom year 2019 to year 2022 25 Dunng cross examtnaltun. PW-1 texeeuttye Dlreclor ul P) cunftrmed that rte would monttor the revenue, the payment and the oulslandtng payment wttn respect to lhe customers rnan Jame ataa tin’? Janice Ltew tt we want to nsstgn ner we can Evevynne Mn. ts tn Meantng tt oroytoeo we give aoeess Amghh so I| means In say any at your emotayeas naye pauwmd Ind usentamv Rllevant untotayee we wttt otye access‘ a so your oompanys vale: can be um tram rm system, correct? A Yes a Sat trorn ms FM syxlem also Mr Channgt you can aetuatty aoe tne oetatts ot the piymem catteoreo am tne payment oweo by yuurcunomet etwucl’! A Culvert Q And tnts FM system ts actuatty Mm wrtt naye Access to lhls rm syslam Mr cnoonga A tt I mm to Ican out t Itnaudtblel. Q vou can .1 you wantrov A vs. a vour wtte atso can, Isn| tn A Can a A o A o A. 26 Secundy based on P‘: FM (Financtal Managemem) syslem and tne statement :2! amounts generated trteretrom every month‘ P woutd nave been aware ottna omslandlrtg sum owed by sanrntna F would atsa be aware oi the tncreastng unoata amount trorn Sanmma tron: year 2020 onwards, by lookmg at me annuat rtnanctat slalements ll mdeed P was obttytoue at the tncreastrrg outstanotno amount trom Sanmtnat P nas onty ttaett to Name 27 It IS tttogtcat tnat tne huge outstanmno sum trom sanrntna would gn undetected by F‘s management tor years tn parttcutar trom year 2020 tRM212,ao4 90), year 2021 tRM701,n51 23) ano year 2022 (RM373,A62 65). 29. The tattanmg lvansptred durtng the cross examtnation M rvw-3 1SemorAccounls Exec eott=) ‘t: In your out no 3 MM Tart you menttoneo abouuhrs rm system. oan you tntann tne Conn wmnl tttno ot tntonnatton ta wnlalned .n ma FM systemv o > :2 >0» 02- o >c>.o>o 2 D)- 0 >0 o> o>_> a) An mag, an mg mvumeuun an smpmlnl, an (M lowwwlx meme‘ on me awuumi mcmvable Awwm! payauu Iuzuum vIoswnb\e" Yes‘ mu an Inn gmamemg remed mnllers \m:\udmg me mvmcesv veg Paymem mcerved «mm customers” ves And flwau tn eemwe m system mgg 1e« me someone mess we run syxlzm wfll be aisle \a mum. lorexampleme xmxeee me Do and me ghnvnmg vrwmces nghl Hke whal you have menmmed we now M me customers Once you lay m In the FM system, he wm ug me In mrwvslhe mlnmnzlson r*e1I:rdmuIhsmvu>oer,DDand smppiw -"vow Do 1 m mi me, cmnveseee, ya: And um alw be able to 931 In know In»: much mm u awed hy me cummen, eonecn Yes AH customers. mnecfl veg wm you as me Strum Account: Exlculwa gemm me xlmemenl M awuum var every Customer every memm vea, mm I'm now «emu about Sanrmna. \e| g be speemc, Sanmma So. you know Sanmma lhu whale yea! yuu do how mum no me: gm men you wfll em Know mm much mvolnu mu -g Assuld Ilsa m Sanmma Y5: And she yau mu knew haw much wwomes remamlm unpaid by Samumz. unwed? Reiemng m we yearerm figure. ngM7 veg. our-ecu mam? Yea! em name. ya 50, n means 10 av 0u| gmee mm «er every yeav. in. 2019 ynu mu mmammg Ins and how much money wg mmed by Sammna m zuw veg And zozn Iww much money Is awed by sennune ouvva:17 ves, eoneen So on and su «am every yaav also the sgme, ngmv vgs What I liked yeu .. mu, you mfmmed the com mg: every yaavzmi you mu know whemer mm much money Is ouIs|anflIn9 v-om ma cusloman Vnvmcg unpam. 547 ms emeum Vs accumulating imoe 2019,2019 mm Vessev sum [hen Incvease, nu ma wncrsase again In 21:21 bscauu me mvmoes vemam -mp:-u, wsnt ‘I’? Ccnacmv rI:l’7 Yes Your yuar-and stalzmzm wumd have shown me: ms Increasing uvev me was, .gn | M A Hum‘ 29. ll lne we days Ilme perlod lo Involoe Sanmlna re enlreal, P should have monitored “VG snuallon IO ensure that the invololng IS done llmeouely. Propev checks and nalances ougm Io have been pul In place In ensure lnal lne lrlvuices are nol omllled and become unelanrraole Espeorally glven P‘s knowledge or D‘; sneneomrngs and poor lrme rnanagernenl P eannol olanre DI efl D lo lleunoer on ma own for more lhan 3 years from year 2019 lo year 2022 30, The com 01 Appeal rn Malayslan Arrlrne System and V Ismail Nsssruddin urn Abdul Wshah [2021] 4 MLJ 724 qumed lnal “an employer rnusl treat his employees larny. ln nrs oondua ol nrs ouerneee, and rn ms lrealrnenl ol ms employees, an employer must an responemly and rn good larllr 31. In (hls rnslanee, l apply me! lo mean lnal P should have provlded proper supevvlslan and adequate support lo D in carrylng oul hrs lop. Especrally when P was aware or D‘s weakness. D had eorrrmunroaleo me slruggla regarorng lne workload Io P Reorellaply. P mo nol seem lo errrpalnrse wI|h D's armeully. :2. Dunng oross euamlnatlcnr D leslmed as lolkms. lo Mass flu‘ apalnla saye eakap man nu tahlm zma eenlnpaa seplerrrlur 2022. mm unload ponal CTSI nu ad: lak Endk sanr paman mammla amna lern ol dalam Iyankal Plarnlrl lmluk upload all kepaoa Sanmma’> ve slapa Enclk sam mlmn7 per-oaran area Mm rneerlnp. luk lngal nraea ranllnv rraplrap (shun nun ad: Ava sabab znerk Samr menulkm kelerangan Enclk sen. rnemlnla pengarah umuk nplom lrwols kepeoa CTSI Pariah Fual lepas llu kena rnakrn hznyak, lak lmlen nanole- > o>o>o>o> 33 P argues lnal D rs llaole because ne was the only one wlro was pul in charge o1 Sanmlrléfs pomelre Eu| lheram llee lne problem elven P's knowledge or D‘: unsalrslaclory performance, P shook: have pald closer allenllon And pernape pul one ulher person an «no lob.

Pytesseract-0.3.10

WA-22NCC-274-06/2021

PLAINTIF CHONG TIN FON DEFENDAN 1. ) CHAN TECK CHONG 2. ) WONG SIEW WOON

Keywords:CONTRACT: Share sale agreement – Whether binding on parties – Whether subsequent oral agreements replaced the share sale agreement

20/11/2023

YA Puan Adlin Binti Abdul Majid

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=73b1bfbe-53c6-4ab1-9fdc-dd9e00aa1cbc&Inline=true

1 DALAM MAHKAMAH TINGGI DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN KUALA LUMPUR GUAMAN NO: WA-22NCC-274-06/2021 ANTARA CHONG TIN FON (NO. K/P: 640822-08-6479) … PLAINTIF DAN 1. CHAN TECK CHONG (NO. K/P: 600528-06-5339) 2. WONG SIEW WOON (NO. K/P: 800304-10-5211) … DEFENDAN-DEFENDAN JUDGMENT A. Introduction [1] The plaintiff is seeking outstanding amounts due, and the specific performance of a share sale agreement entered into with the defendants. [2] After a full trial, I allowed the plaintiff’s claim, and provided brief grounds for my decisions. These are the full grounds of the decision. 20/11/2023 09:41:43 WA-22NCC-274-06/2021 Kand. 192 S/N vrxc8ZTsUqf3N2eAKocvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 B. Background Facts [3] The plaintiff and the defendants are the shareholders of a property development company, Pastpresentfuture Sdn Bhd (formerly known as Poly Ritz Development Sdn Bhd) (“Company”). The plaintiff holds 34.5% of the shares in the Company (“Plaintiff’s Shares”), while the defendants and one Lee Poh Wah collectively hold 65.5% of the shares in the Company. [4] The plaintiff agreed to sell and the defendants agreed to purchase the Plaintiff’s Shares, for a consideration of RM15,000,000. A share sale agreement was executed between the plaintiff and the defendants on or about 22 April 2017 (“SSA”). The SSA was signed, but was not dated or stamped. [5] The plaintiff claimed that the consideration due under the SSA has not been fully paid. The Plaintiff’s Shares were also not transferred to the defendants. [6] This resulted in the parties commencing various legal actions against each other. [7] However, the parties had allegedly reached an agreement, which culminated in the withdrawal of the legal actions in June 2020. The plaintiff relied on an oral agreement entered into in January 2020 (“January 2020 Agreement”), which he claimed set out the terms of the settlement between the parties. The defendants relied on negotiations in June 2020 (“June 2020 Agreement”). S/N vrxc8ZTsUqf3N2eAKocvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 [8] Although the legal actions had been withdrawn, the plaintiff claimed the amounts outstanding under the SSA remain unpaid. Thus the plaintiff filed this claim, seeking the amount outstanding and specific performance of the SSA. C. Considerations and Findings The agreements [9] The main issue before the court is the status of three agreements, namely the SSA, the January 2020 Agreement and the June 2020 Agreement. Specifically, the court must determine whether: a. The SSA is binding on the parties; and b. The terms of the SSA have been superseded by the January 2020 Agreement and/or the June 2020 Agreement. [10] The SSA, which was executed to effect the sale of the Plaintiff’s Shares to the defendants, contains the following terms: a. The plaintiff agreed to sell and the defendants agreed to purchase the Plaintiff’s Shares, for a consideration of RM15,000,000; b. The amount of RM15,000,000 was to be paid in specified manners and on specified timelines, with the final payment to be made by 31 December 2018; S/N vrxc8ZTsUqf3N2eAKocvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 c. After 31 December 2018, the defendants will redeem a motor vehicle model Porsche Cayenne S, with registration number WQS 98 from the existing financier (“Motor Vehicle”), and the Motor Vehicle will be transferred to the plaintiff. The redemption paid will be treated as part payment of the consideration for the Plaintiff’s Shares; and d. Upon the execution of the SSA, the plaintiff shall execute a letter of resignation as a director of the Company and a valid instrument of transfer of the Plaintiff’s Shares in favour of the defendants. [11] Pursuant to the SSA, the plaintiff resigned as a director of the Company on 22 April 2017. [12] However, the defendants did not fully pay the sum of RM15,000,000 to the plaintiff, with the amount of RM10,000,000 remaining unpaid. The Plaintiff’s Shares were also not transferred to the defendants. [13] As a result, the parties commenced various legal actions against each other. [14] To resolve the impasse, a meeting was held in January 2020. The plaintiff claimed the meeting led to the January 2020 Agreement, an oral agreement between the parties that contains the following terms: S/N vrxc8ZTsUqf3N2eAKocvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 a. The plaintiff and the defendants agreed to withdraw their respective legal actions; b. The parties agreed to fulfil the terms of the SSA, including payment of the remaining RM10,000,000 to the plaintiff; c. The defendants will make an initial payment of RM80,000, followed by RM30,000, pending the execution of a formal agreement; and d. The defendants will pay for the plaintiff’s taxes over the Motor Vehicle, and will transfer identified properties to the defendants. [15] The defendants on the other hand, referred to negotiations entered into by the parties in June 2020, which resulted in the June 2020 Agreement. The defendants claimed that pursuant to the June 2020 Agreement, the parties had agreed to withdraw the actions they had filed against each other, and agreed that there shall be no further claims between them. The defendants also claimed that payments of amounts due under the SSA were subject to the future financial prospects of the Company. [16] All legal actions between the parties were withdrawn on 15 and 22 June 2020. S/N vrxc8ZTsUqf3N2eAKocvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 the court, the court finds that the agreement that binds the parties is the was witnessed by two advocates and solicitors. It contains terms concerning the plaintiff’s agreement to sell the Plaintiff’s Shares, and the consideration of RM15,000,000 for the purchase of the Plaintiff’s Shares. The manner of payment of the sum of RM15,000,000 is also set out in the contract, and as such, the parties are bound by its terms (see Polygram Records Sdn Bhd v Hillary Ang & 4 Ors (collectively known as “The Search”) & anor [1994] 3 CLJ 806 and Syarikat Binaan Utara Jaya v defendants had admitted to paying approximately RM5,000,000 to the Which agreement binds the parties? [17] Having considered both documentary and oral evidence before SSA. [18] The SSA was executed by the plaintiff and the defendants, and SSA. [19] In this regard, the SSA contains all the elements of a concluded Koperasi Serbaguna Sungai Glugor Bhd [2009] 1 CLJ 786). [20] The court also noted that both parties had acted on the SSA. The plaintiff. This is set out in paragraph 7.7 of the amended defence, which states that: “selepas penyempurnaan SSA, pembayaran bahagian- bahagian wang dalam jumlah keseluruhan sebanyak atau sekitar-RM4,989,075.87 RM5,132,090.44 (‘Pembayaran- Pembayaran tersebut’) telah dibuat oleh Syarikat tersebut dan/atau Winfill Construction kepada Plaintif dan/atau S/N vrxc8ZTsUqf3N2eAKocvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 penerima namaannya (nominees) dan/atau pemiutang- pemiutangnya dan/atau Pemberi-Pemberi Pinjam tersebut bagi dan untuk pihak Defendan-Defendan …” (emphasis added) [21] Nonetheless, during trial, the 1st defendant denied that the payment was made pursuant to the SSA. The 1st defendant further testified that the SSA did not exist as the Plaintiff’s Shares had not been transferred to the defendants. The 1st defendant’s testimony is inconsistent with and is an obvious departure from the defendants’ pleaded case. As such, guided by the following passage in Saadian bte Karim v Ong Ting Chai [1996] 1 LNS 96, I have treated his testimony with caution: “The deviation of the plaintiff's evidence from her pleadings on the ownership of the premises requires some consideration. It is settled law that vital and decisive issues must be pleaded (see Lee Ah Chor v Southern Bank Bhd [1991] 1 CLJ 667). The ownership of the premises in question in this case is indeed a vital and decisive issue for the plaintiff's case. It was for that reason that she had pleaded in para 7 of the statement of claim that she had rented the premises to the defendant implying that she is the owner of it. The defendant denied this paragraph and alleged that he is the rightful owner of the premises in his statement of defence. The plaintiff abandoned her pleading during the trial and agreed with the case for the defendant on the issue of the ownership of the premises. It amounts to an admission of the defendant's version of this issue thereby rendering that part of S/N vrxc8ZTsUqf3N2eAKocvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 the plaintiff pursuant to the SSA is an essential fact pleaded by the defendants. If it had been necessary to depart from the facts as pleaded, an amendment should have been made to the defence. Thus, the 1st defendant’s departure from this pleaded fact during the course of trial, 1st defendant, the court accepted the version of events in the defence that the amount of approximately RM5,000,000 was paid by the defendants to resigned from his position as a director of the Company on 22 April 2017. Shares, although the transfer of the shares was not effected by the mean that the parties knew that the SSA was binding on them. It is on this basis that the court rejected the defendants’ argument that the SSA is not the pleading irrelevant. However, there is another matter that arises from this facet of the case. Where a party, in the course of conducting his case, abandons his pleading, then his case becomes highly suspect (see PR Panikar v Chwee May Kwong [1958] MLJ 136 ). The result is that the whole case of the plaintiff will have to be viewed with caution ...” [22] The payment of approximately RM5,000,000 by the defendants to raises serious questions as to the truth of his testimony. [23] As such, after considering the defence and the testimony of the the plaintiff pursuant to the SSA. [24] The plaintiff had also taken steps to comply with the SSA. He He also executed the relevant forms for the transfer of the Plaintiff’s defendants. [25] The conduct of the parties after the execution of the SSA can only binding on the parties. S/N vrxc8ZTsUqf3N2eAKocvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 only in lieu of property in a development project known as D'Ritz Residence at Kuchai Lama (hereinafter referred to as “Property”). The parties hereby agree that the value of the property shall be at the market value to be determined by the developer of the developer of the Property, OR, in the event the Vendor is not agreeable with the value of the Property determined by the developer, the Purchasers shall pay the sum stated in this Clause 2. 1(g) in cash to the Vendor; [26] The defendants’ case is that the SSA is a conditional agreement. The court however finds that clause 2.1(g) of the SSA, which was relied on by the defendants to support their argument, does not impose any condition on the parties. [27] Clause 2.1(g) reads: “2.1 After the execution of this Agreement, the Purchase shall pay to the Vendor the Agreed Consideration in the following manners:- g) Ringgit Malaysia Three Million (RM3,000,000.00) …” [28] The clause states that the defendants shall pay the plaintiff RM3,000,000 in lieu of property in the D'Ritz Residence development (“Project”). The value of the property shall be the market value, unless the plaintiff disagrees with the value, in which event the sum of RM3,000,000 shall be paid to the plaintiff. The defendants contend that this clause is S/N vrxc8ZTsUqf3N2eAKocvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 unable to agree. The payment to be made by the defendants to the plaintiff pursuant to clause 2.1(g) is not subject to any condition. The only possible qualification is in relation to the value of the property. In any event, if the parties do not agree on the value of the property, the defendants are defendants, that the SSA is unstamped and is thus inadmissible under section 52(1)(a) of the Stamp Act 1949, will be addressed. The defendants also argued that the original copy of the SSA was not produced by the submissions, had led the court to find this objection to be disingenuous. It is to be noted that the SSA was relied on during the plaintiff’s application for summary judgment, but the defendants did not object to its to payment of stamp duty and penalty for late stamping (see Malayan Banking Bhd v Agencies Service Bureau Sdn Bhd & Ors [1982] CLJ required to pay RM3,000,000 to the plaintiff. [29] As such, the defendants’ argument that the SSA is a conditional agreement and is not binding on the parties cannot stand. [30] As a final point on the SSA, the objection raised by the plaintiff, and the photocopy should not be admitted as evidence. [31] The timing of this objection, raised only during post-trial admissibility at that point. [32] Further, the courts have admitted unstamped instruments, subject (Rep) 217 and Chai Shan Foo v Tai Ooi Cheng [2021] 1 LNS 2706). In Cit International (M) Sdn Bhd v Exquisite Square Sdn Bhd & Ors [2010] 1 LNS 1491, the High Court admitted an unstamped agreement and allowed the plaintiff’s application for summary judgment, holding that contingent upon the status of the development of the Project. The court is S/N vrxc8ZTsUqf3N2eAKocvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 the non-stamping of a document does not invalidate the document unless this goes to the root or validity of the document itself. [33] Further, the fact that the original copy of the SSA was not produced by the plaintiff does not affect the admissibility of the SSA, as the SSA has been classified as Part B of the common bundle of documents. [34] Order 34 rule 2(2) of the Rules of Court 2012 (“ROC”) provides: “(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 – … (d) the contents of the bundle of the documents referred to in subparagraph (c) shall be agreed on between all parties as far as possible and this bundle of agreed documents shall be filed by the plaintiff and marked as Part A; (e) if the parties are unable to agree on certain documents, those documents on which agreement cannot be reached shall be S/N vrxc8ZTsUqf3N2eAKocvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 having agreed to place the SSA in Part B of the common bundle of documents, which in effect means that they are not objecting to the authenticity of the SSA, and having failed to challenge the admissibility of the SSA in the course of trial, it is not open for the defendants to now object to the admissibility of the SSA, based on the fact that only a copy The status of the January 2020 Agreement and the June 2020 status of the January 2020 Agreement and the June 2020 Agreement will included in separate bundles and each such bundle shall be filed by the plaintiff and marked as follows: (i) Part B - documents where the authenticity is not disputed but the contents are disputed; (ii) Part C - documents where the authenticity and contents are disputed; …” [35] Pursuant to order 34 rule 2(e)(i) of the ROC, the defendants was produced and admitted. [36] With the above, the SSA which was admitted during the course of trial, was duly considered by this court. Agreement [37] As the court has found that the SSA is binding on the parties, the S/N vrxc8ZTsUqf3N2eAKocvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 now be considered. The court will consider the specific question of whether these agreements have superseded and replaced the SSA. [38] Both agreements are oral agreements, allegedly made during meetings held between the parties. The plaintiff, who relied on the January 2020 Agreement, claimed that by this agreement, the plaintiff and the defendants had agreed to withdraw their respective legal actions, and to fulfil the terms of the SSA, including payment of the remaining RM10,000,000 to the plaintiff. The defendants had allegedly agreed to make an initial payment of RM80,000, followed by RM30,000, pending the execution of a formal agreement. [39] It must be noted that a written agreement was never executed, and that the parties did not act on the terms of the January 2020 Agreement. [40] The defendants on the other hand relied on the June 2020 Agreement. They claimed that based on this oral agreement, the parties agreed to withdraw actions filed against each other. The actions were withdrawn on 15 and 22 June 2020. [41] Based on the evidence before this court, the court finds that the January 2020 Agreement and the June 2020 Agreement did not supersede the SSA. [42] In relation to the June 2020 Agreement, the court finds that there is insufficient evidence to show when the meeting in which the June 2020 Agreement was allegedly formed, had taken place. The assertion of the defendants on the existence of a meeting in June 2020 is not supported S/N vrxc8ZTsUqf3N2eAKocvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 actions were withdrawn in June 2020, to support their claim of the existence of the June 2020 Agreement. This approach suggests that the payments due to the plaintiff, had not been fully complied with by the time defendants claimed that in the June 2020 Agreement, the parties agreed to withdraw their legal actions against each other, and payments to be find it improbable for the plaintiff to have agreed to the withdrawal, without at least reaching some level of commitment from the defendants on the representing the parties in March and April 2020. These letters contain proposals on the withdrawal of the legal actions. This suggests that the actions were withdrawn in June 2020 pursuant to an earlier agreement, than the June 2020 Agreement. The plaintiff claimed that by the January 2020 Agreement, the parties had agreed to withdraw their respective legal actions and the defendants had agreed to pay the remaining claim is an afterthought. [43] Further, the terms of the SSA, in particular, on outstanding the June 2020 Agreement was claimed to have been entered into. The made to the plaintiff are subject to the financial status of the Company. I payment due to him under the SSA. [44] Also in evidence are letters exchanged between solicitors and not the alleged June 2020 Agreement. [45] Based on the above, the court finds the existence of the June 2020 Agreement to be improbable. [46] In relation to the January 2020 Agreement, its terms are clearer RM10,000,000 due to the plaintiff. by any evidence. Rather, the defendants relied on the fact that the legal S/N vrxc8ZTsUqf3N2eAKocvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 exchanged in March and April 2020. In these letters, references were made to the proposed withdrawal of the legal actions. The plaintiff’s solicitors also requested for a draft of the settlement agreement due to be executed between the parties. The draft agreement was however not of the view that the SSA had not been superseded by the January 2020 the defendants have breached the terms of the SSA. In particular, the defendants failed to pay the full amount of RM15,000,000 due under [47] Letters between the solicitors of the respective parties had been provided. [48] Although oral agreements have been upheld by the courts (see Achi a/p Suppiah v Devamurthy a/l Suppiah [2010] 8 MLJ 189), the determination of whether or not an oral agreement exists and is binding is highly dependent on the facts before the court. In the case of the January 2020 Agreement, the conduct of the parties in not acting in line with the terms of the agreement and the lack of sufficient documentary evidence on the terms agreed between the parties can only lead to a forgone conclusion that the terms of the oral agreement had not been finalised between the parties. In this regard, the court finds that a concluded agreement had not been formed between the parties. [49] Based on the considerations and findings as set out, the court is Agreement and June 2020 Agreement. The defendants’ breach of the SSA [50] With the finding that the SSA prevails, the court further finds that clauses (1) and (2) of the SSA. S/N vrxc8ZTsUqf3N2eAKocvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 [51] The court accepted the admission by the defendants on payment of the amount of RM5,000,000 to the plaintiff. The amount of RM10,000,000 remains outstanding. D. Decision [52] Premised on the finding that the SSA is binding on the parties and that the defendants had breached the SSA, the court allowed the plaintiff’s claim and granted the prayers sought by the plaintiff in the statement of claim, in so far as they reflect the terms of the SSA that had not been complied with. [53] Thus, the defendants were ordered to pay RM10,000,000 to the plaintiff, to pay damages in the value of the Motor Vehicle and to execute the transfer of the Plaintiff’s Shares to the defendants. Learned counsel for the plaintiff confirmed that the plaintiff did not wish to pursue the claims for payment of the plaintiff’s outstanding taxes and the delivery of a property unit at the Circo @ Pantai development. Dated 27 October 2023 - sgd - ADLIN ABDUL MAJID Judge High Court of Malaya Commercial Division (NCC6) Kuala Lumpur S/N vrxc8ZTsUqf3N2eAKocvA **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 Counsel: Plaintiff : Keppy Wong Khai Pun (together with Kelly Wong) Keppy Wong & Assoc Defendants : Selva Mookiah (together with Ungku Ikram Athari) of Messrs Selva Mookiah & Associates S/N vrxc8ZTsUqf3N2eAKocvA **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

WA-22NCVC-668-10/2016

PLAINTIF 1. ) APEX MARBLE SDN BHD 2. ) MCORE SDN BHD DEFENDAN LEONG TAT YAN

In this suit:1 The Ps seek losses arising from breach of contract, general, exemplary damages, interest, and costs from the D. 2 The D denies the claim grounded and alleged there is no legal basis or cause of action and filed a counterclaim against the Ps for damages. 3 On 30.08.2023:(a) In my considered judgment, I found the Ps had succeeded in proving their claim against the D and entered final judgment in their favour and costs of RM100,000.00 (global) to be paid within 30 days.(b) The counterclaim by D is dismissed for lack of evidence.

20/11/2023

YA Puan Hayatul Akmal binti Abdul Aziz

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=5d6cbbf0-29b1-43e7-a220-2910e66cfd73&Inline=true

WA-22NCvC-668-10/2016 1 IN THE HIGH COURT OF MALAYA IN KUALA LUMPUR 5 WILAYAH PERSEKUTUAN, MALAYSIA CIVIL SUIT NO: WA-22NCVC-668-10/2016 BETWEEN 1 APEX MARBLE SDN BHD 10 Company No: 669745-X 2 MCORE SDN BHD Company No: 599497-H …PLAINTIFFS AND LEONG TAT YAN … DEFENDANT 15 (IC No: 670730-04-5087) JUDGMENT (Enclosure 1) INTRODUCTION 20 [1] The First Plaintiff (P1) and the Second Plaintiff (P2), collectively referred to as the Ps, in this suit, are duly incorporated Malaysian companies, and the Defendant (D) is a Malaysian businessman operating in Vietnam. 25 A. The First Plaintiff / Apex Marble Sdn Bhd (P1) 1.1. 60% of shares in P1 were owned by CRG Incorporated Sdn Bhd (CRG). 1.2 CRG later became a publicly listed company named CRG Incorporated Berhad. 30 1.3 CRG is a wholly owned subsidiary of a publicly listed company, Bonia Corporation Berhad (BCB). 1.4 The defendant (D) owned 40% of shares in P1. B. The Second Plaintiff / Mcore Sdn Bhd (P2) 35 1.5 60% of shares in P2 are owned by BCB. 1.6 40% shares in P2 are owned by the D through 388 Venture Corporation Sdn Bhd (388 Venture). 1.7 The D is a director and shareholder of 388 Venture, holding 80% of the shares in 388 Venture. 40 1.8 The D is also a director of P2. 20/11/2023 15:30:52 WA-22NCVC-668-10/2016 Kand. 218 S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 2 [2] In this suit: 2.1 The Ps seek losses arising from breach of contract, general and exemplary damages, interest, and costs from the D. 45 2.2 The D denies the claim grounded on the premise that there is no legal basis or cause of action and filed a counterclaim against the Ps for damages. 2.3 On 30.08.2023: 50 (a) In my considered judgment, I found the Ps had succeeded in proving their claim against the D and entered final judgment in their favour and costs of RM100,000.00 (global) to be paid within 30 days. (b) The counterclaim by D is dismissed with costs for lack of merit 55 and wanting in compelling evidence. 2.4 Aggrieved, the defendant filed this appeal against my decision, and these are my reasons: 60 BRIEF FACTS: [3] Parties have filed agreed facts, and in narrating the brief facts, I will also refer to a series of correspondences and documents available before me. A. The Joint Venture 65 3.1 In early 2000, the Bonia Group of Companies (Bonia Group) started selling goods to D in Vietnam through his nominee, Van Thuy Hanh (Hanh). S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 3 3.2 Sometime at the end of 2002: 70 (a) The D approached BCB to propose a joint venture (JV). (b) The Bonia Group would sell their products to the D's nominee in Vietnam. (c) They would share in the revenue from the sales. (d) The D would be exclusively responsible for all operational 75 aspects of the Vietnam business. 3.3 It was agreed with further negotiations to refine the JV. B. Implementation of the JV The First Plaintiff / Apex Marble Sdn Bhd (P1) 80 3.4 P1 was incorporated on 18.10.2004: (a) Its original purpose was to market and distribute specific Bonia Group licensed brand menswear apparel (including Valentino Rudy, Carven, Saville Row, John Langford, Ungaro, Santa Barbara, and Polo Racquet Club). 85 (b) By 2009, P1 had stopped undertaking this business. (c) In mid-2009, P2 injected its Carlo Rino business into P1. (d) Under the JV, on 28.09.2009, P1 and Pham Thi Minh Phuong (Phuong) entered into a Non-exclusive Dealership Agreement, where Phuong was once again merely the D's nominee acting 90 on his instructions. (e) On 26.04.2010, the D took up 40% of P1's shares. The Second Plaintiff / Mcore Sdn Bhd (P2) 3.5 Under the JV, P2 was incorporated on 22.11.2002, with the D 95 holding a 40% stake as a shareholder and director (5.2.2003) through 388 Venture: S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 4 (a) P2 sold the Bonia Group's products under the Bonia, Sembonia, Bonia Uomo and Carlo Rino brands. (b) P2 commenced business with D via a Non-exclusive 100 Dealership Agreement (09.12.2003) between P2 and D’s nominee, Hanh (L.141, pp.3-23). (c) On 05.05.2005, D replaced Hanh with another nominee, Pham Thi Minh Phuong (Phuong), via a new Non-Exclusive Dealership Agreement with P2 (L.141, pp.26-45). 105 (d) On 28.09.2009, the Ps entered into separate Non-Exclusive Dealership Agreements with Phuong because Phuong was the D's nominee acting on his instructions. (e) The Agreements appointed Phuong as a non-exclusive dealer to sell and market the Bonia Group's products in Vietnam 110 (L.141, pp.88-107, pp.153-170) [4] In a nutshell, the present case revolves on the issue of: 4.1 Non-Exclusive Dealership Agreement (09.12.2003) between P2 and the purported nominee of the defendant (Van Thuy Hanh, which was 115 subsequently replaced with Pham Thi Minh Phuong (05.05.2005) in a new Non-Exclusive Dealership Agreements that incorporates an automatic renewal clause unless it is expressly terminated. This is to promote and sell Bonia Group products in Vietnam. 120 4.2 The D: (a) Denies the alleged agency/nominee relationship in these Non- Exclusive Dealership Agreements. (b) The Ps pointed out five pertinent circumstances to support their arguments: 125 (i) The 2008 Guarantee signed by the D that recited the position. (ii) The negotiation on behalf of Phuong for compensation in the buy- out episode. (iii) The D’s involvement in Phuong’s operation in Vietnam. S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 5 (iv) The D’s director’s fee paid in Vietnam from Phuong’s Vietnam 130 operations and (v) The use of 388group.com and/or 388group.com.vn domain name, where the D and Phuong operated from a 388 Joint Stock Company. 4.3 In pursuit of this venture: 135 (a) The D had acquired a 40% equity stake in P1. (b) Was a duly appointed director in P2. (c) As a director of the company, it is trite law that he owes fiduciary duties and must at all times act in the best interest of the company that he sits in and, accordingly, in law, must avoid any 140 potential conflict in interest as mandated by common law and the Companies Act 1965/2016. 4.4 The Ps alleged that the D, by himself and/or through his alleged nominee Phuong, breached the express and/or implied terms of the 145 agreements when: (i) They failed to furnish the required financial records of the operation to the Ps as agreed, (ii) They failed to remit the sums to the Ps. (iii) They prevented the Ps from retrieving sales and stock data. 150 (iv) They denied access to the Goldsoft Consignment and Inventories system (server disconnected), and (v) They removed Ps’ representatives from the Vietnam office. 4.5 Several letters of demand to remedy the defaults were ignored, 155 leading to the termination of the Agreements (21.06.2011). An attempt to subsequently conduct inventory and stock take was denied. The plaintiffs’ claims for breach of contract, general damages, exemplary damages, and costs are as set out in the SoC. 160 [5] On 18.03.2021, the plaintiffs filed the present suit against the D, the prayers stated in the Statement of Claim (SoC). 165 S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 6 [6] The witnesses at the trial are as follows: - (a) Plaintiffs’ witnesses: PW1: Datuk Chiang Heng Kieng (Director of BCB) PW2: Dato’ Sri Chiang Fong Yee (Group MD CRG/Director 170 (Non-Independent Non-Executive) of BCB PW3: Ong Boon Huat (Exec. Director of CRG) (b) Defendant’s witnesses: DW1: Leong Tat Yan (the defendant) 175 DW2: Van Thuy Hanh (Vietnamese businesswoman) DW3: Lu Ngoc Da Lan (Chief Accountant to Phuong) DW4: Hua Thi Ngoc Ha (Employee of Phuong) DW5: Vu Thi Thu Hien (Employee of Phuong) DW6: Nguyen Phi Giao (Employee of Phuong) 180 DW7: Pham Thi Minh Phuong (Vietnamese businesswoman) THE PLAINITIFFs’ CASE [7] I observed the Ps' arguments (L.202 & L.206) in canvassing and 185 ventilating their position as follows: 7.1 The Ps argued that: (a) Phuong is, in the circumstances of the case, undoubtedly the D’s agent in the foregoing transactions with the Ps (see s.135 Contracts Act 1950). 190 (b) As the principal to Phuong, the D is the actual contracting party therein, and action can be taken against him (see s.179 Contracts Act 1950). (c) Notice(s) issued to Phuong shall be as if it had been given to the D (see s.182 Contracts Act 1950). 195 (d) As an officer and director of P2, the D owed fiduciary duties under section 132 of the Companies Act 1965 (at the time). He is to act in the best interest of the company at all times. (e) Zaharen bin Hj Zakaria v Redmax Sdn Bhd & other appeals [2016] 5 MLJ 91, CA was cited that ruled a director and an 200 employee must discharge their responsibilities in a manner S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 7 that befits the interest of the company and not in a way, detrimental to the interest of the company. (f) Avel Consultants Sdn Bhd & Anor v Mohamed Zain Yusof & Ors [1985] 2 MLJ 209, SC was also cited that as a fiduciary 205 in law, a director is precluded from acting in a manner which brings a conflict of interest between him and the company. 7.2 The Ps raised specific preliminary legal and evidentiary objections set out in (L.202, annexures 2-5, pp.60-75) concerning the Ds at the 210 trial. My observation: From the evidence at the trial, I am inclined to believe the appropriately set out arguments of the Ps on these objections. It is 215 for the D to conduct his defence to refute those objections and to tilt the scale of evidence concerning the following issues, which I find unconvincing. Rules are meant to be complied with saved in justifiable circumstances. Consequently, I allowed the objection against the D in the following sub-paragraphs (a)-(d): 220 (a) Pleading Objections (L.202, annexure 2, pp.60-62): Raising non-pleaded issues. The Ps pray that they be disallowed. (b) Hearsay Objections (L.202, annexure 3, pp.63-65): Hearsay 225 evidence. The Ps pray that several hearsay evidence of the D and his witnesses be disallowed. (c) Failure to cross-examine (L.202, annexure 4, pp.66-68): The Ps witnesses were not cross-examined on certain parts of the 230 D’s case that Phuong had testified. The Ps pray that her evidence in this regard must be disallowed. (d) Part C Documents (L.202, annexure 5, pp.69-75): The D produced three recordings and a transcript which were of 235 S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 8 questionable origin (IDD1 and IDD2). The Ps pray that they should not be admitted for reasons stated in the annexure. 7.3 The Ps argued: 240 (a) The Ps argued that Hanh and Phuong were, in fact, the nominees who fronted and carried out the instructions and business affairs of the D in Vietnam. In establishing this fact, the Ps relied on the following evidence: 245 (i) The evidence of PW1 (BCB’s former MD) testified that the business transaction with D started in 2000, who began dealing in Bonia’s products in Vietnam on a cash-and-carry basis. The D later met PW1, seeking a favourable discount on bulk 250 purchases to develop Bonia’s business in Vietnam. This led to a proposal by the D for a proposed joint venture (JV), leading to a site visit in Vietnam. During this visit to Vietnam, PW1 was introduced to Hanh, D's 255 girlfriend (the retail manager of D's company in Vietnam). The D informed PW that he conducted his business in Vietnam through Hanh. After a thorough deliberation between them, it was agreed that (1) 260 the Bonia Group would supply Bonia’s products to the D’s nominee (Hanh), who would be under the direct supervision of the D, (2) the D would be exclusively responsible for all operational aspects of the business in Vietnam, (3) the parties would share the profits from the proceeds of the sale after the usual deduction of operational costs 265 and expenses, and capital expenditure (PW1, WS L.168 QA 4-9). The D objected to the evidence of PW1, saying that the Ps did not plead these. I, however, agree with the Ps that 270 these constitute evidence. It is clear that O.18 r.7(1) RC 2012 only requires material facts, not evidence, to be pleaded. It has always been the Ps case that Hanh and S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 9 Phuong were the nominees of the D. I find no basis for the D’s objection. RHB Bank Berhad v Dong Haeng 275 Industries Sdn Bhd [2002] MLJU 657, HC; and YKL Engineering Sdn Bhd v Sungei Kahang Palm Oil Sdn Bhd & Anor [2022] 6 MLJ, FC was cited in support that only material facts in a summary form need to be pleaded and not evidence. It has been discovered that this is the 280 first time the D objects to this issue. It was never raised at the trial. As ruled by the Supreme Court in Superintendent of Lands and Survey, 4th Division & Anor v Hamit B. Matusin & 6 Ors [1994] 3 MLJ 185, SC, it is too late to raise the objection now and take the other party by 285 surprise. The D should have objected right there and then at the trial. (ii) The evidence of PW1 (BCB’s former MD) above was corroborated by the evidence of PW2 (director of BCB and Group MD of CRG). 290 (see L.169, PW2’s WS, Q&A 9-10) and Notes of Evidence (NOE). (iii) The Ps also argued that the D had: (1) had introduced Hanh as his nominee in Vietnam, (2) Hanh was readily interchangeable with Phuong in 2005 by the D. 295 (iv) In his email (18.11.2005) to PW3, the D referred to himself and his nominee Hanh as “Leong & Partners”. (L.142 pp.33-35) (v) When Phuong was appointed under the Non-Exclusive Dealership 300 Agreements with the Ps, she executed the Agreements as instructed by the D. Even though she claimed to have discussed possible amendments, no evidence to support that argument was produced. It was merely a bare assertion. 305 The D objected to the evidence of PW2 (director of BCB and Group MD of CRG) corroborating the evidence of PW1, as the events transpired before PW2’s time and constituted hearsay S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 10 evidence. The Ps argued that contemporaneous had been adduced (L.167, pp.3-10; L.142, pg.213, 215-217). PW3 (ED of CRG 310 and former Senior Corporate Finance Manager of BCB) on the disconnection of the server to Malaysia are grounded on letters by BCB, CRG, P1 and P2 (L.167, pp.3-5, 6-7, 8-10; L.142, pg.17-20, 21- 24, 215-217). These are not hearsay evidence. I find no merits in this objection. 315 (b) Under the proposed JV, P2 was established on 22.11.2002. The D was appointed as a director on 5.2.2003. The D acquired a 40% equity stake in P2 through his company in Vietnam, 388 Venture, by capitalising his business assets in exchange for the 320 paid-up shares of P2. Effectively, P2 acquired the D’s Vietnam’s retail business. (L.142, pp.8-9) (c) The D claimed that he had purchased the Vietnam business from Hanh, but no compelling evidence was produced in support 325 thereof. Throughout the trial, he could not prove that he owned any business in Vietnam. Even Hanh could not corroborate the D’s position. In his email to PW3 on 18.11.2005, he said, “We opted to divest 60% of our interest to Bonia Corp and come to a JV several years ago. “We” clearly refer to himself and Hanh (the 330 nominee) (L.142, pp.33-35). (d) Before the execution of the Agreements (Non-Exclusive Dealership Agreements) on 19.05.2008) by Phuong and P2, the D had 20.03.2008 executed a letter of Guarantee to guarantee 335 the performance of Phuong unconditionally and to provide an indemnity to P2 (L.141, pp.66-85). The D never denied he executed the Guarantee. PW2 (director of BCB and Group MD S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 11 of CRG) gave evidence that the Guarantee was required because (1) there was an increase in trading volume and stocks 340 in Vietnam, (2) the D and Phuong had slowed down the remittance of net sales proceeds to Malaysia causing an accumulation of substantial outstanding amount, (3) P2’s stocks and sales proceeds were kept and controlled by D and Phuong in Vietnam, and (4) they made withdrawals unknown to nor 345 consented to by P2. D had requested P2 to enter into the Agreements, as seen in the said Guarantee. The D undertook to indemnity on a full indemnity basis against all losses, damages, costs, expenses or otherwise 350 which may be incurred by the principal because of any default on the part of Phuong. It was argued that D had no reason to undertake these heavy financial obligations if D was merely Phuong’s introducer to the Ps. He had to because he was Phuong's principal. (Letter of Guarantee, L. 142, pp.10-12) 355 (e) An email on 23.07.2009 by Phuong’s staff (Tuong Vi) to PW3 concerning the new Non-Exclusive Dealership Agreement that shows Phuong and Hanh were easily exchangeable. (L.142 pg 55) 360 (f) The D was heavily invested in Phuong’s daily operations: (i) The D frequently remitted payments from Phuong to the Ps. (ii) Emails addressed to Phuong were answered by the D. (iii) The D is fully authoritative over Phuong and other employees in 365 Vietnam's retail operations. (iv) The D determined the sub-dealers' commission rates. (vi) The D secured counters and outlets and negotiated rent rates. (vii) The D decides on advertising and promotional activities for the Vietnam retail business. 370 (viii) The D makes administrative determinations on workforce issues in Vietnam. S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 12 (ix) When details for unremitted commissions were requested, D and not Phuong addressed the issue. (x) the D approved four volumes: the Ps payment vouchers, debit 375 advice, credit advice, and receipt vouchers. (xi) Even Phuong, in her evidence, supports the position that the D (together with Alex and Liew) controlled most of the dealership activities in Vietnam. 380 The D objected to the foregoing evidence by saying that the Ps did not plead these. Similarly, as I have observed in paragraph 7.3(a)(i) above, these constitute evidence. It is clear that O.18 r.7(1) RC 2012 only requires material facts, not evidence, to be pleaded. It has always been the Ps case that Hanh and Phuong 385 were the nominees of the D. I find no basis for this objection by the D. There was no objection raised at the trial. To do it now would be to take the other party by surprise. (g) The D and all the other staff of the Vietnam operation use the 390 “388group” domain name (388group.com and/or 388group.com.vn), which is related to the Vietnam company that the D and Phuong operated from (388 Joint Stock Company). Although Hanh and Phuong are supposedly separate businesswomen, they use the domain name “388group.com”, owned by the D in Malaysia. 395 (L.142, pp. 26-30, 36-39, 41-45, 49, 52-59, 62-63, 70, 73-77, 81-87, 90, 94, 95, 100, 117, 126, 130,133-135,138-142,146-147,150-151,167,168-172, 175-176,201) (h) It is not disputed that D received his directorship fees via debit notes issued by Phuong at his request. That was the extent of 400 his control in the Vietnam retail operations. (i) Phuong’s position as a nominee is further magnified by the fact that D took an active role in bargaining to secure Phuong’s compensation during the buy-out negotiations with BCB and 405 CRG. This buy-out (the D’s 40% equity stake in the Ps) was S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 13 caused by the many breaches committed by the D and Phuong as set out in paragraph 47 of the SoC. When the Ps opted not to compensate Phuong, the D said he would pay Phuong’s compensation himself. It must be noted that Phuong is 410 supposedly the principal in the Agreements, and she sought no compensation, yet he takes it upon himself to ask for it. It raises questions. It has to be that Phuong is the nominee. No evidence was tendered at the trial to show that Phuong had asked D to seek compensation for the significant losses that she was 415 supposed to have suffered. It reflects adversely on the credibility of their evidence at the trial, particularly the evidence of the D. (L.142, pg.216; L.178, Q&A 4, para 10, L.198 Q&A 12, para7) My observations at the trial: 420 (i) In my considered judgment, taking the facts established at the trial in the foregoing paragraphs (a)-(i) in its totality allows me to come to a safe conclusion that D was more than just coordinating the retail business in Vietnam, he was to state the obvious from this evidence having the 425 authoritative control of the retail business through his nominee, first Hanh, and followed by Phuong. (ii) To hold otherwise would not accord with the facts in the above paragraphs (a)-(i). The totality of the evidence led me to arrive at this conclusion. (iii) I also find the evasive demeanour of the D at the trial had adversely 430 impacted the credibility of his evidence. This was appropriately captured by the Ps in Annexure 6 hereof. (L.202 pg 76-83). 7.4 It is the Ps case that the D and Phuong in which I agree that they colluded with each other to breach the Agreement with the Ps: 435 (a) Failure to provide financial records promptly. This is well recorded in the P's contemporaneous correspondence. It is a breach of Clause 7.3(b) of the Agreements that the dealer shall further furnish daily evidence of receipts of proof of sales and 440 S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 14 bank in slips no later than the next working day from the day the said bank-in slip is issued. (L.142, pp.14-15, 17-20, 21-24, 93, 156): (i) There was no response from D or Phuong to any of the letters issued 445 to them, which can be taken as a tacit admission of the truth in those letters. The Ps cited in support, Wong Hin Leong David v Noorazman Bin Adnan [1995] 3 MLJ 283, CA ruled that the party receiving the letter must answer it if he means to dispute the facts. The Federal Court in Dream Property Sdn Bhd v Atlas Housing 450 Sdn Bhd [2015] 2 CLJ 453, FC said that it is in the ordinary nature of a businessman to immediately refute any proposition injurious to him contained in the letter and not to let it stand. (ii) The Ps also argued that in the context of this case, a term can be 455 implied where it is necessary to give business efficacy where the term is evident that the financial records should be furnished promptly. The Federal Court ruling in Akitek Tenggara Sdn Bhd v Mid Valley City Sdn Bhd [2007] 5 MLJ 697, FC was cited that an implication of this nature can be made in two situations: (1) where it 460 is necessary to give business efficacy to the contract, and (2) where the term implied represents the obvious, but unexpressed, intention of the parties. (iii) Those financial records are being withheld by D and Phuong. The 465 Ps would be grappling in the dark on the state of affairs and the financial aspects of the retail business in Vietnam. Clause 7.3(a) of the Agreements requires that sales proceeds that exceed the pre- determined cash float are required to be remitted to the Ps immediately. But that cannot be ascertained without the necessary 470 financial records. Clause 16.2 says that the Ps shall have absolute access to the Dealer’s books of accounts. (L.141, pp.93, 97-98 156, 95, 158, 160-161) (iv) D and Phuong had breached Clause 7.3(b) of the Agreements. 475 (b) The D and Phuong failed to remit sums above the pre- determined cash float of USD200,000 for the Ps: (i) The auditor found that D and Phuong, in breach, had retained a cash 480 float of USD 565,194.49 in Vietnam. A request by the board of directors of BCB for D and Phuong to remit the excess money, together with handing over the cash books every week, was ignored. (L.142, pg.13) 485 (ii) In March of 2011, the Ps discovered that D and Phuong had failed to remit USD365,088.60, which should have been remitted between 7.8.2009 and 21.5.2010. Despite not remitting the money, D and S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 15 Phuong deducted the sum from the Ps cash books. When queried, the D quickly remitted USD 367,259.68 in several tranches (4th, 8th, 490 and 10th March 2011) to the Ps. It is clear evidence of impropriety. In a meeting on 1.6.2011 in Vietnam, Da Lan and Tuong Vi admitted to PW3 (ED of CRG and former Senior Corporate Finance Manager of BCB) that they failed to remit the money, though it had been deducted from the Ps cash book. This evidently breaches Clause 495 7.3(a) of the Agreements. (L.167, pg.4; L.193 PW3’s WS, Q7A 8) (c) The D and Phuong severed the server communication with 500 Malaysia. They denied access to the Goldsoft System (designed to track consignment stock levels) from 14.05.2011 onwards, preventing the Ps from retrieving the sales and stock data in Vietnam. There was no response from the d or Phuong. In his email (13.06.2011), the D admitted that the server had 505 been disconnected but claimed it had nothing to do with him. He elected not to rectify the situation with the server. Without access to the Goldsoft System, the Ps could not track the stock level in Vietnam. This breaches Clause 9.1.10 of the Agreements for failing to keep true and accurate sales and 510 inventory records of the outlets and/or the implied terms of the Agreements. (L.167, pg.4, pg.6, L.142, pp.17-20, pg.217) 515 (d) BCB had two Representatives in the Vietnam office to assist D with the retail business (Alex & Liew). They were removed by D and Phuong on 16.5.2011, as explained by PW2 (director of BCB and Group MD of CRG). A letter on 15.06.20111 to the D sought an explanation but was ignored. In his email dated 520 30.05.2011, the D admitted that Phuong had removed them. This breaches Clauses 7.2(a) and 9.1.14 of the Agreements (on S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 16 the requirements for authorised representatives in the retail office. (L.169, pg.24, Q&A 34(ii); L.142, pp.17,1, 2139) 525 In my observation at the trial: (i) These alleged breaches in the foregoing by D and Phuong had been satisfactorily proven. (ii) The explanation afforded by D and his witnesses is devoid of merits 530 and unconvincing. (iii) It is apparent from the evidence that the actions of the D and Phuong were deliberate and calculated in their resulting consequences. (iv) Evidently, as a director of P2, he had breached his fiduciary duties. There are sufficient materials before me to conclude that his interest 535 has been brought into conflict with the interest of the company he is bound to protect. His breach of duty adversely impacted the Ps and, by law, must account for it. 540 (e) The D had objected to the admissibility of BCB’s without prejudice letters from being admitted into evidence at the trial. However, as pointed out by the Ps: (i) I had already considered this issue before the trial and admitted the without prejudice documents in evidence. 545 (ii) After considering the parties' submissions on the issue, on 27.09.2023, I allowed these documents to give the Court a more apparent appreciation of the facts between the parties. (iii) The D is estopped from attempting to relitigate this issue. (iv) See Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd 550 [1995] 3 MLJ 189, SC; and Hartcon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1996] 2 MLJ 57, CA. 7.5 The D: (a) Seek to invoke section 114(g) of the Evidence Act 1950 555 (adverse inference) for the failure by the Ps to call CSS, Alex and Liew as witnesses for the Ps: (i) The Ps argue that CSS, Alex and Liew do not feature in their case. They were key figures in D’s defence, yet he elected not to call them to offer evidence to establish his claim of the facts. 560 (ii) It is misguided for the D to attempt to reverse his burden of proof and place it on the Ps. Nothing can stop the D from calling them to offer evidence if he thinks they are crucial. S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 17 (iii) Section 114(g) only applies when there is withholding or suppression of evidence, but not for failing to produce evidence: See Siew Yoke 565 Keong v PP [2013] 4 CLJ 149, FC. (iv) The Ps pointed out that the D relied heavily on CSS to establish his defence, which supposedly would supply the allegedly crucial evidence on the background to the formation of the JV and the position of Hanh and Phuong. It was also pointed out that CSS was 570 mentioned 35 times in the D’s Amended Defence and 41 times in his Witness Statement (DWS). If at all, section 114(g) should be invoked against the D for his failure to call CSS. (v) By failing to call CSS, the D cannot provide any basis for his claim of having a personal JV arrangement with the Bonia Group and the 575 position of Hanh and Phuong. It becomes merely speculative with unfounded assertions in his defence. I find this argument to be without merit. The submission by the D on section 114(g) concerning the facts above will not stand legal scrutiny. 580 (b) The D argues that the Ps are prohibited from introducing evidence that Hanh and Phuong are the D’s nominee on account of sections 91 and 92 of the Evidence Act 1950: (i) The D submitted that Ps cannot introduce evidence to contradict, 585 vary, add to, or subtract from the Agreements. (ii) The Ps took the position that they never disputed the written terms of the Agreements. That is not the issue. What they are saying is that Hanh and Phuong are nominees for the D. In this instance, at the trial, the D (1) never objected to the admissibility of the evidence at 590 the trial, (2) Sections 91 and 92 do not apply in the circumstances, and (3) the evidence is admissible under section 92(f). (iii) In his evidence (DW1), the D expressly disputed in his Amended defence that Phuong was his nominee contrary to the Ps case, rendering it an issue to be tried. At the trial, the D led evidence to 595 disprove the claim that Phuong was his nominee. (vi) He, therefore, had waived his objection. The proper time to object was when the evidence was introduced, not at this juncture: Annie Solomon v BHMF Realty Sdn Bhd & Ors [2014] 1 MLJ, 57, HC. 600 In the circumstances of the case, I find the D’s submissions on the issue to be overreaching. There is no error in the Ps adducing evidence to establish that Phuong was the nominee of the D. The terms of the Agreements are not in dispute, nor are the Agreements. There is no attempt to vary or contradict the Agreements. 605 S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 18 7.6 In the Ps final argument: (a) The Ps no longer pursue the tort of inducement of breach of contract against the D, leaving only an action for breach of contract and breach of fiduciary duties (applicable to P2 as he is a director). 610 (b) Contrary to the position taken by the D, the Ps position is that the D’s JV was with BCB, as explained at the trial. While the Ps dealings post-incorporation was under the understanding between BCB and the D, their contractual relationship for the sale of the products was with the D. 615 (b) The D’s arguments that he did not receive the letters (15.06.2011 and 21.06.2011) that were not copied to him were untenable, as it was served on his nominee (s.182 Contracts Act 1950). 620 (c) The Ps argued that the D did not adduce any evidence other than claiming that the criminal investigation against Phuong by the Vietnamese authorities ended up with no further action. It is purely a bare assertion. 625 I find this issue by the D does not adversely impact this proceeding. It is two separate issues, one civil and one criminal, procedurally distinct from each other and carries different burden. One is in a foreign jurisdiction (Vietnam), while the present proceeding is in local jurisdiction. I am only concerned with the current proceeding before me. 630 (d) In response to D’s assertion that the evidence of PW1 (BCB’s former MD PW2 (director of BCB and Group MD of CRG), PW2 (director of BCB and Group MD of CRG), and PW3 (ED of CRG and former Senior Corporate Finance Manager of BCB) should 635 be taken with caution as they are not disinterested parties. S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 19 However, no plausible evidence was produced except conjectures to establish this accusation. As mere bare assertions, it is trite law that there will be no evidential foundation to support this argument by the D. 640 7.7 Occasioned by the breaches and wrongful conduct of the D, the Ps claims to have suffered losses: (a) P1: Unremitted sales proceeds: RM946,496.39. (L.146, pp.76-99) 645 (b) P2: Unremitted sales proceeds: RM2,249,751.08 (L.126, pg.47, para 56; Enclosure 146, pp.100-151) The D had offered no evidence to contest or contradict these figures. 650 (c) Unreturned consignment stocks after the termination of the Agreements: (i) P1: RM3,303,671.00 (L. 112, pg.47, para 55) 655 Phuong admitted to holding on to the consignment stocks. She sold most of the stocks but did not remit the sales proceeds. (L.157, pg.70, lines 1-19). 660 (ii) P2: RM14,871,167.03 (L.112, pg.47, para 57). Phuong admitted to holding on to the consignment stocks. She sold most of the stocks but did not remit the sales proceeds. 665 (L.194, pg.70, lines 1-19). In the circumstances, the Ps prays for an order in terms of its prayers in the SoC with costs. 670 675 S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 20 THE DEFENDANT’S CASE [8] I observed the Ds (l.200 AND l.204) in canvassing and ventilating for their defence as follows: 8.1 The D version of the facts are as follows: 680 (a) The D met with the big boss of the Bonia group of Company (BGC), Chiang Sang Sem (CSS), where they supposedly entered into an oral JV agreement to carry out business in Vietnam. He claimed that CSS wanted him to assist in running and expanding BGC’s business in Vietnam. At this time, the Ps 685 were not yet a subsidiary or a member of BGC. (b) The oral JV arrangement with CSS allegedly required the D to act as a local intermediary and co-ordinator for BGC in Vietnam. He was also responsible for scouting for Vietnamese businesspersons to act as dealers for BGC and to assist in 690 resolving disputes or issues between them. In this instance, the D introduced Phuong (DW7) and her brother, Phan Ngoc Binh. (c) In the seven agreements that D arranged, he was only asked to execute a letter of guarantee for the agreement involving Phuong (19.05.2008). This letter of Guarantee was witnessed 695 by CSS (L.142, pp.10-12). (d) The JV arrangement went smoothly until 2011, when disputes over the retail business in Vietnam arose between BGC’s management and the D. My observation at the trial: 700 (i) CSS was never called to offer evidence to corroborate the facts above as alleged by the D. Without any supporting evidence, the allegations of facts on CSS are rendered unfounded. It has no foundation. S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 21 (ii) In the circumstances, in my considered judgment, I place no weight on these allegations. 705 (iii) As rightly pointed out by the Ps, he should have been called since CSS is crucial to establish the allegation of facts by the D. If the Ps elected not to call CSS because he is not critical to the Ps' case, then if needed, there is nothing to prevent the D from calling CSS to support the D’s facts. That was not done. 710 8.2 The D, in his submissions, raised the issue of the admissibility of BCBs without prejudice letters that had already been ruled admissible for the Court after considering the submissions of both parties on the matter on 27.09.2023. The D cannot be allowed to 715 relitigate the issue at this juncture. 8.3 The D raised the issue of the supposed criminal investigation of Phuong (DW7) by the authorities in Vietnam after the criminal complaint lodged by the Ps. It was alleged that after the failure of this criminal complaint, the Ps took out three civil actions against the 720 D in the Kuala Lumpur High Court in (1) 22NCVC-678-2011, (2) 22NCVC-49-01/2012, and (3) 22NCVC-586-07/2012. At the filing of the present suit, none of the three earlier cases had been withdrawn or discontinued by the Ps. As I had observed: 725 (i) The criminal matter in Vietnam is not the concern of this present proceeding. (ii) As for the earlier three civil suits, the D failed to adduce any evidence that the Ps did not have the genuine purpose of seeking redress against the D, nor has he suffered any damage from it. 730 (iii) The first two suits could not be served on the D, and all three cases were discontinued well before the present suit was filed. (iv) As pointed out by the Ps, the D failed to meet the requirements for the tort of abuse of process. (v) I find the issue of the previous three civil suits inconsequential to the 735 present proceedings. S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 22 8.4 The D argued that the evidence PW1 (BCB’s former MD PW2 (director of BCB and Group MD of CRG), PW2 (director of BCB and Group MD of CRG), and PW3 (ED of CRG and former Senior 740 Corporate Finance Manager of BCB) must be treated with caution as they are an interested parties in the proceedings. In my judgment, casting adverse aspersions on the credibility of these witnesses with speculative assertions or conjectures is not good enough. As I 745 have said, no plausible evidence or compelling evidence was adduced but for these speculations. It is trite the Court will not act on speculations. There is no reason for the Court not to accept their evidence. 750 8.5 The D argued the issue of un-pleaded facts by the Ps being raised at the trial, (1) PW1 being introduced to Hanh (DW2) as the D’s girlfriend, (2) PW2’s evidence that Phuong (DW7) was the D’s nominee in Vietnam, and (3) PW3’s allegation that Phuong was introduced by the D as his nominee during a visit at the HCMC in 755 2005. As I had earlier observed, I agree with the submissions of the Ps that these issues constitute evidence. It is clear that O.18 r.7(1) RC 2012 only requires material facts, not evidence, to be pleaded. It has always been the Ps case that Hanh and Phuong were the nominees of the D. I find no basis for this objection 760 by the D. There was no objection raised at the trial. To do it now would be to take the other party by surprise and is unfair. 8.6 The D argued that the allegation of Phuong (DW7) being his nominee is unsupported by any documentary evidence. As a matter 765 of fact, (1) the Agreements clearly stated that Phuong was the appointed dealer in Vietnam and not the nominee of the D, (2) the letter of Guarantee (20.03.2009) described her as a dealer, (3) various letter by the Ps on the waiver of fee payment refers to he as the dealer, (4) the BBC's without prejudice letters do not refer to her 770 as the nominee of the D, (5) there no reference to any trust deed S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 23 between Phuong and the D on that position, (6) the Annual Reports of BCB and P2, does not report on director related transactions. In the circumstances, D further argues that section 91 and 92 of the Evidence Act 1950 applies to deny any attempt by the Ps to vary or 775 contradict the Agreements involving Phuong as a dealer and not a nominee of the D. I found the arguments of the Ps compelling to negate the D’s arguments above: (i) PW2 (director of BCB and Group MD of CRG) testified at the trial that referencing Phuong as a dealer in all the Agreements and waiver letters 780 was structured by the D, who had pre-arranged all the documents. (ii) In the letter of Guarantee, D clearly stated that, at his request, the Agreement was executed with Phuong. This indicated his position as a principal in the transaction. (iii) BCB and CRG are major shareholders in the Ps. PW2 is a director of the 785 Ps BCB and CRG who had executed several letters addressed and copied to the D. What allegation made by BCB equally applies to the Ps. (iv) PW2 explained that there was no need for the Annual Reports to declare director-related transactions since all dealings were through the D’s nominee (Phuong). 790 (v) Even the D agreed that there was no need for the Ps Annual report to report this. 8.7 The D argued that the alleged five indicators in the Ps submissions do not establish Phuong as the D’s nominee: 795 (a) The letter of Guarantee clearly says that Phuong was a dealer. The D’s obligations under the Guarantee were in his capacity as a guarantor, not as a principal. The D only guaranteed one of the Agreements (2008), not all. The Ps argued that the Guarantee in 2008 clearly says that the dealership 800 agreement with Phuong was entered at the request of the D. Though the Guarantee was limited to the 2008 Agreement, for all intent purposes, the Ds was referred to as the guarantor of Phuong to the Ps even after the expiry of the 2008 Guarantee. It has no objection from the D. The heavy financial obligations undertaken by the D to guarantee the performance of 805 Phuong are indicative of the D’s authoritative position over Phuong. The S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 24 D did not call CSS to support his argument that the Ps auditors requested the 2008 Guarantee. (b) The D was merely negotiating on behalf of Phuong when she 810 asked him to seek compensation for her during the buy-out negotiations for the D’s equity stake. However, as addressed earlier, neither adduced any evidence supporting this allegation. 815 (c) The D’s involvement in the operation of Phuong only reflects his role and function as the intermediary and co-ordinator of the business in Vietnam. It was responded to the Ps that the above argument was misguided by the D. It has always been the P's position that the D was the principal to all 820 the Agreements, which is why the D was heavily involved in Phuong’s operations. There was no objection at the material time since his involvement was consistent with his obligations as the principal to Phuong. (d) 388group.com and/or 388group.com.vn was used since DW2's 825 business involvement with P2 (2000-2011) with no complaint. Local representatives (Liew and Chai) also used such domain names in their business dealings and communications in Vietnam. Phuong, not the D, owns the 388 Joint Stock Co. The Ps responded that there are two different versions of this issue by the 830 D. In his amended defence, he claimed the domain names were created to ease communication between the D, Phuong, and the Ps agents. In his witness statement, he claimed that Hanh (DW2) made the email with the domain name for her use in her business communication with P2 and other third parties. When Phuong replaced Hanh, she inherited the email 835 with the domain name and created another one for her business use. His discrepancy in this evidence must be taken with caution. S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 25 (e) The D’s director’s fee was an agreed arrangement between the Ps and Phuong where the business accounts in Vietnam can 840 be used to settle the P's costs and expenses in Vietnam, including the D’s director’s fee from P2. The Ps responded that the D was able to get his director’s fees and dividends through Phuong in Vietnam, which shows the extent of his control over the Vietnam operations. 845 8.8 The D denied there had been any breach of the Agreements: (a) All the Non-Exclusive Dealership Agreements had expired on 30.06.2010 as stated in Section 2, Schedule 1 of those 850 Agreements. There was no extension to those Agreements. Therefore, the Ps letters of demand (04.05.2011 and 15.06.2011) are of no consequence. There could not have been a breach at the material time the LOD was issued. The Ps argued that the D never pleaded this issue, and his witnesses 855 never led any evidence on it. The D is misguided since Clause 5.1 of the Agreements says that both Agreements are renewed annually on an automatic basis unless they are terminated in writing. (b) The D also argued that there is no credible evidence to support 860 the allegation of breach of contract. Even if there are breaches of the Agreements, it was not by the D, but Phuong (DW7). In the present case, it has always been the case of the Ps that the D is the principal to Phuong. 865 (c) It was also argued that there was no evidence to support the allegation that the D/Phuong failed to deliver the financial records promptly, as requested by the Ps. It was put in evidence at the trial by the Ps that there was no rebuttal from either the D or Phuong concerning the letters issued by BCB and CRG on 870 the issue, which amounts to a tacit admission of the truth in those letters. S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 26 If they were concerned with the accuracy of the allegations, they should have refuted them by replying to those letters, which they never did. 875 (d) Regarding the failure to remit the predetermined cash float, D argued that, though delayed, the remittances had been duly completed by 10.03.2011. The burden is on the Ps to prove that the actual amount of collection above the predetermined cash float that Phuong failed to remit to the Ps. 880 The Ps responded to it: (i) The sum of USD365,088.60 was not remitted between 07.08.2009 and 21.05.2010, but a year later, in several tranches on 10.03.2011, after the Ps discovered that the sum was not remitted. That is already evidence of a breach. 885 (ii) The D and Phuong did not respond to BCB’s letter (27.10.2010) that detailed the auditor's findings that they had unlawfully retained USD 565,194.49 over the agreed cash float. (iii) They also failed to respond to BCB’s and CRG’s letters dated 04.05.2011, 15.06.2011, and 21.06.2011 on their failures to remit the 890 money. (e) The D argued that there is no evidence that the server connection was severed on 14.o5.2011, and the Ps were denied access to the Goldsoft System by Phuong or himself. 895 It was pointed out by the Ps that: (i) The D himself admitted that the server was disconnected in his email on 13.06.2011 to Chong. (ii) The Ps, BCB, and CRG letters to them (Phuong and the D) confirm that they have been locked out of the Goldsoft System since 900 14.05.2011. Phuong and the D failed to respond. (f) Removal of the Ps two representatives from Vietnam’s office is based on inadmissible hearsay evidence of PW2 (director of BCB and Group MD of CRG). 905 However: (i) The Ps showed that the D contradicted himself when he admitted in his email (30.05.2011) that Phuong and not him removed Alex and Liew. S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 27 (ii) This removal was recorded in BCB’s and CRG’s letter (26.05.2011) 910 and the Ps letter (15.06.2011) to the D. (iii) Neither D nor Phuong responded. PW2 evidence corroborates this position. In the circumstances, it was unnecessary to call Alex and Liew. 915 (g) The D counterclaim and seek compensation for the four separate legal actions based on the same facts to oppress him, where none had been withdrawn or discontinued. It is an abuse of process by the Ps. It bears repeating what was pointed out by the Ps: 920 (i) As for the earlier three civil suits, the D failed to adduce any evidence that the Ps did not have the genuine purpose of seeking redress against the D, nor has he suffered any damage from it. (ii) The first two suits could not be served on the D, and all three cases were discontinued well before the present suit was filed. 925 (iii) As pointed out by the Ps, the D failed to meet the requirements for the tort of abuse of process. I find the issue of the previous three civil suits inconsequential to the present proceedings and is a distraction, and there is no merit in this 930 counterclaim by the D. This counterclaim is not proven. In the circumstances, the P failed to discharge its burden, and its action must be dismissed with costs. 935 THE LAW [9] It is trite in law that all cases are decided on the legal burden of proof being discharged. It is the acid test applied in any particular case. 9.1 The burden of proof in establishing its case is on the plaintiff. It is 940 not the Ds' duty to disprove it. The evidentiary burden is trite that those who allege a fact are duty-bound to prove it (see s.101, 102, and 103 of the Evidence Act 1950). 945 S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 28 9.2 In Selvaduray v Chinniah [1939] 1 MLJ 253, 254 (CA) held: "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 950 defendant can say it is wholly immaterial whether I prove my case or not. You have not proved yours". 9.3 Johara Bi bt. Abdul Kadir Marican v. Lawrence Lam Kwok Fou & Anor [1981] 1 MLJ 139, (FC) held: 955 "It was all a matter of proof and that until and unless the plaintiff has discharged the onus on her to prove her case on a balance of probabilities, the burden did not shift to the defendant, and no matter if the defendant's case was completely unbelievable, the claim against him must in these circumstances be dismissed. With respect, we agree with this judicial approach." 960 [10] Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 1 CLJ 269, FC. The distilled principles, among others, are: 10.1 Where an agreement is not regulated by statute, parties are at 965 complete liberty, under the doctrine of freedom of Contract, to agree on any terms they think fit. 10.2 The role of the Court is to interpret the Contract sensibly (a commercially sensible construction). See Loh Wai Lian v SEA 970 Housing Corporation Sdn Bhd [1987] 1 LNS 37, PC. 10.3 The starting point is for the Court to recognise that in an action for a breach of Contract, it is for the Court to determine who is the innocent party and who is the guilty party. 975 10.4 A contract breaker must pay damages to the innocent party. However, if he has made any payment under a contract (not being a true deposit for the purchase of movable or immovable property), the contract breaker is entitled to have that payment set off against 980 the damages he has to pay. However, he cannot seek to recover S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 29 any benefit he may have conferred upon the innocent party where he is guilty of breach of Contract. Were it otherwise, a contract breaker could take advantage of his wrong. This is against the principle and the policy of the law. 985 10.5 The FC cited Attorney General of Belize v. Belize Telecom Limited [2009] UKPC 11, where when delivering the Advice of the Board, Lord Hoffmann said: “The Court has no power to improve upon the instrument which it is called upon 990 to construe, whether it be a contract, a statute or articles of association. It cannot introduce terms to make it fairer or more reasonable. It is concerned only to discover what the instrument means. However, that meaning is not necessarily or always what the authors or parties to the document would have intended. It is the meaning which the instrument would convey to a reasonable 995 person having all the background knowledge which would reasonably be available to the audience to whom the instrument is addressed: see Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, 912-913. It is this objective meaning which is conventionally called the intention of the parties, or the intention of Parliament, or the intention of 1000 whatever person or body was or is deemed to have been the author of the instrument.” 10.6 A contract is to be interpreted under the following guidelines: (a) A Court interpreting a private contract is not confined to the four 1005 corners of the document. It is entitled to look at the factual matrix forming the background of the transaction. (b) The factual matrix that forms the transaction's background includes all material reasonably available to the parties. (c) The interpreting Court must disregard any part of the 1010 background that is declaratory of subjective intent only and (d) The Court should adopt an objective approach when interpreting a private contract. See Investors Compensation Scheme Ltd v. West Bromwich Building Society [1998] 1 All ER 98. As Lord Clyde said in 1015 Bank of Credit and Commerce International SA v. Munawar Ali [2001] 2 WLR 735: “The knowledge reasonably available to them (that is to say, the parties to the Contract) must include matters of law as well as matters of fact. The 1020 problem is not resolved by asking the parties what they thought they S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 30 intended. It is the imputed intention of the parties that the Court is concerned to ascertain…. The meaning of the agreement is to be discovered from the words they have used and read in the context of the circumstances in which they made the agreement. The exercise is not one 1025 where there are strict rules but one where the solution is to be found by considering the language used by the parties against the background of the surrounding circumstances”. [11] The Federal Court in Michael C. Solle v United Malayan Banking 1030 Corporation [1986] 1 MLJ 45, FC observed that the principles of construction to be applied are that the parties' intentions are gathered from the language used. They are presumed to have intended what they say. The common universal principle is that an agreement ought to receive that construction, which its language will admit, that will best effectuate the 1035 parties' intention to be collected from the whole arrangement. The Courts are to give effect to the terms of the Contract (if any). FINDINGS 1040 [12] I have examined all-cause papers, the evidence at the trial, and the parties' respective submissions in canvassing for their position in the present suit. Considering my observation in the totality of the evidence and my observations in the parties' respective arguments in the above paragraphs [7] 7.1-7.7 and [8] 8.1-8-7, I find that: 1045 12.1 In line with the principles stated by the Federal Court in Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 1 CLJ 269: (a) The starting point is for the Court to recognise that in an action for a breach of Contract, it is for the Court to determine who is 1050 the innocent party and who is the guilty party. (b) A breach of Contract is said to occur when a party to a Contract expressly or impliedly fails or refuses to perform or fails to S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 31 perform satisfactorily one or more of his contractual obligations. 1055 I am satisfied with the Ps' evidence at the trial that Phuong is the nominee of the D. They (Phuong and the D) have colluded and are collectively in breach of the Agreements to the detriment of the Ps. 1060 (c) I find D has failed to establish his defence to exonerate himself from this suit. I take his evidence with abundant caution. His evasiveness and farfetched testimony at the trial adversely impacted the credibility of his evidence. 1065 (d) The D needed to adduce the required genuine and compelling evidence to tilt the scale of evidence in his favour but failed to do so. Besides bare assertions and suggestive evidence, no convincing materials were adduced to establish D’s case. 1070 (e) I have examined the Bundles of Documents of parties (L.136- L.153) and considered the respective learned counsels' arguments. However, I can't find such probative materials that can persuade me to find in favour of the D. 1075 12.2 All things considered; it is my findings that: (a) The D's demeanour at the trial and his evidence are suspect. It led me to take it with abundant caution. It is my considered view that the evidence of the defendant is primarily untenable and cannot refute the allegations against him. 1080 (b) The facts at the trial convinced me that Van Thuy Hanh and Pham Thi Minh Phuong, under the Non-Exclusive Dealership Agreements, acted in the D's interest and benefit. There is S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 32 irrefutable evidence that they acted upon the instruction of the 1085 D. To hold otherwise would be against the evidence at the trial. As, as a director of P2, it is apparent that the D's action was not in the best interest or benefit of the company. (c) I find that the breaches under the Agreements, as argued, had 1090 been committed to the Ps' detriment. I find the farfetched arguments by the D unconvincing to challenge the Ps' evidence. (d) I am guided by the Federal Court in Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 1 CLJ 269; the starting 1095 point is for the Court to recognise that in an action for a breach of Contract, it is for the Court to determine who is the innocent party and who is the guilty party. In the circumstances of the case, I hold the D as the principal to Phuong liable to the Ps in this suit. 1100 12.3 Legal and Evidential Objections: (a) Pleading Objections: I find no merit in the D's argument. I agree with the Ps provided under O.18 r.7(1) RC 2012. Only material facts need to be pleaded and not evidence. That legal 1105 position is trite. The D failed to object to these issues promptly at trial and cannot now be allowed to raise this issue in his submission. (b) Hearsay Evidence: Similarly, I find this argument by the D 1110 unsustainable in the circumstances of this case. (c) Without Prejudice letter: As rightly pointed out by the Ps, I had ruled on 27.09.2022 in dismissing the preliminary S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 33 objection that these letters are to be admissible to give the 1115 court, the whole appreciation of the facts between the parties. This is no longer an issue and should not be relitigated in the D’s submission. (d) Failure to call Witnesses: I find this argument untenable. If 1120 the Ps fail or refuse to call those named witnesses, it does not prevent the D from issuing them a subpoena to attend court to offer their evidence if they are pertinent to the D’s case. (e) Sections 91 and 92 EA 1950: it is evident that the Ps does 1125 not dispute the Agreements or the terms therein. They argue that Phuong executed those Agreements as a nominee of the defendant. The D disputed this allegation in his amended pleadings. Sections 91 and 92 EA do not come into play in the circumstances. Evidence is produced to establish that 1130 allegation by the Ps and not to contradict or vary the Agreements. 12.4 Audio Recordings and the transcript in IDD1 and IDD2 are not admitted for uncertainty and incompliance with the evidentiary 1135 requirements. The recordings were clearly edited/tampered and was not a continuous recording. In Lim Peng Hock & Anor v Chuah Peng San & Anor [2021] 1 LNS 119, CA, it was ruled that the Court cannot take it lightly as to digital evidence. It is very fragile and could be easily altered. Therefore, the issue of authenticity and reliability 1140 are essential for digital evidence. The defendant had not proved the issue of non-tempering. Therefore, any reference to them is disallowed and does not carry any evidential weight in my determination. S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 34 1145 CONCLUSION [13] After appraising the evidence, all the relevant cause- papers and the submissions by the respective parties, I find that the Ps had discharged their burden on a balance of probabilities. Accordingly, I entered final judgment for the Ps as follows: 1150 13.1 P1/Apex Marble Sdn Bhd: (i) The sum of RM946,496.39, being the unremitted proceeds of the sale of the stock. (ii) The sum of RM3,303,671.00 is the retail value of the unreturned 1155 stock. (iii) Interest from the date of judgment at 5% until full realisation. (iv) Costs. 13.2 P2/Mcore Sdn Bhd: 1160 (i) The sum of RM2,249,751.08 is the unremitted proceeds of the sale of the stock. (ii) The sum of RM14,871,167.03 is the retail value of the unreturned stock. (iii) Interest from the date of judgment at 5% until full realisation. 1165 (iv) Costs. 13.3 Global costs of RM100K will be paid to the Ps within 30 days from the date hereof. Since damages were quantified, the Ps are not proceeding with prayers 2 (an inquiry into damages) and 3 (an 1170 account of profits). The Counterclaim is dismissed with costs for want of compelling evidence and is evidently without merit. Dated 19.11.2023. 1175 HAYATUL AKMAL ABDUL AZIZ JUDGE HIGH COURT OF MALAYA KUALA LUMPUR 1180 S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 35 Counsels: Dhinesh Bhaskaran, together with Christal Wong and Jesryna Patel Messrs. Shearn Delamore & Co. 1185 Counsels for the plaintiff Chong Joo Tian Messrs. JT Chong Associates Counsels for the defendant 1190 S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

BA-45A-50-08/2020

PENDAKWA RAYA Pendakwa Raya [Pendakwa Raya] TERTUDUH 1. ) Mohammad Asyraaf Bin Hashim 2. ) Muhammad Aliff Afiqqi Bin Razali

Pengetahuan jenis dadah- dadah berbahaya atau tembakau-fakta pendakwaan yang berbeza pada tahap kes pendakwaan-pembelaan yang konsisten-jika keraguan berjaya ditimbulkan.

20/11/2023

YA Puan Nurulhuda Nur'aini Binti Mohamad Nor

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=6b6295cf-2b95-4f02-af1e-97f60c3e2c60&Inline=true

1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN PERBICARAAN JENAYAH NO: BA-45A-50-08/2020 PENDAKWA RAYA … PENDAKWAAN DAN 1. MOHAMMAD ASYRAAF BIN HASHIM & 2. MUHAMMAD ALIFF AFIQQI BIN RAZALI PERBICARAAN JENAYAH NO: BA-45-27-09/2020 PENDAKWA RAYA … PENDAKWAAN DAN MUHAMMAD ALIFF AFIQQI BIN RAZALI …TERTUDUH PERBICARAAN JENAYAH NO: BA-45-28-09/2020 PENDAKWA RAYA … PENDAKWAAN DAN MOHAMMAD ASYRAAF BIN HASHIM … ALASAN PENGHAKIMAN 20/11/2023 09:50:46 BA-45A-50-08/2020 Kand. 210 S/N z5Via5UrAkvHpf2DD4sYA **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Pengenalan [1] Tertuduh pertama adalah seorang pelajar Kolej Universiti Islam Antarabangsa (KUIS) manakala tertuduh kedua yang bukan pelajar KUIS, menumpang bilik tertuduh pertama pada hari tangkapan. Kedua-dua tertuduh menghadapi pertuduhan dengan niat bersama mengedar dadah dan pertuduhan memiliki dadah. Masing-masing turut menghadapi pertuduhan memiliki dadah yang dipertuduhkan secara berasingan. [2] Pertuduhan terhadap kedua-dua tertuduh adalah seperti berikut: BA-45A-50-08/2020 pertuduhan mengedar dadah terhadap kedua- dua OKT Bahawa kamu bersama-sama pada 10 Februari 2020 jam lebih kurang antara 11 hingga 12 malam bertempat di Bilik P1-1004-B, Tingkat 10, Blok P1, di asrama Kolej Universiti Islam Antarabangsa Selangor (KUIS) di dalam Daerah Hulu Langat di dalam Negeri Selangor Darul Ehsan telah mengedar dadah berbahaya iaitu cannabis seberat 290.95 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B (1)(a) Akta Dadah Berbahaya 1952 dibaca dengan seksyen 34 Kanun Keseksaan dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama. BA-45A-50-08/2020 pertuduhan memiliki dadah terhadap kedua-dua OKT Bahawa kamu bersama-sama pada 10 Februari 2020 jam lebih kurang antara 11 hingga 12 malam bertempat di Bilik P1-1004-B, Tingkat 10, Blok P1, di asrama Kolej Universiti Islam Antarabangsa Selangor (KUIS) di dalam Daerah Hulu Langat di dalam Negeri Selangor Darul Ehsan telah S/N z5Via5UrAkvHpf2DD4sYA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 didapati dalam milikan kamu dadah berbahaya iaitu cannabis seberat 0.77 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 6 Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 6 Akta yang sama dibaca dengan seksyen 34 Kanun Keseksaan. BA-45-27-09/2020 pertuduhan memiliki dadah terhadap OKT2 Bahawa kamu pada 10 Februari 2020 jam lebih kurang antara 11 hingga 12 malam bertempat di Bilik P1-1004-B, Tingkat 10, Blok P1, di asrama Kolej Universiti Islam Antarabangsa Selangor (KUIS) di dalam Daerah Hulu Langat di dalam Negeri Selangor Darul Ehsan telah didapati dalam milikan kamu dadah berbahaya iaitu cannabis seberat 12.35gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 6 Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 6 Akta yang sama. BA-45-28-09/2020 pertuduhan memiliki dadah terhadap OKT1 Bahawa kamu pada 10 Februari 2020 jam lebih kurang antara 11 hingga 12 malam bertempat di Bilik P1-1004-B, Tingkat 10, Blok P1, di asrama Kolej Universiti Islam Antarabangsa Selangor (KUIS) di dalam Daerah Hulu Langat di dalam Negeri Selangor Darul Ehsan telah didapati dalam milikan kamu dadah berbahaya iaitu cannabis seberat 0.86gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 6 Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 6 Akta yang sama. S/N z5Via5UrAkvHpf2DD4sYA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 [3] Bagi pertuduhan pertama, dadah ditemui dalam tin berwarna emas CHOCO BEAR yang dibaling keluar oleh OKT2 dari tingkap bilik asrama OKT1 ketika pemeriksaan premis dilakukan oleh warden/felo yang terdiri di antaranya SP3 (Ustaz Asri) dan SP6 (ustaz Hafiz). Bagi pertuduhan kedua memiliki dadah oleh kedua-dua OKT, dadah ditemui di atas sekeping kertas terbuka di atas deretan 3 meja yang mengadap dinding, terletak berhampiran tingkap di mana tin berwarna emas dibaling (lihat rajah kasar P14A). [4] Semasa rondaan oleh pasukan warden KUIS dibuat dan pasukan warden memasuki asrama OKT1 di aras 10 parcel 1 unit 1004-B, pintu bilik yang dibuka dari dalam oleh salah seorang daripada OKT tersebut. Asrama ini mempunyai 3 bilik dan warden KUIS telah masuk ke bilik no.2 setelah dibuka. Bilik ini mempunyai 2 katil single dan satu katil double decker serta 4 meja dan 4 kerusi untuk belajar. Bilangan pelajar yang mendiami bilik ini walau bagaimanapun tidak dapat dipastikan oleh mana- mana ahli warden SP3 mahupun SP6. [5] Walau bagaimanapun, menurut SP8 pelajar yang juga mendiami bilik ini, bilik ini hanya didiami oleh dia dan OKT1 sahaja. Jawapan SP8 berubah semasa soalbalas apabila SP8 bersetuju bahawa bilik 2 ini turut diduduki oleh beberapa sahabat OKT1 sama ada berupa pelajar KUIS ataupun dari luar. SP8 sendiri menumpang bilik sahabatnya di parcel 3 KUIS kerana sahabatnya mengikuti kursus yang sama. [6] Pada hari rondaan, semasa masuk ke bilik, SP6 nampak kedua-dua OKT berada di kerusi mengadap deretan meja belajar. Menurut SP3, S/N z5Via5UrAkvHpf2DD4sYA **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 OKT1 berada di meja berdepan dengan laptop. SP6 nampak bungkusan atas meja atas kertas putih berupa seperti serbuk yang telah hancur seperti tembakau. SP6 juga nampak satu tin biskut segi empat berwarna emas berada di bawah meja di tengah-tengah kaki meja. Apabila ditanya apa dalam tin, OKT2 tiba-tiba mengambil tin tersebut dan mencampak tin berwarna emas ini keluar melalui tingkap. [7] SP6 melihat melalui tingkap bilik dan nampak tin tersebut jatuh di aras 6. SP6 meminta rakan wardennya untuk memantau kedua-dua OKT manakala SP6 turun ke aras 6 untuk melihat tin tersebut. Tin tersebut dapat dilihat jatuh di kawasan kosong tiada pelajar dan setelah tin ditemui, SP6 telah membuat panggilan telefon kepada pihak polis untuk makluman dan tindakan mereka. [8] Setelah SP11 dari Balai Polis Bangi hadir, SP11 dan pasukan menuju ke bilik OKT di aras 10. Ketika SP11 memasuki bilik, SP11 telah mengarahkan warden/felo untuk kekal di luar bilik. Hasil pemeriksaan oleh SP11 menemui kertas putih dan daun-daun rokok atas meja. Setelah disoal mengenai apa-apa barang salah lain, kedua-dua OKT didapati mempunyai dalam milikan dan/atau kawalan mereka paket kecil disyaki megandungi dadah. [9] Hasil soal-siasat SP11, dadah yang menjadi subjek pertuduhan memiliki ke atas OKT2 dikeluarkan oleh OKT2 dari dalam poket sebelah kanan seluar yang dipakainya manakala dadah yang menjadi subjek pertuduhan memiliki ke atas OKT1 pula dibawa keluar oleh OKT1 dari dalam laci di bawah salah sebuah deretan 3 meja tersebut. S/N z5Via5UrAkvHpf2DD4sYA **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 [10] Salah seorang warden iaitu ustaz Asri SP3 telah memaklumkan kepada SP11 mengenai tin berwarna emas yang dicampak keluar oleh OKT2 melalui tingkap. SP11 telah arahkan Kpl Farhan SP12 untuk mencari tin tersebut yang ditemui Kpl Farhan berada bersama SP6 dalam pantauannya di aras 6. Carian ke aras 6 oleh SP12 ditemani oleh SP3 ustaz Asri sehingga bertemu SP6 Ustaz Hafiz yang berada berdekatan tin emas tersebut yang dilihat SP3 tidak bertutup. [11] Hasil pemeriksaan ke atas tin berwarna emas tersebut mengandungi beberapa ketulan mampat disyaki ganja. SP11 telah membuat laporan polis atas penemuan barang-barang rampasan ini Bangi Repot 397/2020 ditanda sebagai P18. [12] Barang-barang rampasan berupa barang salah ini dihantar ke Jabatan Kimia untuk analisa dan disahkan oleh ahli kimia SP5 ia adalah cannabis dengan berat sebagaimana pertuduhan. Isu yang ditimbulkan dalam kes pendakwaan [13] Isu yang dibangkitkan dalam pembelaan tertuduh ialah jika tin berwarna emas yang ditemui dan dipantau oleh SP6 di aras 6 adalah tin yang sama yang dibaling keluar oleh OKT2 berdasarkan atas isu deskripsi warna dan sama ada tin tersebut bertutup atau tidak semasa dicampak. Mahkamah berpendapat adalah tidak logik untuk disimpulkan sebagai suatu kebetulan terdapat satu tin lain yang mengandungi dadah ditemui S/N z5Via5UrAkvHpf2DD4sYA **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 di aras 6 dibiarkan tanpa pengawasan oleh sesiapa sehinggalah ditemui oleh SP6. [14] Mahkamah membuat dapatan bahawa tiada tin lain melainkan tin yang sama yang dicampak oleh OKT2 dan ditemui oleh SP6. Oleh itu, cadangan pembelaan melalui soal balas saksi-saksi pendakwaan mengenai penemuan yang dikatakan satu tin yang berbeza dari segi deskripsi warna kuning atau emas serta bertutup atau tidak, tidak membawa apa-apa keraguan yang munasabah bahawa terdapat satu tin lain mengandungi dadah berada di laluan kakilima aras 6 tersebut selain tin yang dibaling OKT2 dan tin yang sama ditemui SP6 lebih-lebih lagi deskripsi warna ‘kuning’ atau ‘emas’ hanyalah menjurus kepada persepsi warna. [15] Isu mengenai tin bertutup atau tidak pula telah dijelaskan oleh saksi pendakwaan SP3 bahawa tin ditemui tidak bertutup manakala tutupnya berdasarkan keterangan SP11 hanya diambil di bilik aras 10 semasa tin dibawa naik ke atas aras 10 oleh SP12 Kpl. Farhan. Oleh itu, isu sama ada ia tin yang sama yang dilihat oleh SP6 di aras 6 dan tin yang dibaling oleh OKT2 tidak menimbulkan apa-apa keraguan dari segi identity. [16] Isu yang berikutnya ialah mengenai isu identity barang kes dan pengetahuan OKT-OKT terhadap barang salah. Ini membawa kepada analisa keterangan lisan saksi pendakwaan sendiri dan pemeriksaan balas ke atas saksi-saksi pendakwaan yang menunjukkan pengendalian barang kes dan pengetahuan kedua-dua OKT terhadap bahan salah yang dirampas sama ada ia adalah ganja, satu dadah berbahaya atau ia adalah S/N z5Via5UrAkvHpf2DD4sYA **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 tembakau. Ini adalah penting kerana menurut SP3 Ustaz Asri, menyimpan tembakau dan merokok juga merupakan satu kesalahan di asrama. [17] Mahkamah dalam meneliti keterangan saksi-saksi pendakwaan mendapati seperti berikut: i. SP3 warden yang turut meronda bersama SP6 menyatakan terdapat serbuk tembakau di atas meja; ii. SP6 semasa melihat bahan atas kertas putih di atas meja menyatakan ia serbuk menyerupai tembakau; iii. SP11 dalam soal balas menyatakan tiba di aras 10 dengan SP3 (ustaz Asri) dan SP6 (ustaz Hafiz) berada dalam bilik 1004B tersebut dan ini bertentangan dengan versi SP3, SP6 dan pemeriksaan awal SP11 bahawa SP6 sedang memantau tin kuning di aras 6; iv. SP11 menyatakan bahan atas kertas putih di atas meja ialah daun- daun rokok malahan laporan polis P18 juga menyatakan terdapat serbuk tembakau di atas kertas putih di atas meja; v. Kedua-dua OKT dikatakan duduk di kerusi mengadap deretan meja di mana serbuk tembakau ini berada; vi. Borang bongkar P20 yang disediakan SP11 juga mengandungi catatan serbuk tembakau di atas kertas putih (ditanda sebagai M1); vii. Serbuk tembakau ini menurut borang bongkar (P20) adalah bertanda ‘M1’ dan mempunyai anggaran berat 0.3gram (ini menurut borang serah menyerah P22 di antara SP11 dengan IO SP13); viii. Borang bongkar P20 (bagi OKT1) dan P21 (bagi OKT2) tidak tepat kerana P20 turut menyenaraikan serbuk tembakau dan ketulan mampat dalam tin kuning sedangkan tin dibaling oleh OKT2; S/N z5Via5UrAkvHpf2DD4sYA **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 ix. Deskripsi barang rampasan ini di dalam P22 (serah-menyerah) melainkan ‘M1’, barang rampasan lain yang ditanda sebagai ‘M2’, ‘M3’ dan ‘M4’ dicatit sebagai ketulan; x. SP12 walau bagaimanapun tidak melihat perbuatan OKT mengeluarkan paket dari poket seluar atau laci dan tidak dapat mengecam paket-paket ini manakala tiada apa-apa keterangan dari SP3 (ustaz Asri) berhubung kejadian ini; xi. Serbuk ’M1’ dari atas meja ini kemudian dibungkus oleh IO SP13 ke dalam sampul bertanda ‘AN1’ setelah diserah oleh SP11 di balai dan dihantar ke Jabatan Kimia bersama barang rampasan lain disyaki dadah masing-masing di dalam sampul bertanda ‘AN2’, ‘AN3’ dan ‘AN4’; xii. Hasil pemeriksaan awal ahli kimia SP5 mendapati kandungan sampul ‘AN1’ dan ‘AN3’ ialah leraian manakala ‘AN2’ dan ‘AN4’ ialah ketulan dan ini berbeza dengan catitan di P22; xiii. Hasil Analisa ahli kimia mendapati leraian bahan tumbuhan ‘AN1’ adalah cannabis seberat 0.77gram yang berupa pertuduhan memiliki terhadap kedua-dua OKT. [18] SP13 pegawai penyiasat (IO) menyatakan bungkusan bertanda ‘M1’ ini selain bungkusan dan/atau paket lain telah dimasukkan ke dalam 4 sampul berasingan namun khususnya untuk ‘M1’ ke dalam sampul bertanda ‘AN1’. Pihak pembelaan mencabar rantaian pengendalian barang kes ini kerana SP12 Kpl Farhan telah menyatakan kesemua barang rampasan ini dimasukkan ke dalam tin CHOCO BEAR ketika di tempat kejadian dan penandaan hanya dibuat di balai. S/N z5Via5UrAkvHpf2DD4sYA **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 [19] Mahkamah mendapati tiada gambar diambil untuk menunjukkan barang rampasan serbuk tembakau ‘AN1’ ini manakala gambar-gambar lain (lihat eksibit P12(A-F) menunjukkan bentuk ketulan dan bukan leraian. Ini ditambah dengan borang serah menyerah P22 di antara RO SP11 dan IO SP13 tidak ditandatangani SP13 yang membangkitkan cadangan oleh pihak pembelaan bahawa barang kes yang dirampas bukan barang kes yang diserahkan kepada SP13. [20] Sebagai tambahan, borang Pol 31 semasa serahan dibuat ke Jabatan Kimia tidak dikemukakan untuk menunjukkan kandungan sampul-sampul yang diterima oleh ahli kimia SP5 adalah sama seperti yang diteliti oleh SP11(RO) dan SP13 (IO) meskipun SP5 menyatakan pemeriksaan yang dicerminkan di laporan kimia P16 adalah sama seperti di Pol 31. [21] Walau bagaimanapun, mengambil kira keseluruhan keterangan, Mahkamah ini berpuashati bahawa cadangan pihak pembelaan pada tahap ini hanyalah satu cadangan dan tiada apa-apa keraguan yang timbul di pihak Mahkamah untuk mencapai satu dapatan bahawa barang yang dirampas daripada OKT1 dan OKT2 adalah barang yang sama yang diserah oleh SP13 untuk analisa oleh ahli kimia SP5 (lihat: Ali Hossein Basher v PP [2015]1CLJ 918 [COA]). [22] Dari segi pengetahuan OKT1 dan 2 terhadap barang kes ini, meskipun keterangan berhubung tindakan atau perbuatan kedua-dua OKT mengeluarkan barang salah masing-masing daripada laci bawah meja dan dari poket seluar hanya datang daripada RO SP11 (yang mana S/N z5Via5UrAkvHpf2DD4sYA **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 ia dicabar oleh pihak pembelaan), namun ia tercatit dalam laporan polis P18, P20 dan P21 (senarai bongkar) dan ini menunjukkan OKT-OKT mengetahui barang salah ini adalah dadah berbahaya dan ia adalah dadah jenis cannabis sebagaimana hasil analisa ahli kimia SP5. [23] Dapatan ini selari dengan keputusan Mahkamah Persekutuan di dalam kes PP v. Reza Mohd Shah Ahmad Shah [2010] 1 CLJ 541 yang memutuskan seperti berikut: “[8] …The first aspect is regarding the type or extent of knowledge that is required for proof of possession… … [10] As regards the first aspect, learned counsel for the respondent submitted that this appeal by the Public Prosecutor revolved around the following "narrow question of legal interpretation" which he framed in his written submission: For a Court to find an accused guilty for possession of dangerous drugs ie, 'actual possession' as understood in criminal law without the aid of the statutory presumption under section 37(d) of 'deemed possession', must the prosecution prove beyond a reasonable doubt that the accused had knowledge of the nature of the dangerous drugs (in addition to having knowledge of the existence of the dangerous drugs)? [11] The question obviously arose from the learned trial judge's finding that with proof that the respondent had knowledge that there existed dangerous drugs in the plastic bag, the prosecution did not also have to prove that the respondent had knowledge of the "nature" of the drugs. Obviously, in framing the question, the learned trial judge was construed as saying that to prove possession it is not necessary to prove knowledge of the "nature" of the thing possessed. But it is clear to me, after considering as a whole all that the learned trial judge said on the question of knowledge, as I have set out, including what was said by him S/N z5Via5UrAkvHpf2DD4sYA **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 and by Yong Pung How CJ in the passage reproduced from Mohd Farid, that was not what the learned trial judge meant. What he meant was that with proof of knowledge that what was in the plastic bag were dangerous drugs, the prosecution did not also have to prove that the respondent knew what type of dangerous drugs they were or their name or exact qualities. That was what he meant by the "nature" that the prosecution did not have to prove knowledge of. He did not mean to say that the prosecution did not have to prove knowledge of the "nature" of the drugs as dangerous drugs. That he did find the prosecution had proved when he spoke of knowledge of the existence of dangerous drugs in the plastic bag. He meant that the respondent knew that there were dangerous drugs in the plastic bag or, in other words, that the respondent knew that what the plastic bag contained were dangerous drugs. That was what the learned trial judge meant when he said that the respondent "wanted to part possession with what constituted the offence" and that it was "a clear indication of his guilty mind". The respondent had a guilty mind because he knew that he had dangerous drugs in his possession. [12] To the learned trial judge, therefore, for the prosecution to prove that the respondent was in possession of cannabis the prosecution need only prove, as regards knowledge, that the respondent had knowledge that what he was carrying were dangerous drugs. The prosecution did not also have to prove that he knew that the dangerous drugs were cannabis. Therefore once knowledge that the thing carried was dangerous drugs was proved, possession of the particular drug, that is cannabis, was proved. That was why the learned trial judge, while saying that proof by inference "that the accused had knowledge of the existence of the dangerous drugs does not suggest that he knew that it was cannabis", nevertheless concluded "that the inferences drawn from the direct evidence are sufficient to show that the accused had possession of the cannabis". S/N z5Via5UrAkvHpf2DD4sYA **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 [13] I am sure that the learned trial judge was not unaware of the authorities, such as those that I will be mentioning later, that say that possession in criminal law requires knowledge of the nature of the thing possessed and that he was not disagreeing with those authorities. In Mohd Farid, after the passage reproduced in his judgment in the present case, he had said, at p. 421 H-I, in reference to Director of Public Prosecutions v. Wishart Brooks [1974] AC 862 and Neo Koon Cheo v. R [1959] 1 LNS 64, "Both these cases support the proposition that knowledge of the nature of the drugs possessed can be inferred from the circumstances of the case". He was speaking of proof by inference of knowledge of "the nature of the drugs possessed". I think it is a matter of his understanding of what is meant by "nature of the drugs possessed". When he said in the present case that the prosecution did not have to prove knowledge of the nature of the drugs he must have said it on a view of "nature" as meaning name or type or exact qualities. But if "nature" means nature as a dangerous drug, then, when he said that the accused had knowledge of the existence of the dangerous drugs, which I understand to mean that the accused knew that there were dangerous drugs in the plastic bag, the learned trial judge must be taken to be saying, consistently with the authorities, that the prosecution did have to prove, and did prove, knowledge of the nature of the dangerous drugs, but nature as dangerous drugs”. [24] Dengan itu, Mahkamah memutuskan pembelaan dipanggil kerana berpuas hati bahawa pihak pendakwaan telah berjaya membuktikan satu kes prima facie melalui keterangan langsung milikan dan pengetahuan kedua-dua OKT terhadap dadah yang berada dalam kawalan dan jagaan mereka menerusi tindakan mereka mengeluarkan dadah tersebut selain tindakan OKT2 membaling tin mengandungi dadah. Bagi pertuduhan mengedar pula, oleh kerana berat dadah yang terlibat melebihi berat minima 200gram cannabis, anggapan pengedaran di bawah seksyen 37(da) adalah terpakai terhadap kedua-dua tertuduh. S/N z5Via5UrAkvHpf2DD4sYA **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 Kes pembelaan [25] Pembelaan OKT1 ialah dia tidak melihat kejadian OKT2 membuang tin dari tingkap bilik kerana ketika itu OKT1 memandang ke arah pintu. OKT1 juga menafikan dia mengeluarkan dadah dari laci bawah meja di dalam kehadiran SP11. Menurut OKT1, semasa SP3 dan kumpulan warden masuk, OKT1 baru sahaja berniat untuk ke bilik air yang terletak di luar bilik namun dibatalkan dan pada ketika itu dia meneruskan menyiapkan tugas di laptopnya. [26] Manakala pembelaan OKT2 menimbulkan pembelaan yang sama dan selari dengan apa yang dibangkitkan semasa kes pendakwaan iaitu dia hendak menghisap rokok dan mengambil tembakau dari dalam tin apabila bilik tersebut dimasuki oleh warden. OKT2 telah bertindak mencampakkan tin ke luar kerana tahu menghisap rokok merupakan kesalahan di asrama KUIS. [27] OKT2 menafikan mengeluarkan paket dadah dari poket seluarnya sebaliknya menyatakan kesemua dadah ditemui dari dalam laci. OKT1 juga menafikan mengeluarkan dadah dari dalam laci. Dapatan Mahkamah [28] Versi penemuan dadah yang dibangkitkan di peringkat kes pembelaan adalah konsisten dengan apa yang dicadangkan pada saksi pendakwaan SP12 bahawa kesemua dadah dalam bilik ditemui di bawah laci. Versi bahawa OKT2 tidak ada mengeluarkan paket dari poket seluarnya kekal dalam kes pembelaan dan versi ini turut dicadangkan S/N z5Via5UrAkvHpf2DD4sYA **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 kepada SP12 yang meskipun tidak bersetuju dengan cadangan ini, namun menyatakan dia tidak nampak perbuatan OKT2 mengeluarkan paket ini dari poket seluar. [29] Begitu juga versi pembelaan bahawa bilik 2 ini turut diduduki oleh beberapa individu yang lain sama ada pelajar KUIS atau bukan pelajar turut dicadangkan dan dipersetujui oleh saksi pendakwaan sendiri iaitu SP8 yang mempunyai kunci bilik 1004B tersebut dan dengan sendiri menyatakan mempunyai akses ke bilik tersebut. Maka ia bukanlah satu pembelaan yang afterthought. Pihak pendakwaan tidak memanggil penghuni lain bilik 1004B ini untuk menafikan versi pembelaan bahawa kedua-dua OKT bukan sahaja mempunyai pengetahuan bahawa barang salah tersebut adalah dadah tetapi juga mempunyai milikan ke atasnya. [30] Pada tahap kes pendakwaan dan pembelaan, tertuduh-tertuduh bergantung kepada pembelaan yang konsisten iaitu dadah yang ada pada anggapan mereka adalah tembakau dan perbuatan membaling tin keluar dari tingkap bilik ialah kerana memiliki tembakau dan merokok adalah satu kesalahan di asrama KUIS. Malahan saksi-saksi pendakwaan sendiri menyatakan pada pandangan dan pemerhatian mereka apa yang terletak di atas kertas putih di atas meja adalah serbuk tembakau. [31] Atas beban yang hanya untuk menimbulkan keraguan yang munasabah atas dapatan milikan dan pengetahuan yang dicapai oleh Mahkamah semasa pembelaan dipanggil, maka versi pembelaan ini adalah munasabah dan berjaya menimbulkan keraguan di akhir kes pembelaan. Atas dapatan ini, Mahkamah melepaskan dan membebaskan S/N z5Via5UrAkvHpf2DD4sYA **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 kedua-dua tertuduh daripada pertuduhan mengedar bagi dadah di dalam tin dan pertuduhan memiliki bagi dadah di atas meja. [32] Bagi pertuduhan memiliki yang lain, tiada saksi-saksi pendakwaan lain yang melihat kejadian yang dikatakan oleh SP11 iaitu OKT masing- masing mengeluarkan paket dadah dari dalam poket dan dari laci. Pembelaan ini juga diutarakan oleh kedua-dua OKT semasa memberi keterangan bahawa mereka tidak ada mengeluarkan apa-apa paket dadah dari dalam poket atau laci. [33] Mahkamah ini juga berpendapat berdasarkan pemeriksaan balas atas keterangan SP11 (RO) yang diajukan pembelaan, SP11 bersetuju bahawa dia telah menyuruh OKT1 menandatangani borang bongkar kerana OKT1 telah mengaku membuang tin mengandungi dadah tersebut. Keterangan ini jelas bertentangan dengan keterangan saksi pendakwaan yang lain khususnya SP3 dan SP6 kerana tin tersebut telah dicampakkan oleh OKT2 dan bukan OKT1. [34] OKT1 di dalam kes pembelaan menyatakan telah menandatangani satu kertas tetapi tiada apa-apa penjelasan telah diberikan oleh SP11 mengenai butiran kertas yang ditandatanganinya. Tiada soal-balas oleh pihak pendakwaan untuk menafikan bagaimana tandatangan OKT1 boleh berada di P20 tersebut, oleh itu Mahkamah ini berpendapat bahawa borang bongkar ini tidak boleh digunakan untuk menunjukkan kebenaran fakta bahawa dadah dikeluarkan oleh OKT1 dari laci selain fakta bahawa tin telah dicampak keluar oleh OKT1 (lihat: Wong Swee Chin v. PP [1980] 1 LNS 138; [1981] 1 MLJ 212) S/N z5Via5UrAkvHpf2DD4sYA **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 [35] Dengan dapatan ini, apa yang tinggal yang boleh dikaitkan dengan mana-mana OKT1 dan 2 ialah dadah di atas kertas putih yang berdasarkan pengetahuan OKT2 ialah tembakau. Manakala OKT1 pula hanyalah berada dalam kedudukan berhampiran dengannya. Jikapun OKT1 mengetahui kedudukan dan kewujudan bahan salah ini, pada pengetahuan mereka ia hanyalah serbuk tembakau dan bukan satu jenis dadah berbahaya. [36] Berdasarkan keseluruhan kes pembelaan ini, Mahkamah berpendapat pihak pembelaan telah Berjaya menimbulkan keraguan yang munasabah di atas kes pendakwaan. Kedua-dua OKT dilepas dan dibebaskan daripada kesemua pertuduhan. Hakim MTJ3 Shah Alam Bertarikh:4hb Ogos 2023 Bagi pihak pendakwaan: TPR Shahrul Ekhsan bin Hasim, Pejabat Timbalan Pendakwa Raya Tingkat 4, Podium Utara, Bangunan SSAAS 40152 Shah Alam Selangor Darul Ehsan S/N z5Via5UrAkvHpf2DD4sYA **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 Bagi pihak OKT1 Tetuan Idris Zaidel & Partners Peguambela & Peguamcara, No. 27-4, Jalan USJ 9/5Q Subang Business Centre UEP, 47620 Subang Jaya, Selangor. Bagi pihak OKT2: Tetuan Anwar Raof & Co Peguambela & Peguamcara E-2-22, IOI Boulevard Jalan Kenara 5, Bandar Puchong Jaya, 47170 Puching, Selangor. S/N z5Via5UrAkvHpf2DD4sYA **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

S-01(NCvC)(W)-390-08/2020

PERAYU Fung Lee Mee @ Jellsie RESPONDEN 1. ) Fung Shaw Yiew @ Jellfer 2. ) Fung Siew Fa @ Emily

Adverse Inference under Section 114(g) of the Evidence Act 1950 with respect of failure and refusal to tender existing evidence in court and failure to call witness to testify.

20/11/2023

YA Datuk Azimah binti OmarKorumYA Dato' Lee Swee SengYA Datuk Supang LianYA Datuk Azimah binti Omar

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=baf66366-1bf8-42ad-bbe1-be59e6510d80&Inline=true

IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO.: S-01(NCVC)(W)-379-08/2020 BETWEEN PUBLIC BANK BERHAD … APPELLANT (NO. PENDAFTARAN: 6463-H) AND 1. FUNG SHAW YIEW @ JELLFER … 1ST RESPONDENT (NO. KAD PENGENALAN: 610515125012) 2. FUNG SIEW FA @ EMILY … 2ND RESPONDENT (NO. KAD PENGENALAN: 690702125230) 3. REGISTRAR OF TITLES LAND AND SURVEYS DEPARTMENT … 3RD RESPONDENT HEARD TOGETHER WITH IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO.: S-01(NCVC)(W)-390-08/2020 BETWEEN FUNG LEE MEE @ JELLSIE … APPELLANT (NO. KAD PENGENALAN 680702-125388) AND 1. FUNG SHAW YIEW @ JELLFER … 1ST RESPONDENT (NO. KAD PENGENALAN: 610515125012) 2. FUNG SIEW FA @ EMILY … 2ND RESPONDENT (NO. KAD PENGENALAN: 690702125230) (IN THE MATTER OF ORIGINATING SUMMONS NO. BKI-22NCVC-97/8- 2017 IN THE HIGH COURT IN SABAH AND SARAWAK AT KOTA KINABALU) BETWEEN 1) FUNG SHAW YIEW @ JELLFER (NO. KAD PENGENALAN: 610515125012 2) FUNG SIEW FA @ EMILY (NO. KAD PENGENALAN: 690702125230) … PLAINTIFFS AND 1) FUNG LEE MEE @ JELLSIE … 1ST DEFENDANT (NO. KAD PENGENALAN: 680702125388) 2) REGISTRAR OF TITLES, LANDS AND SURVEYS DEPARTMENT …2ND DEFENDANT 3) PUBLIC BANK BERHAD …3RD DEFENDANT (NO. PENDAFTARAN: 6463-H) CORUM LEE SWEE SENG, JCA SUPANG LIAN, JCA AZIMAH BINTI OMAR, JCA JUDGMENT OF THE COURT A. INTRODUCTION [1] The two Appeals before us concern a claim by two co-beneficiaries (“the Plaintiffs”) against another co-beneficiary (“the 1st Defendant of a property left by their deceased’s father (“the deceased estate”). The Plaintiffs alleged that the 1st Defendant had unlawfully transferred their collective 2/5th shares (each of the Plaintiffs owns 1/5th share) of the deceased’s estate’s property to her name. It was also alleged that subsequent to the transfer, the 1st Defendant had wrongfully charged the Plaintiffs’ shares on the property together with their 1/5th share each on the property to secure a personal loan of RM220,000.00 from the bank (“the 3rd Defendant Bank”). [2] The 2nd Defendant in this action is the Registrar of Titles, Lands and Surveys Department. They were sued as a nominal Defendant for purposes of execution of any consequential orders made by the court if at the end of the case the Plaintiffs were to succeed in their claim. At the High Court, the learned State Counsel who appeared for the 2nd Defendant had placed on record that they would not be taking part in the trial of the action and would abide by the decision handed down by the court. B. BACKGROUND FACTS [3] For a better understanding of the matter at hand, it is necessary to set out the facts of the case that has led to the present Appeals before us. The Plaintiffs (Fung Shaw Yiew @ Jellfer - 1st Plaintiff) and Fung Shaw Fa @ Emily - the 2nd Plaintiff) and the 1st Defendant (Fung Lee Mee @ Jellsie) are siblings. They have two (2) other sisters namely; Fung Lee Lee @ Lily Fung (“Lily”) and Fung Siew Yee @ Suzie Fung (“Suzie”). [4] As we have mentioned earlier, the dispute in this matter relates to a property left by the late Fung Sing Wah @ Ah Sing who was the late father of the Plaintiffs, the 1st Defendant as well as Suzie and Lily who were not parties this suit. Fung Sing Wah @ Ah Sing had passed away on 8.11.1991. The property is a double-storey corner commercial shophouse located at Lot 26, Cameron Villa, 3.5 mile, Jalan Penampang situated in the District of Kota Kinabalu and held under Country Lease No. 015328471 (“the Property”). [5] By an Order of Succession (“Jadual Tiga”) issued by the Mahkamah Anak Negeri Kota Kinabalu under Native Court Case No. 192/92 and registered by the Registrar of Titles under Memorial No. 10285510, the two Plaintiffs Jellfer and Emily, the 1st Defendant (Jellsie), Lily and Suzie were registered as equal co-owners of 1/5th share each of the Property. [6] The 3rd Defendant Bank (Public Bank Berhad) is the chargee over the whole of the Property in dispute. The 3rd Defendant Bank was not a party to the dispute between the Plaintiffs and the 1st Defendant, until after conclusion of trial when it was revealed that a charge was subsisting over the Property in favour of the 3rd Defendant Bank. [7] The Learned High Court Judge was of the view that although the Plaintiffs' action was only in respect of their respective 1/5 shares in the Property, but since the charge was over the whole of the property, therefore the rights of the 3rd Defendant Bank were likely to be affected by the outcome of the trial in the event the Court should rule in favour of the Plaintiffs. The High Court had therefore, on 11.10.2019, invoked Order 15 rule 6(2)(b)(ii) of the Rules of Court 2012 and ordered that the 3rd Defendant Bank be made as a party in this action. [8] It remains clear to us that as far as the Plaintiffs are concerned, they firmly stood on the position that although being the co-proprietors of the Property having an equal 1/5th share each, they purportedly claimed that they were unaware that the said Property was wholly transferred to the 1st Defendant. The Plaintiffs also asserted that they were unaware that subsequent to having the property solely under her name, the 1st Defendant had obtained a personal loan of RM220,000.00 for her benefit from the 3rd Defendant Bank. As security of the said loan, a registered charged was effected on the Property in favour of the 3rd Defendant Bank. It was also the pleaded case of the Plaintiffs that they had never signed the Memorandum of Transfer (“MOT”) transferring their shares to the 1st Defendant and the signatures appearing on the MOT for the said transfer were not theirs. [9] On the contrary, although not disputing that Property was previously registered under the names of the Plaintiffs, the 1st Defendant, Lily and Suzie (as equal co-proprietors by virtue of the Jadual Tiga), the 1st Defendant’s pleaded case was that the five registered proprietors were holding the Property as trustees for the benefit of their then surviving mother, Wong Nyet Ting via a trust created by their late father prior to his demise (Trust / Secret Trust). [10] The 1st Defendant further asserted that out of the RM220,000.00 loan monies that she received from the 3rd Defendant Bank, the sum of RM170,000.00 was given to their then surviving mother by crediting the sum into her Public Bank Account No. 4979349606 jointly held with Lily on 4.9.2002. [11] In her retaliation of the Plaintiffs’ claim against her, the 1st Defendant had counterclaimed against the Plaintiffs for general damages for malicious prosecution and abuse of legal process. [12] The 3rd Defendant Bank had refuted the Plaintiffs’ claims against the creation of the Charge over the Property. The 3rd Defendant Bank staunchly asserted that notwithstanding the fact they knew (from their land search conducted and endorsements on the title prior to granting the loan facility to the 1st Defendant) about the relationship of the five siblings in relation to the inheritance of the Property, they vehemently denied that the transfer of the Plaintiffs’ shares in the Property to the 1st Defendant (and even the charge on the property executed by the 1st Defendant) were carried out without the knowledge of the Plaintiffs, Suzie, and Lily. [13] The 3rd Defendant Bank also denied that it had colluded with the 1st Defendant to cover up any alleged forgery. The 3rd Defendant Bank pleaded that the bank is a bona fide chargee, holding indefeasible title on the property for valuable consideration. [14] Now, it is to be noted that the Plaintiffs’ action originally began as a siblings’ dispute over their deceased father’s property. However, following the addition / the inclusion of the 3rd Defendant Bank as a party, the action is now inter-twined with the issue whether or not the 3rd Defendant Bank’s title or interest over the Property as subsequent chargee was indefeasible as a bona fide chargee for valuable consideration. THE 1st DEFENDANT'S DEFENCE AND COUNTERCLAIM [15] The 1st Defendant pleaded that although the Property was previously registered in their names as equal co-owners pursuant to the Order of Succession (Jadual Tiga) issued by the Mahkamah Anak Negeri Kota Kinabalu on 10.03.1993, the 1st Defendant, Lily, Suzie and the Plaintiffs were in actual fact holding the Property on trust created by their late father before he passed away for the benefit of their mother, Wong Nyet Ting @ Ahut. [16] The 1st Defendant denied that the MOT was not signed by the Plaintiffs and further pleaded that all of the 5 sisters did so at the direction of their then surviving mother in a family meeting held after they discovered that the Plaintiffs had attempted to sell off the Property to a third party for the sum of RM160,000.00 without her knowledge or consent. The 1st Defendant further stated that the Plaintiffs had executed the MOT in front of 2 attesting witnesses working with the Lands and Surveys Department at the material time. [17] After the transfer, the 1st Defendant charged the Property to the 3rd Defendant to secure a loan amounting to RM220,000.00 (amount of which was released to the 1st Defendant on 29.8.2002). A sum of RM170,000.00 from the loan amount was remitted by the 1st Defendant to their late mother by crediting the monies into her Public Bank Account No. 4979349606 jointly held with Lily on 04.09.2002. [18] The 1st Defendant counterclaimed for general damages for malicious prosecution and abuse of legal process. THE 3RD DEFENDANT’S DEFENCE [19] The 3rd Defendant Bank pleaded that by a letter of offer dated 22.07.2002, it had granted a credit facility of RM220,000.00 to the 1st Defendant for the purpose of "personal consumption". The credit facility was secured by a charge over the Property in favour of the 3rd Defendant Bank. [20] While admitting to having knowledge of the relationship between the 5 sisters’ inheritance of the Property (based on the land search conducted and endorsements on the title of the Property prior to granting the credit facility to the 1st Defendant) the 3rd Defendant Bank denied that the transfers from the Plaintiffs to the 1st Defendant (and the creation of the charge) were made without the consent or knowledge of the Plaintiffs, Lily and Suzie. [21] The 3rd Defendant Bank further denied colluding with the 1st Defendant to cover up any alleged forgery and pleaded that it was a bona fide subsequent chargee of the Property for valuable consideration. [22] We noted from the Learned Judge’s grounds of judgment that in determining the action before her, she was guided by the agreed issues which the parties had set out in Enclosure 95 filed by the Plaintiffs’ solicitors. The agreed issues were namely; (a) Issues between the Plaintiffs and the 1st Defendant: (i) Whether the Plaintiffs' 1/5 undivided shares each in the Property and duly registered on 28.06.1993 under Memorial No. 10285510 pursuant to an Order of Succession from the Mahkamah Anak Negeri in the matter of the estate of Fung Sing Wah @ Ah Sing under Native Court Case No. 192/92 are lawful inheritance for their own benefits or conversely, as contended by the 1st Defendant, given to the Plaintiffs along with the 1st Defendant and 2 other sisters namely Lily and Suzie on trust for the benefit of their mother, Wong Nyet Ting @ Ahut; (ii) Whether the Plaintiffs did sign the MOT purporting to transfer their respective 1/5 undivided share in the said Property to the 1st Defendant on the direction of their late mother, the said Wong Nyet Ting @ Ahut as contended by the 1st Defendant or the MOT was not executed by the Plaintiffs and was effected without their prior knowledge and approval, (iii) In the event the answer to issue 2 above is the MOT was not executed by the Plaintiffs and was effected without their prior knowledge and approval, whether the registration of the 1st Defendant as the transferee of the Plaintiffs' shares in the Property and duly registered as Memorial No.10405428 on 22.08.2002 and the subsequent charge by the 1st Defendant to the 3rd Defendant Bank and duly registered as Memorial No. 10405429 on 22.08.2002 are liable to be set aside on the ground that the MOT was an invalid or vold instrument; and (iv) Whether the 1st Defendant is liable to make restitution to the Plaintiffs and in damages and if so, what measure of damages. (b) Issues between the Plaintiffs and the 3rd Defendant Bank (i) What is the effect of the said Charge of the 3rd Defendant in the event the Court finds the instrument of transfer dated 22.08.2002 purportedly to transfer the 1st and 2nd Plaintiffs' 1/5 undivided shares each in the Property to the 1st Defendant to be invalid or a nullity; and (ii) Whether the said Charge confers on the 3rd Defendant Bank an indefeasible title or interest in the Property upon registration or conversely, liable to be set aside at the instance of the 1st and 2nd Plaintiffs as the rightful owners of the 1/5 undivided shares each in the Property. C. BEFORE THE HIGH COURT [23] At the conclusion of the trial, the Learned Judge had found in favour of the Plaintiffs where the Learned Judge held that the Plaintiffs had successfully proven their case on the balance of probabilities against the 1st Defendant and the 3rd Defendant Bank. The Learned Judge thereby allowed the reliefs claimed by the Plaintiffs in their Amended Statement of Claim namely; amended prayers 1(i), (ii) and (iii), 2 (ii), (iii) and ordered the 1st Defendant and the 3rd Defendant Bank to pay costs to the Plaintiffs. [24] The Learned Judge had dismissed the 1st Defendant’s counterclaim against the Plaintiffs. [25] From her grounds of judgment, we identified that the Learned Judge had primarily allowed the Plaintiffs’ claim on the following grounds: a. Although the Plaintiffs did not call any handwriting expert during trial to support their pleaded case for alleged forgery, guided by the decision in Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697 (“Letchumanan”), the Learned Judge concluded that on the totality of evidence, the Plaintiffs had proven the following on the balance of probabilities: i. the Plaintiffs’ shares in the Property were lawfully inherited from their father’s estate and that the Property was not held on trust; ii. the Plaintiffs did not sign the MOT dated 20.2.2002 to transfer their respective shares in the Property to 1st Defendant. b. The Learned Judge had arrived at the above conclusion based on the following reasons: i. Paragraph 2 of the Statement of Agreed Facts mutually admitted to the equal distribution to the 5 siblings while the letter issued by the Kota Kinabalu Native Court dated 10.3.1993 to the Lands & Surveys Department (enclosing Jadual) 3 also ordered that the Property be distributed in equal shares to the 5 siblings. Since these documents were put in Part A, thus the documents’ contents and authenticity were mutually agreed to by the parties. The Jadual Tiga was endorsed with the Memorial No. 110285510 i.e. the same Memorial Number which appeared on the Title Deed of the Property. By virtue of Order 34 rule 2(2)(d) Rules of Court 2012 the parties are therefore bound by the facts they have agreed to; ii. The Learned Judge had found that the Plaintiffs were truthful witnesses. She had accepted the 1st Plaintiff’s narrative about her discovery that the Plaintiff’s shares were unlawfully transferred to the 1st Defendant to be the truth; iii. PW1 had testified that circa 2014 (22 years since initially obtaining of 1/5 share and 12 years since transferring the same share to the 1st Defendant) she was having financial difficulties when her husband passed away and had sought for the siblings’ mutual brother’s (PW4) assistance. This prompted PW4 to remind her of the Property which he said was generating rental income. Thereafter, they had gone to the Lands and Surveys Department on 3.9.2014 to conduct a land search over the Property. From there, it was allegedly found out that the Property had been wholly transferred to the 1st Defendant in the year 2002. The Plaintiffs subsequently obtained a copy of the MOT and Memorandum of Charge executed by the 1st Defendant in favour of the 3rd Defendant Bank. Upon such alleged discovery, two days later on 5.9.2014, PW1 lodged a police report. About three weeks after lodging the police report, on 1.10.2014 the Plaintiffs had instructed their solicitors to apply for Collector’s caveat and also to lodge a private caveat. Following PW1’s police report, the police had begun their investigation on the allegation by the Plaintiffs and as at the date of trial the police investigation was still ongoing (as was confirmed by PW2 who is the Head of Commercial Unit at the Keningau District Police Headquarters); iv. PW2 testified that following the police investigation, a chemist report had been prepared to ascertain whether signatures of the Plaintiffs on the MOT were genuine or not. However, the Chemist Report was not produced in court as it was “classified” and that it was part of the investigation papers of the ongoing investigation; v. The Learned Judge believed and accepted the evidence of PW1, PW2 and the documents (the police report and the lodgement of caveats) tendered by the Plaintiffs. The Plaintiffs had tendered the official receipt for the land search issued by the Lands and Surveys Department on 3.9.2014 which date corresponded with the certification stamp on the copy of the title Deed and MOT obtained by the 1st Plaintiff; vi. The Learned Judge held that the Official Receipt of Land Search done by the Plaintiffs had supported the Plaintiffs' evidence that the 1st Plaintiff had conducted a land search in respect of the Property in 2014 and upon the land search being done they allegedly discovered for the first time, of the transfer of their shares to the 1st Defendant; vii. The Learned Judge found that the Plaintiffs’ evidence and the contemporaneous documents had supported the Plaintiffs’ pleaded case that they never went to the Lands and Surveys Department at Tambunan and Kota Kinabalu on 22.4.2002 to sign the MOT before the attesting witnesses, DW2 and DW4 (land office clerks in Tambunan and Kota Kinabalu respectively). Therefore, the Plaintiffs allegedly have never signed the MOT; viii. The Learned Judge further accepted the evidence of PW4. She made a finding that PW4’s evidence had supported the Plaintiffs’ version of the circumstances which has led to the transfer of the Property to his 5 sisters and the manner in which the unlawful transfer of the Plaintiffs’ shares to the 1st Defendant was uncovered by the 1st Plaintiff. PW4 had also corroborated the Plaintiffs’ position that the Property was not held by the Plaintiffs on trust for their mother. The relevant portion of PW4’s evidence is reproduced below: “A5: When my father passed away, he had this Shophouse at Kota Kinabalu in his own name. After discussion with my mother, Wong Nyet Ting, my mother and I decided that we and my two (2) younger brothers, Fung Tee Ing and Fung Tee Lo will not claim any share in the Shophouse and to allow the five (5) daughters to have the Shophouse in equal shares. I have no problem to give up my share of the Shophouse although I have the right to claim as I already made a promise to my late father before he passed away. My mother also did not want any share of the Shophouse. As the lawful wife, my mother made the application to Mahkamah Anak Negeri and she also on behalf of her three (3) sons made a Surat Akuan on 09.02.1993," ix. The Learned Judge held that there was no good reason to disbelieve PW4's direct evidence as to how the Surat Akuan came about; x. The Learned Judge had accepted Exhibit "P3"- Surat Akuan dated 9.2.1993 made by the parties’ late mother. She found that P3 was not only a contemporaneous evidence but was wholly consistent with the subsequent grant of Jadual Tiga by the Mahkamah Anak Negeri a month later on 10.3.1993. Without their mother's Surat Akuan, there would not have been any basis for the Native Court to allow the daughters to inherit the Property to the exclusion of their mother and brothers; xi. The Learned Judge had wholly rejected the evidence of the 1st Defendant (DW1) and her witnesses. [26] Dissatisfied with the Learned Judge’s decision, the 3rd Defendant Bank and the 1st Defendant had filed the two (2) separate Appeals before us. [27] Appeal No. S-01 (NCVC)(W)-379-08/2020 (“Appeal 379”) was primarily the 3rd Defendant Bank’s Appeal to defend its position as a bona fide subsequent chargee for value holding deferred indefeasible title. On the other hand, Appeal No. S-01 (NCVC)(W)-390-08/2020 (“Appeal 390”) was the 1st Defendant’s Appeal essentially to challenge the Learned Judge’s finding of the unlawful and invalid transfer of the Plaintiffs’ shares of the property to the 1st Defendant and that the shares were not held on trust for their then surviving mother. D. THE APPEAL BEFORE US [28] We have perused both Appeals’ Memorandums of Appeal, Records of Appeal, and all respective written submissions in both Appeals 379 and 390 and verily believe that both of the Appeals can be determined by answering the following issues: a. Issue 1: Whether or not the Learned Judge was correct in finding that the Plaintiffs have discharged their burden of proof (on the balance of probabilities) that they had never signed the MOT and that the Plaintiffs’ shares (1/5th share each) on the property had been unlawfully transferred to the 1st Defendant without the Plaintiffs’ knowledge by way of forged signatures; and b. Issue 2: Whether or not the Learned Judge was correct in finding that the 3rd Defendant Bank was not a bona fide subsequent chargee for valuable consideration. [29] The parties shall herein be referred to in their original capacities as they were in the High Court. E. Issue 1: Whether or not the Learned Judge was correct in finding that the Plaintiffs have discharged their burden of proof (on the balance of probabilities) that they had never signed the MOT and that the Plaintiffs’ shares (1/5 share each) on the property had been unlawfully transferred to the 1st Defendant without the Plaintiffs’ knowledge by way of forged signatures [30] Now, it defies logic and the law if we were to outright agree that the tendering of a handwriting expert was not at all necessary for the Plaintiffs to prove their allegation of fraud by means of forgery of their signatures. The law and plain logic would dictate that evidence from a handwriting expert would be most scientifically helpful to guide the wisdom of the Court as to the authenticity of the Plaintiffs’ signatures appearing on the MOT. Although we are also aware that evidence of a handwriting expert is not the only manner of evidence that could prove or disprove an allegation of forgery. But the usefulness of such expert evidence cannot be denied. [31] Peculiarly, the Plaintiffs’ own witness, PW2 testified that in the course of investigating the Plaintiffs’ police report, the police indeed has obtained a chemist report over the impugned signatures. The Plaintiffs could have at least applied for the release of the chemist report (which was readily available) but instead the Plaintiffs simply abided by PW2’s reluctance to tender the chemist report on the ground that it was ‘classified’ and production of the same would somehow ‘impede’ on an ongoing investigation. [32] We are pressed to remark that the Plaintiff’s police report was lodged some NINE (9) YEARS AGO on 5.9.2014. It is profoundly odd and suspicious that closing into a decade into the police’s investigation, the police still was ‘not ready’ to divulge its findings vide the chemist report in which the police had already obtained. [33] In fact, if a chemist report has already been obtained almost a decade ago and the Police still remained silent without any action mounted against the 1st Defendant, then it is far more probable than not that the police themselves disbelieve of the Plaintiffs’ allegations. [34] We find it utterly suspicious that the Plaintiffs had not taken any action to insist upon the police to produce the chemist report. If the Plaintiffs were so confident and genuine in their allegation of fraud and forgery, then the Plaintiffs should have fought tooth and nail to have the chemist report to ‘unravel’ the 1st Defendant’s alleged misdeeds. [35] Thus, this was not a case where there was not any expert evidence available to be tendered into Court. This was a case where there was an expert chemist report but was withheld from the Court. We cannot reconcile with the Plaintiffs’ peculiar ‘surrender’ to just leave the chemist report to remain ‘classified’ after almost 10 years of ‘investigation’. [36] We understand that the Learned Judge fiercely relied upon the Federal Court’s decision in Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697 in supporting her decision to do away with expert evidence and simply consider the factum probans (the circumstantial evidence) surrounding the case. Indeed, we do not intend to contradict the Federal Court’s ruling that a handwriting expert is not the be all and end all evidence to prove forgery. However, the real depth of the Federal Court’s decision is not as simplistic. We have to properly examine the Federal Court’s ratio decidendi. The first relevant excerpt of the decision reads: “It is not necessary to examine a handwriting expert in every case of disputed writing. No adverse inference can be drawn against a party from the fact that the opinion of the handwriting expert HAS NOT BEEN OBTAINED… the principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, ie the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue, but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together, they form a chain of circumstances from which the existence of the principal act can be legally inferred or presumed’ (Woodroffe and Amir Ali Vol 2 at p 2236). ‘The modes of proof envisaged in ss 45 and 47 of the Act are not exclusive for proving the genuineness or authorship of a document’ (Woodroffe and Amir Ali Vol 2 at p 2237). Comparison may be made, by a handwriting expert under s 45 of the Evidence Act, by anyone familiar with the handwriting of the person concerned as provided by s 47 of the Evidence Act, or by the court itself. Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697.” (Emphasis added.) [37] The first limb of the Federal Court’s decision has already prescribed the first qualification upon the rule. And that qualification is no adverse inference can be drawn only if opinion of a handwriting expert HAS NOT BEEN OBTAINED. Thus, it still stands to good law and reason that adverse inference can still be drawn if expert evidence HAD INDEED BEEN OBTAINED BUT WAS WITHHELD from Court. And this was exactly the case in the appeal before us. It was not that the expert evidence had not been obtained but instead was withheld. The Plaintiffs knew that there was already a chemist report, but remained nonchalant as to the production of the same into the Court below. [38] It is an entirely distinct circumstance between: a. Consciously opting to not opt for handwriting expert in full belief of other circumstantial evidence surrounding the case; and b. Surreptitiously withholding a chemist report upon the signatures when the chemist report already existed and should have been made available for the Court’s benefit and scrutiny. [39] If a chemist report on the signatures has already existed, then the best evidence rule would dictate that the chemist report should be the best evidence that the Plaintiffs should have tendered into Court for examination at trial. The chemist report would then be the ‘best evidence’. [40] There was neither any evidence led by the Plaintiffs that any attempt was made to secure the release or ‘declassification’ of the chemist report. The Plaintiffs knew that the chemist report existed, and simply let it remain idle within the Police’s archives for almost a decade. There was not even a letter produced to show the Plaintiffs’ genuine attempt of securing the chemist report. It was resoundingly obvious that the Plaintiffs were disinterested in shedding light onto the truth by scientific means. [41] It is only when there was no expert evidence at all that the best evidence available to the Court would be the other evidence surrounding the case. Thus, it would be remiss if we were to let this glaring withholding of evidence by the Plaintiffs to remain unscathed. We must justly and appropriately draw the necessary adverse inference under Section 114(g) of the Evidence Act 1950 for the Plaintiffs’ failure and refusal to tender the chemist report especially when it was readily testified by their own witness that the chemist report was already in existence. We cannot stand by and accept the lacklustre excuse that the chemist report was still ‘classified’ after almost 10 years of ‘investigation’ into the authenticity of their signatures. It is only just and appropriate that the Federal Court decision in Letchumanan (supra) be distinguished from the case before us. [42] There is a stark distinction between not obtaining a chemist report and withholding the chemist report. In cases where a chemist report was admitted to be obtained (and yet was withheld), an adverse inference ought to be drawn for such inexplicable withholding of evidence. We accordingly refer to the case of Public Prosecutor v Mohd Nazrul bin Shuhaimi [2009] 6 MLJ 662 which had addressed a similar situation where a chemist report was admitted to be available, but the chemist was inexplicably withheld from the Court: “FAILURE TO CALL THE CHEMIST [21] More telling in this case is that the doctor conducting the post mortem had handed a number of samples to be analysed and the IO himself had seized certain items from the accused which were in fact sent to the Chemist Department yet the chemist who analysed the exhibits was not called to testify and neither was there proof that the chemist report was served on the accused. [22] I did not hesitate in this case in invoking an adverse inference against the prosecution under s 114(g) of the Evidence Act. In doing so I took heed of what was stated in the Federal Court case of Ghazalee bin Kassim & Ors v Public Prosecutor and other appeals [2008] 3 MLJ 473; [2009] 1 LNS 447 where it was stated as follows: The court will only invoke s 114(g) of the Evidence Act for failure to call a witness if it is of the opinion that the prosecution does so to withhold or suppress evidence which, if produced could be construed against the prosecution or otherwise in favor of the accused. The prosecution can also in the alternative, offer to the defence any witness which they do not wish to call. As to which witness the prosecution chooses to call is entirely up to them. Calling a wrong witness may be detrimental to their case. The same goes if they fail to call a material witness. This is where s 114(g) of the Evidence Act may be invoked by the court. [23] In this case the prosecution failed to explain the non-calling of the chemist and surely the chemist being a government servant should be easily available to testify. The prosecution might not necessarily be suppressing or withholding evidence unfavorable to them but in the circumstances of this case where the prosecution was relying on circumstantial evidence the chemist had to be regarded as a material witness.” (Emphasis added.) [43] For the sake of completeness, we shall continue to scrutinize the Learned Judge’s misplaced reliance upon the Federal Court’s decision in Letchumanan (supra). Now, the Federal Court in Letchumanan held that in absence (not in withholding) of expert evidence, the Courts can look into other factum probans or surrounding circumstantial evidence to identify the truth in an allegation of fraud or forgery. However, it is not at all true that this allowance was without any limitations or qualification. The following limb of the judgment prescribes another qualification and caution as to this allowance: “‘As a matter of extreme caution and judicial sobriety, the court should not normally, take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of the experts. But this does not mean that the court does not have any power to compare the disputed signature with the admitted signature. That power is clearly available under s 73 of the Act’ (Woodroffe and Amir Ali Vol 2 at p 2236). But ‘if the feature of writing and signature on the documents are SO GLARING, that the court can form an opinion by itself either way, further exercise under s 45 may virtually become unnecessary or futile’ (Woodroffe and Amir Ali Vol 2 at p 2248). That was practically said in Siaw Kim Seong v Siew Swee Yin (f) & Anor [2009] 1 MLJ 349, where the supposed signatures of the plaintiff did not match his admitted signatures upon a CURSORY VISUAL EXAMINATION, and where it was said by the Court of Appeal per Gopal Sri Ram JCA, as he then was, delivering the judgment of the court, that the trial judge ought to have acted under s 73(1) of the Evidence Act 1950 and made the comparison himself and that ‘had the judge undertaken such an examination he would have concluded, even without the aid of an expert, that the signatures appearing on the assignment and the transfer WERE PLAIN AND UNDISGUISED FORGERIES’. It should be clear enough that a finding of forgery could be made without the opinion evidence of a handwriting expert.” (Emphasis added.) [44] From the excerpt above, it is clear that the qualifications are as follows: a. The Court should as far as practicable, leave the matter to the wisdom of the expert; b. Even if there is the slightest of doubt, the Court should leave the matter to the expert; and c. The Court may do away with expert evidence only if the forgery was “SO GLARING” and by simple and “CURSORY VISUAL EXAMINATION” the signature appears to be “PLAIN AND UNDISGUISED FORGERIES”. [45] We have examined the Learned Judge’s judgment and we found no measure at all of any examination as to the discrepancy or at least degree of discrepancy in the alleged forgeries perpetrated by the 1st Defendant. Thus, it is unfortunately clear that the Learned Judge has failed to address her mind of these qualifications before her examination into the circumstantial evidence surrounding the case. This alone was an appealable error and failure of judicial appreciation of evidence. [46] Nonetheless we continue on to scrutinize the Learned Judge’s appreciation of the circumstantial evidence she so believed had discharged the Plaintiffs’ burden of proof. Upon reading the grounds of judgment, we identified the supposed circumstantial evidence that the Learned Judge had relied upon: a. The Learned Judge had disregarded and attached no value onto the Direct Evidence proffered by the 1st Defendant vide the independent testimonies of the governmental workers (legal clerks of the Land Office) and preferred the other supposed circumstantial evidence; b. The circumstantial evidence of the Surat Akuan, the Statement of Agreed Facts, and the Jadual 3 (“Documents”) being Part A Documents, means that the 1st Defendant already admitted the truth of the equal division of the Property to the 5 sisters to be not under any trust; c. The testimony of their common brother (PW4) corroborated the contents of the Surat Akuan and Jadual 3; d. The circumstantial evidence that the then surviving mother would not have relinquished her claim over the property if she truly was claiming beneficial ownership under the Trust; and e. The circumstantial evidence that the deceased did not leave a written will to evince his intention to create the supposed Trust. [47] It was very clear that the Learned Judge had affirmed the existence of fraud / forgery merely because the Documents leading to the equal division of the Property to the 5 sisters were part A Documents. It must be reminded that the factum of the equal division of the Property was never a disputed fact. It was indeed an admitted fact even by the 1st Defendant that the Property was equally divided to the 5 sisters’ ownership of 1/5th share each. [48] Thus, it was no dent or discredit against the 1st Defendant’s case to admit the facts and documents leading to the equal division of rights over the Property to the 5 sisters. Such an admission does not by any means prove and/or disprove the existence of fraud or forgery. Nor does it disprove the existence of the Trust held for the benefit of their then surviving mother. [49] As against the Statement of Agreed Facts, the Surat Akuan and Jadual 3, we must be minded that the entire saga behind the Property, is a family. Nothing in the disputations and relationship between the parties were strictly commercial and formal to any minute degree. Thus, the Learned Judge should not have rigidly interpreted the parties’ relationship as per these Documents too strictly to the words within the four corners of the Documents. This was a family and typical of families, many of its workings were by unwritten conventions and mutual unwritten understanding. [50] Indeed, the Surat Akuan evinced the then surviving mother’s intent to not claim registered proprietorship over the Property. But there were no express words to negate any intention of the trust. Proving relinquishment of registered interest does not at all automatically negate the existence of trust. Nor does relinquishing REGISTERED interest would automatically mean relinquishing BENEFICIAL interest over the Property. [51] This was the reason the Federal Court very recently upheld the existence of secret trusts within the legal framework of the nation in the case of Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun Yean & Anor [2020] 4 MLJ 581: “As a creature of common law, secret trusts OPERATED OUTSIDE THE FORMALITIES of the Wills Act 1959 as a form of inter vivos express trust in which the testator and trustee mutually agreed to form a trust relationship for the lifetime of the testator. Secret trusts were enforced to promote the main policy principle behind the Wills Act 1959, namely, to protect the testamentary freedom of testators”.(Emphasis added) [52] Thus, the absence of a written trust or will was not a be all and end all indication that the Secret Trust had never existed. If that shall be the case, then the entire concept of secret trust would have lost any meaning and significance. Of course, it remains incumbent upon the 1st Defendant to discharge her burden of proof to prove the existence of the Secret Trust. It was thoroughly and utterly wrong for the Learned Judge to find that non-existence of a formal will was fatal to the 1st Defendants’ case. The Federal Court in the same decision above defined secret trust as follows: “[27] Snell’s Equity (33rd Ed, Sweet & Maxwell, 2015), para 24– 023 at p 660 offers the following definition of secret trusts: A secret trust gives effect to the express intentions of a testator WHICH ARE NOT CONTAINED IN A WRITTEN DOCUMENT DULY EXECUTED AS A WILL. A will is a public document. The advantage of a secret trust is that the testator may use a will to implement his wish to establish a trust upon his death without disclosing the intended beneficiary or the terms under which he holds. “Secret trusts are a device by which the express intention of a person to make a testamentary gift may be enforced DESPITE the testator’s failure to comply with the formalities for the execution of a will or testamentary disposition under the Wills Act 1837. They demonstrate the rationale of preventing the fraudulent reliance on the statutory formalities as a justification for denying the enforceability of the secret trustee’s expressly undertaken obligations …” (Emphasis added.) [53] Thus, the Learned Judge’s finding of fatality against the 1st Defendant’s case even directly contradicted the very Federal Court decision in which the Learned Judge had relied upon in concluding her decision. A formally executed will was never a required element to prove a secret trust. [54] In fact, it was never the law that the only legitimate form of trust would be a formally executed express trust. It was recently restated that a trust may exist and may be proven despite there were no express written trust ever being executed. We refer to the recent decision in the case of Dato’ PB Ashok a/l PB Krishnan Pillai & Ors v Azrin Fazrina bt Jamri & Anor [2022] MLJU 495: [11] The Federal Court explained how trusts are created in Geh Cheng Hooi & Ors v Equipment Dynamics Sdn Bhd and other appeals [1991] 1 MLJ 293: “Trusts are either (i) express trusts, which are created expressly or impliedly by the actual terms of some instrument or declaration, or which by some enactment are expressly imposed on persons in relation to some property vested in them, whether or not they are already trustees of that property; or (ii) trusts arising by operation of law (other than express trust imposed by enactments) (see para 523 of 48 Halsbury’s Laws of England (4th Ed)). Trusts arising by operation of law could be constructive and resulting trusts. Although we would agree with the view that a trust should not normally be imported into a commercial relationship, yet we would hold that in cases such as those involved in these appeals the court could and should consider the facts to determine whether a fiduciary relationship existed. We therefore agreed with Mr Wong that in the present cases we must consider the circumstances concerning the relationship between the parties. We were satisfied and agreed with the learned judge that in the circumstances agreements themselves do not contain an express clause that the proceeds of sale would be held on trust, as it is clearly manifested in the agreements and the correspondence concerned that it was the intention of the parties that the Emporium or its outlets as licensors should, after deduction of the fees and commissions agreed to be paid to them, make over to the concessionaires or consignors all payments by third customers. We also agreed with the learned judge and Mr Wong that the principle in Re Hallet’s Estate should be applied to these cases and that the cash found in the tills of the various outlets and in the bank accounts as at 10 March 1987, are the subject matter of a trust or several trusts in favour of the concessionaires and consignors who can therefore trace the money there as well as to the proceeds of the sale to Inview Sdn Bhd.” [12] Geh Cheng Hooi made clear that: 12.1 trusts can arise by operation of law, that is, either a resulting trust or constructive trust; 12.2 the court needs to consider the relationship between the parties to determine whether there is a trust; 12.3 it is not necessary to have an express clause with the word trust in it as long as the correspondence or agreement concerned manifest an intention to create a trust.” (Emphasis added.) [55] Furthermore, the factum that the then surviving mother relinquishing registered interest over the Property does not at all disprove the existence of the Trust. On the contrary, if their then surviving mother did not relinquish her claim over the Property, then that insistence of her registered interest would in fact negate the existence of the Trust. But that was not at all the case in the Appeal before us. The then surviving mother proceeded to relinquish her claim in the reliance of and in the belief that her daughters would honour the Trust created by her late husband and her children. [56] In fact, if we were to go by the Learned Judge’s logic on the supposed ‘admission’ via the placement of the Documents in Part A, then the same logic should equally apply to fortify the Defendants’ case. It must be minded that the Land Title to the Property (which bears endorsement of the transfers under the MOT), and the Memorandum of Charge to the 3rd Defendant Bank were also classified as Part A Documents (“Defendants’ Documents”). Thus, by the same reasoning, the Learned Judge should have similarly found that the Plaintiffs have admitted to the truth of their signing of the MOT and the valid creation of the charge under the Trust. Thus, it is clear that the Learned Judge’s simplistic evaluation of the Documents and the Defendants’ Documents (based on their classification) was unfortunately erroneous. [57] Now, aside from the miniscule circumstantial evidence that the Learned Judge had considered, we have identified the other glaring direct and circumstantial evidence that the Learned Judge had failed to properly appreciate (which would have in fact proven the legitimacy of the signatures, the MOT, and the Secret Trust): a. The DIRECT EVIDENCE that two independent witnesses (who had attested the MOT) had positively identified the Plaintiffs’ signatures and confirmed the occurrence of the signature before them at their respective Land Offices; b. The circumstantial evidence that the other three (3) signatories of the transfer (the 1st Defendant, Suzie, and Lily) all supported the legitimacy of the MOT and the existence of the secret trust; c. The circumstantial evidence that for some unknown reason the Plaintiffs refused to make Suzie and Lily (who were also party to the Secret Trust and MOT) as parties to the Plaintiffs’ suit; d. The circumstantial evidence that for some unknown reason that the Plaintiffs refused to make DW6 as a party to the Plaintiffs’ suit despite DW6 being one of the brothers who bear witness to the signing of the impugned MOT which the Plaintiffs claim to be fraudulent; e. The circumstantial evidence that for some unknown reason the Plaintiffs refused to make other individuals who were ‘accessories’ to the alleged fraud as parties in the Plaintiffs’ suit; f. The circumstantial evidence that for some inexplicable reason the Plaintiffs were arbitrarily selective in prosecuting their claims against the personas allegedly involved in the alleged fraud and forgeries; g. The circumstantial evidence that the legitimacy of the signatures, the signing of the MOT before the independent witnesses (DW2 and DW4) were corroborated by the testimonies of Suzie and Lily (who were also signatories of the transfer of their shares to the 1st Defendant); h. The circumstantial evidence that the majority 3 out the 5 sisters (the 1st Defendant, Suzie, and Lily) all without complaints or resistance selflessly and willingly set into motion the creation of the charge to the 3rd Defendant Bank for the sake of monies to be given to their then surviving mother (and not for their own benefit); i. The circumstantial evidence that there was an unconscionably and inexplicably long delay of 22 years (from the initial equal 1/5th share ownership circa 1992) until the alleged ‘discovery of fraud’ before the Plaintiffs were ‘reminded’ of the rental income generated from the Property (being a shophouse); j. The circumstantial evidence that there was an unconscionably and inexplicably long delay of 22 years (from the initial equal 1/5th share ownership circa 1992) until the alleged ‘discovery of fraud’ that the Plaintiffs never actively asserted their rights or portions to the rental income from the Property; k. The circumstantial evidence that the Plaintiffs never saw it proper to actively pursue the declassification and release of the chemist report from the police for almost a decade since their Police report circa September 2014; l. The circumstantial evidence that DW2 (as a land office clerk in Kota Kinabalu) and DW4 (as a land office clerk in Tambunan) were independent witnesses who had no reasons to lie and had nothing to gain from the transfer of the siblings’ shares to the 1st Defendant; m. The circumstantial evidence that the Plaintiffs had never tendered any medical evidence or expert evidence to prove that DW4’s past head injuries and seizures would go as far as to impede DW4’s memories and capacity to testify as an independent witness; n. The circumstantial evidence that the Plaintiffs had never tendered any medical or expert evidence to prove that DW4’s past head injuries and seizures would go as far as to impede DW4’s positive identification of the 1st Plaintiff’s signature and the occurrence of the signing before him; o. The circumstantial evidence that for the past 22 years (from the initial equal 1/5th share ownership circa 1992) until the alleged ‘discovery of fraud’, the title over the Property had always remained within the safekeeping and possession of the then surviving mother; and p. The circumstantial evidence that for the past 9 years since the Plaintiffs’ police report, the Police still had not taken any actions against the 1st Defendant despite already having a chemist report in the police’s possession. [58] Now, even assuming the Learned Judge was right in disregarding DW2 and DW4’s independent direct evidence (which was indeed wrong) there was already a torrent of circumstantial evidence as listed above that would have supported the fact that the Trust indeed existed and that the MOT was valid as the Plaintiffs indeed had signed the MOT. [59] It was far too compelling for us to ignore the plethora of actions (as well as omissions) by the Plaintiffs themselves, the police, the parties’ mutual brother (DW6), the 3rd Defendant Bank, the other signatories to the MOT (being Suzie and Lily), and the then surviving mother who have all admitted and proven (on the balance of the probabilities) that the transfer of all the 5 sisters’ shares to the 1st Defendant and the Trust for the benefit of the then surviving mother was the ultimate truth of the matter. [60] Even without the independent direct evidence by DW2 and DW4, it was clear that the circumstantial evidence was beyond compelling for us to conclude that the Plaintiffs’ signature was indeed authentic and that the Property indeed was held on trust for their then surviving mother. [61] The fact that the Plaintiffs had for years remained ignorant and nonchalant about their shares in the Property (also the rental generated from the same Property), was utterly indicative that the truth tilts in favour of the Appellants’ narrative that the Property was held in trust for the benefit of the siblings’ then surviving mother. [62] It was outright unthinkable that the Plaintiffs would ‘sleep’ on their rights over the rent generated from the Property for so long that they had ‘forgotten’ this prime source of income that would prove to be very helpful to their financial woes. [63] It is infinitely more probable than not that all the siblings from the outset understood that they held the Property in trust for the sake of their then surviving mother. Following the same narrative, it is more probable than not that the siblings were all aware and were in unison to deal with their shares in accordance with the spirit of the Trust (and have their shares transferred to the 1st Defendant and later be charged to the Bank to obtain monies for the sake of their then surviving mother). The fact that a large majority of the loan monies were credited into the then surviving mother’s account lends further credence and legitimacy to the 1st Defendants’ narrative. [64] Thus, it would be a grave injustice for us to now allow the Plaintiffs to blow hot and cold and negate their prior admission as to the legitimacy of the MOT and the Trust created for the benefit of their then surviving mother. The Plaintiffs ought to be estopped from now denying the validity of the MOT, the charge, and the Trust in favour of their then surviving mother. [65] Suffice that we refer to the recent decision in Marzida bt Mansor v Lembaga Kumpulan Wang Simpanan Pekerja [2023] 4 MLJ 364 in which the Court of Appeal had restated the celebrated principle of estoppel against the unjust adoption of contradictory stances in a case: “[53] The Federal Court’s decision in the case of Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 has cautioned against such adoption of contradictory stances: When the parties to a transaction proceed on the basis of an underlying assumption either of fact or of law — whether due to misrepresentation or mistake makes no difference — on which they have conducted the dealings between them – neither of them will be allowed to go back on the assumption when it would be unfair or unjust to allow him to do so’.lt would facilitate moral decadence within our social structure. [54] Such approbating and reprobating of stances have also been cautioned against by the Court of Appeal in the case of Cheah Theam Kheng v City Centre Sdn Bhd (in liquidation) and other appeals [2012] 1 MLJ 761; [2012] 2 CLJ 16 which had held the following: In other words of Sir Nicolas Browne-Wilkinson VC in Express Newspapers Plc v News (UK) Ltd and Others [1990] 3 All ER 376 at pp 383–384: There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance. [55] It would be severely remiss and unbecoming of this court to allow the appellant to renege against the position it had taken for the past 13 years.” [66] Now, it is already clear that the Learned Judge had unduly preferred minute circumstantial evidence against a barrage of other critical circumstantial evidence which otherwise would have disproved the Plaintiffs’ claim. For the sake of completeness, we shall also briefly deal with the Learned Judge’s erroneous disregard of Direct Evidence. [67] DW2 and DW4 were land office clerks who attested the MOT. They stood to gain nothing at all from the transfer of the Property. The reason the Learned Judge chose to disregard their independent testimony was because: a. There were some discrepancies in DW4’s testimony and that DW4’s capacity was discredited as DW4 had seizures while testifying in Court; and b. There were some discrepancies in DW2’s testimony and it took extensive ‘prodding’ until DW2 ‘corrected’ his testimony to give positive identification of the Plaintiffs’ signatures. [68] As against the discrediting of DW4, we must remark that there was no medical evidence tendered before the Learned Judge that the head injury suffered by DW4 would go as far as to impede in DW4’s memory. Without the aid of any medical report or expert testimony, it was far too presumptuous of the Learned Judge to medically decide on the quality and veracity of DW4’s mind and testimony. [69] As against the discrediting of DW2, we are also minded that as at the time of testimony, DW2 was already at the old age of 70. It would be unjust for the Learned Judge to expect a perfect and solid testimony from a person of such elderly age. It would not even have been fair to expect the same from a spry young witness. [70] We have here two independent witnesses that was either unwell or elderly. That be the case, it should have been prudent and fair for the learned Judge to afford some margin of discrepancy and not strictly or simply discredit the independent witnesses’ entire testimony. [71] Although a smooth and seamless testimony is ideal, but reality of witness testimony rarely is ever ideal or perfect. The Federal Court had expressed the same sentiment on the realities of witness testimony in the case of Public Prosecutor v Datuk Haji Harun Bin Haji Idris (NO. 2) [1977] 1 MLJ 15: “In my opinion discrepancies there will always be, because every witness does not remember the same thing and does not remember accurately every single thing that happened ... I shall be most inclined to think that if there are no discrepancies, it might be suggested that they have concocted their accounts of what had happened or what had been said because their versions are too consistent. The question is whether the existence of certain discrepancies is sufficient to destroy their credibility. There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A court is fully competent for good and cogent reasons, to accept one part of the testimony of a witness and reject the other.” (Emphasis added,) [72] We also refer to the Federal Court decision in Lai Kim Hon & Ors v Public Prosecutor [SEE NOTE AT [1980] 2 M.L.J. X.] [1981] 1 MLJ 84 in which the Federal Court had mirrored the same sentiment: “Discrepancies will always be found in the evidence of a witness but what a judge has to determine is whether they are minor or material discrepancies. And which evidence is to be believed or disbelieved is again a matter to be determined by the trial judge based on the credibility of each witness. In the final analysis it is for the trial judge to determine which part of the evidence of a witness he is to accept and which to reject. Viewed in that light we did not consider it proper for this court to substitute its findings for that of the learned trial judge.” (Emphasis is added.) [73] In any case, the testimony of witnesses must be tested against the contemporaneous evidence available in Court. It should have been clear to the Learned Judge that (save for the limited circumstantial evidence relied upon by the Learned Judge) all other contemporaneous documents and surrounding facts and evidence would corroborate the narrative that the Defendants’ defence to be the solemn truth. [74] The failure of the Learned Judge to test the independent witnesses’ evidence against contemporaneous documents and surrounding evidence is in itself a failure of judicial appreciation into the evidence. We refer to a very recent Court of Appeal decision in Choong Shin Cheong v Suruhanjaya Syarikat Malaysia & Anor [2020] 5 MLJ 523: “Regarding the necessity of testing the veracity of witnesses’ testimony against the backdrop of contemporaneous documents in the face of conflicting evidence, it was settled law that in cases where there was conflicting evidence, it was the duty of the court to not only weigh such evidence on a balance of probabilities but it also look at all the surrounding factors and to weigh and evaluate contemporaneous documents that may tend to establish the truth or otherwise of a given fact.” (Emphasis added.) [75] The fact that the Learned Judge was aware that DW2 was able to correct his testimony should be an indication to the Learned Judge that DW2 was still able to reconcile his memories and recollections regarding the signing of the MOT. [76] Thus, since DW2 and DW4’s direct evidence should have been considered, it naturally follows that that the Learned Judge had wrongfully preferred circumstantial evidence over direct evidence which was readily available in Court. In fact, direct evidence as to signatures would prove to be even more probative than a handwriting expert. We refer to the Court of Appeal decision in Lee Ing Chin @ Lee Teck Seng & Ors V Gan Yook Chin & Anor [2003] 2 MLJ 97: “It is a well-established general guide to the judicial appreciation of handwriting evidence that where there is a sharp conflict between the direct testimony of a disinterested witness on the one side and that of a handwriting expert on the other as to the genuineness of the execution of a document, then it is a safe course for a court to prefer the direct evidence. Accordingly, the judge erred in not preferring the evidence of DW2 and DW3 to that of the handwriting experts (see pp 135I–136A, 137A–D, 138A); Newton v Ricketts [1861] 11 ER 731 followed.” (Emphasis added) [77] The Federal Court in Gan Yook Chin & Anor V. Lee Ing Chin & Ors [2004] 4 CLJ 309 had similarly endorsed the Court of Appeal’s decision to prefer and rely upon the testimonies of wholly disinterested witnesses: "Everything considered, we tend to agree with the observations expressed by the Court of Appeal in the following terms: Once the evidence of DW2 and DW3 is carefully scrutinized and tested against the probabilities of the case, it is apparent that they are wholly disinterested witnesses. Their evidence may be safely acted upon and ought to have been acted upon by the learned judicial commissioner. DW2 attended on the deceased, took his instructions, prepared a will in accordance with those instructions and attended to the execution and attestation of that will. DW2 and DW3, testified that the deceased was entirely lucid and mentally alert both at the time of giving instructions and at the time of signing the will. We find no good reason for these two witnesses to have concocted their story as neither of them had anything to gain from doing so..." (Emphasis added.) [78] In a similar manner, the Learned Judge should have preferred the independent direct evidence of the two disinterested witness over other miniscule circumstantial evidence she had erroneously preferred. [79] All of the above (in this part) considered, we hereby answer issue 1 in the NEGATIVE. The Learned Judge was unfortunately wrong in finding that the Plaintiffs have discharged their burden of proof (on the balance of probabilities) that they had never signed the MOT. [80] It was also erroneous of the Learned Judge to find that the Plaintiffs’ shares on the property had been unlawfully transferred to the 1st Defendant without the Plaintiffs’ knowledge by way of forged signatures. It was also wrong of the Learned Judge to find that the Property was not held on trust for the benefit of the siblings’ then surviving mother (now deceased). F. Issue 2: Whether or not the Learned Judge was correct in finding that the 3rd Defendant Bank was not a bona fide subsequent chargee for valuable consideration. [81] Considering our negative answer to issue 1, the entire question in issue 2 is already moot and academic. Since there was no forgery or fraud to impugn the MOT and transfer of the Plaintiffs’ shares to the 1st Defendant, then there shall not be any impediment to the valid creation of the charge with the 3rd Defendant Bank. [82] Nonetheless, we do remark that considering the facts of the case, and the available information that the 3rd Defendant Bank would have obtained from the searches it conducted, it would not have been clear to the 3rd Defendant bank that there might be any reason to go beyond the Land Title and the MOT. [83] The Learned Judge found issue when the 3rd Defendant Bank had approved the Loan ahead of the registration of the MOT. Thus, supposedly, the Loan was approved despite knowing that the shares in the Property have yet to be transferred to the 1st Defendant. [84] On the contrary, it was also in evidence that the Loan was granted with full disclosure of the impending transfers of all the 1/5th shares to the 1st Defendant. Thus, it was not at all conspicuous that the approval of the Loan was ahead of the registration of the MOT. The fact that both the MOT and the Memorandum of Charge was presented and registered at the same date of 22.8.2002 clearly proves that it was already within the 3rd Defendant Bank’s and all of the 5 siblings’ contemplation that the transfer of their shares was designed to facilitate the granting the Loan. [85] It is uncommon that a person holding beneficial interest over a property (although yet to be transferred that property) would have sufficient beneficial rights to deal with such property even before the interest was registered onto the title. We need only refer to the Court of Appeal decision in Besharapan Sdn Bhd & Ors v Agroco Plantation Sdn Bhd & Anor [2007] 1 MLJ 101: “On the authority of Borneo Housing Mortgage Finance Bhd v Time Engineering Bhd [1996] 2 MLJ 12, even though on the date of execution of the 1989 agreement the second and third appellants did not have any registered right or interest in the subject land that does not render the agreement which is otherwise valid and enforceable to be void or invalid. The second and third appellants at the material time have sufficient interest in the subject land to enter into a binding agreement by which they agreed to transfer the subject land when the title or interest in the subject has been registered in their names. In other words the parties agreed that the agreement will only become enforceable the moment the second and third appellants' right or interest in the subject land is registered under the Ordinance.”(Emphasis added.) (see also Malayan Banking Bhd v Mohd Affandi bin Ahmad & Anor and another appeal [2023] MLJU 2160) [86] The simultaneous presentation and registration of the MOT and Memorandum of Charge at the land office also proves that everything was above board. It is by no means uncommon for banks to approve loans ahead of time before actually registering the bank’s interest onto the collateral. In fact, it was also prudent of all the siblings to obtain the approval of the Loan so as to have certainty of the Loan so that the entire exercise of transferring their shares to the 1st Defendant was guaranteed to not be in vain. [87] Therefore, we agree with the counsel for the 3rd Defendant Bank that there was an absence of any adverse interest on the face of the Land Title and the MOT prior or during the registration of the transfer under the MOT. The same absence would also remain at the time the Memorandum of Charge was registered onto the Title. [88] In any case, it is already trite law that a chargee also falls within the class of ‘subsequent purchasers’ who would be afforded deferred indefeasibility of title over a property. Notwithstanding the existence of fraud in the prior immediate purchase, the 3rd Defendant Bank as bona fide subsequent chargee shall enjoy deferred indefeasibility of title. [89] We are conscious that there is no equivalent to section 340 of the National Land Code on indefeasibility in the Sabah Land Ordinance. Nevertheless, the reference to the Federal Court decision in See Leong Chye @ Sze Leong Chye & Anor v United Overseas Bank (M) Bhd and another appeal [2021] 5 MLJ 759 is relevant to underscore the position of the 3rd Defendant Bank as a bona fide purchaser: “The COA was correct to find that, on the facts, UOB was a subsequent purchaser. Heveaplast became an immediate purchaser when it was registered as the owner of the land pursuant to SPA1. In its capacity as immediate purchaser, Heveaplast created the UOB charges. Since a purchaser who acquired the interest from the immediate purchaser was a subsequent purchaser, it followed that UOB was a subsequent purchaser and the proviso to s 340(3) of the NLC applied. It was then only necessary to ascertain if UOB was a bona fide purchaser for value. If it was not, then its interest in the land under the UOB charges was defeasible and liable to be set aside.” (Emphasis added.) [90] Therefore, the 3rd Defendant Bank as subsequent chargee shall enjoy deferred indefeasibility and as there was no reason to believe that the 3rd Defendant Bank had acted in bad faith, we accordingly do not find any reason to deprive the 3rd Defendant Bank off of its deferred indefeasibility of title as subsequent chargee. [91] Thus, we similarly answer issue 2 in the NEGATIVE. The Learned Judge was wrong to find that the 3rd Defendant Bank was not a bona fide subsequent chargee enjoying deferred indefeasibility over the Property. G. OUR DECISION [92] All of the above findings considered, we hereby allow both of the appeals (Appeals S-01(NCVC)(W)-379-08/2020 and S-01(NCVC)(W)- 390-08/2020) and set aside the High Court order dated 17.07.2020. Therefore, the Plaintiffs’ claim against the Defendants stands dismissed with costs. [93] We also order that in respect of Appeal S-01(NCVC)(W)-390-08/2020) costs of RM70,000.00 here and below to be paid by the Respondents to the Appellant, subject to payment of allocatur. For Appeal S- 01(NCVC)(W)-379-08/2020, we order that the 1st and 2nd Respondents to pay the Appellant Bank costs of RM30,000.00 here and below, subject to payment of allocatur. Dated 19th October 2023 SGD -------------------- (AZIMAH BINTI OMAR) JUDGE COURT OF APPEAL Appeal S-01(NCVC)(W)-379-08/2020 For the Appellant - Messrs. MG’S Legal Chambers (Kota Kinabalu) Irene Vitus @ Caroline For the 1st and 2nd Respondents - Messrs. Michael Denis Tan & Co Wan Kher Ching For the 3rd Respondent - Jabatan Peguam Besar Negeri Sabah Appeal S-01(NCVC)(W)-390-08/2020 For the Appellant - Messrs. Sugumar & Co Chau Shin Yee For the Respondents - Messrs. Michael Denis Tan & Co Wan Kher Ching

Tika 2.6.0

JA-22NCvC-126-08/2019

PLAINTIF TAIMOKU CORPORATION DEFENDAN MUTIARA MOTORS PERFORMANCE PRODUCTS SDN BHD

whether the plaintiff is entitled to file this action based on the Seizure Order - whether the plaintiff is entitled to the sum of Japanese Yen 125,160,733.00 or any part thereof, for goods sold and delivered by M7 to the defendant - whether the plaintiff's claim is time barred pursuant to Section 6 of the Limitation Act 1953 - whether the debts of M7 including the sums claimed herein were lawfully and/or validly assigned to M7 USA LLC - whether any valid undertaking given by Taiichiro to the shareholders of M7 on 14.08.2012 bars of the filing of this action.

20/11/2023

YA Datuk Aslam Bin Zainuddin

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=38141fe8-4508-4490-8c9a-442087dc28ed&Inline=true

GOJ TOIMOKU Page 1 of 12 MALAYSIA IN THE HIGH COURT IN MALAYA AT JOHOR BAHRU IN THE STATE OF JOHOR DARUL TAKZIM CIVIL SUIT NO. JA-22NCvC-126-08/2019 BETWEEN TAIMOKU CORPORATION …PLAINTIFF AND MUTIARA MOTORS PERFORMANCE PRODUCTS SDN BHD (Company No: 441966-M) …DEFENDANT JUDGMENT [1] In this case the plaintiff claimed against the defendant for a sum of Japanese Yen 125,160,733.00 (RM4,928,932.42 as at 16 August 2019), general damages, the usual interest and costs. After a full trial, I dismissed the plaintiff’s claim with costs of RM30,000.00 and allocatur fees. The plaintiff being dissatisfied now appeals to the Court of Appeal. [2] The Plaintiff called two witnesses namely: (i) Suguru Hamada – SP1. (ii) Taiichiro Yamaguchi – SP2. The Defendant called two witnesses namely: (i) Shunsuke Takahashi – SD1. (ii) Mahathir bin Ahmad – SD2. 20/11/2023 12:46:00 JA-22NCvC-126-08/2019 Kand. 108 S/N 6B8UOAhFkESMmkQgh9wo7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 2 of 12 [3] The issues to be determined in this case are as follows: “i. Whether the plaintiff is entitled to file this action based on the Seizure Order; ii. Whether the plaintiff is entitled to the sum of ¥125,160,733.00 or any part thereof, for goods sold and delivered by M7 to the Defendant; iii. Whether the plaintiff’s claim is time barred pursuant to Section 6 of the Limitation Act 1953; iv. Whether the debts of M7 including the sums claimed herein were lawfully and/or validly assigned to M7 USA LLC; and v. Whether any valid undertaking given by Taiichiro to the shareholders of M7 on 14.08.2012 bars the filing of this action.” The Agreed Facts [4] The facts of the case as gleaned from the plaintiff’s submission is as follows: “The Parties i. The Plaintiff is a Japanese company in the business of, amongst others, export and purchase of vehicles and/or vehicle parts. The director of the Plaintiff is one Taiichiro Yamaguchi (PW2) (“Taichiiro”). ii. The Defendant is a private limited Malaysian company in the business of trading in motor accessories and spare parts, as well as the provision of workshop and cleaning services. S/N 6B8UOAhFkESMmkQgh9wo7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 3 of 12 The Goods Sold and Delivered to the Defendant by M7 Co Ltd i. M7 Co Ltd (“M7”) is a Japanese company that is in the business of selling and exporting automobile (both new and used) as well as automobile parts, lubricant and engine oil. In this regard: a. The shareholders of M7 consists of the following individuals: (i) Taiichiro Yamaguchi (PW2) – 30 shares (ii) Mokhtar Bin Datuk Hj Ahmad – 30 shares (iii) Mahathir Bin Datuk Hj Ahmad – 20 shares (iv) Mahani Binti Datuk Hj Ahmad – 20 shares b. Taiichiro was the former Representative Director and President of M7 from 25.05.2007 until 30.06.2019. ii. Between June 2009 to October 2013, M7 agreed to sell, and the Defendant agreed to buy, goods which included vehicle parts, engine oil and lubricants (the “Goods”). iii. The arrangement between M7 and the Defendant for the transaction mentioned above are as follows (the “Arrangement”): a. The Defendant would place orders for the Goods with M7 by way of email and/or telephone conversation; b. Pursuant to the orders, M7 will ship the Goods to the Defendant. To this end, M7 would issue invoices and packing lists to the Defendant to reflect the Goods sold and delivered; c. The carrier of the Goods would also issue a bill of lading to the Defendant specifying the Goods which have been delivered; and S/N 6B8UOAhFkESMmkQgh9wo7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 4 of 12 d. Pursuant to the invoices issued by M7, the Defendant was to make payment for the sums stated therein by way of international bank transfer. iv. For the period of June 2009 to October 2013, a total of 137 invoices were issued by M7 to the Defendant for the Goods (the “Invoices”). The total sum under the said invoices is ¥459,965,971. v. The Goods ordered by the Defendant were duly delivered pursuant to the Invoices and Arrangement mentioned above. vi. The Goods were also received by the Defendant without any objections or complaints. The Defendant has also never disputed the Invoices, packing lists and bills of lading. vii. However, up until the date of the filing of the present action, the Defendant has only made partial payments for the Invoices in the sum of ¥334,805,238, the last of which was on 09.10.2012. A sum of ¥125,160,733.00 remains due and owing. The Seizing of the Debts owed by the Defendant to M7 i. On 19.08.2016, the Plaintiff obtained a Payment Petition Claim No. 1283 (RO) 2016 against M7 from the Court located in Matsudo, Japan (the “Payment Petition”). In this regard: a. The Payment Petition required M7 to make payment in the sum of ¥168,424,638 (the “Outstanding Sum”) to the Plaintiff. ii. Despite the issuance of the Payment Petition by the Matsudo Court, M7 did not make any payment to settle the Outstanding Sum owed to the Plaintiff. S/N 6B8UOAhFkESMmkQgh9wo7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 5 of 12 iii. On 11.05.2018, the Plaintiff successfully obtained the Order to Seize Property No. 328 (RU) 2018 from the District Court in Matsudo, Japan (the “Seizure Order”) which allows the Plaintiff to seize the properties or any debts owed by third parties to M7, for the purpose of satisfying the unpaid sum in the Payment Petition.” Whether the Plaintiff can file this action pursuant to Order to Seize Property No. 328 (RU) 2018 dated 11.05.2018 from Matsudo District Court in Japan. [5] The defendant in its submission said as follows: “Status of Payment Petition, Seizure Order and Relevant Evidence i. It is obvious from the series of events as shown in paragraph 31 of the written submissions that the entire Payment Petition was schemed or devised by the Plaintiff with the sole purpose of then pursuing the Seizure Order against the Defendant. ii. This is especially since SP2 initially had appointed M/s Thomas Philip to act for M7 Co Ltd in issuing a Notice of Demand against the Defendant. iii. However, as the Defendant questioned his authority to act for the Defendant, SP2 did not proceed to file a lawsuit between M7 Co Ltd and the Defendant. Instead he, proceeded to submit the Payment Petition to the Matsudo District Court wherein he represented both the Plaintiff and M7 Co Ltd to admit the debt. iv. It is also suspicious due to the relevant fact that the purported loan was in breach of the letter of undertaking, and it is also suspicious due to the fact that these issues in relation to a loan from 2008 to S/N 6B8UOAhFkESMmkQgh9wo7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 6 of 12 2015 was not raised whatsoever in the Civil Suit B52NCvC-26- 04/2014 which involved SP2 acting as Taimoku Corporation and Mutiara Motors Sdn Bhd (wherein the majority shareholders are the same as M7 Co Ltd and the Defendant).” [6] The plaintiff cannot enforce the Payment Petition or the Seizure Order against the defendant based on the following: “i. The Defendant was not involved in the proceedings in Japan and was not represented in the proceedings in Japan; ii. As such, the parties in this current suit are not the same parties that were present in the proceedings in Japan; iii. DW1 confirmed multiple times in evidence that in the case of seizure order, the Japanese Court did not make any decision in relation to the claim between M7 Co Ltd and the defendant; iv. This is not a straightforward case wherein parties have fully litigated a claim in foreign court. As such, issue of res judicata and estoppel does not arise; v. The procedure for payment petition and seizure order does not comply with the principles of natural justice as SP2 had represented both the Creditor and Debtor in admitting the debt.” [7] The plaintiff has the burden of proving their claim against the defendant, which it has failed to do. This is not an action under the Reciprocal Enforcement of Judgments Act 1958 where a foreign judgment is applied to be enforced in the Malaysian courts. S/N 6B8UOAhFkESMmkQgh9wo7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 7 of 12 [8] The Malaysian Civil Procedure (White Book) 2018 edition states: “The Reciprocal Enforcement of Judgments Act 1958 (Act 99) applies to judgments given in the superior courts of reciprocating countries specified in the First Schedule to the Act (s 3(1)). RC 2012 Order 67 “relates to a judgment of a foreign court of a status equal to that local High Court”. Order 67 does not apply to the enforcement of an order for costs awarded by the Privy Council because before its abolition, the Judicial Committee of the Privy Council was the final court of appeal and formed part of the Superior Courts of Judicature of Malaysia: see Re P Suppiah (Tara Rajaratnam, Judgment Creditor) [1989] 2 MLJ 479 at 481; [1989] 2 CLJ (Rep) 532 at 535. The Reciprocal Enforcement of Judgments Act 1958 (Act 99) applies to foreign judgments or orders given or made in any civil proceedings or criminal proceedings for payment of a sum of money in respect of compensation or damages to an injured party and in the case of Commonwealth countries or territories, includes an arbitration award: s 2. A judgment is deemed final and conclusive even if there is an appeal pending against or if it subject to appeal (s 3(4)). A judgment in default is nevertheless a judgment within the Act: see Bank of New Zealand v Wong Kee Tat [1990] 2 MLJ 435; [1990] 1 CLJ 662. The fact of registration does not transform the judgment into a Malaysian judgment so that the court may sit to inquire into its regularity or validity for certainty or the want of it. If the judgment debtor wishes to impeach the judgment for uncertainty or irregularity or non-conformity with the rules of court (granting the judgment), he should proceed to do so in the original court: see Banque Nationale de Paris v Ting Kai Hoon [2002] 2 AMR 1549; [2002] 7 MLJ 703; [2002] 2 CLJ 429, HC; Bank of New Zealand v Wong Kee Tat [1990] 2 MLJ 435; [1990] 1 CLJ 662. For validity of an English judgment which was obtained after leave had been given to enforce an arbitrator’s award see Koninklijke Bunge NV v Sinitrada Co Ltd [1973] 1 MLJ 194. The foreign judgment must be that of a superior court other than a judgment of such a court given on appeal from a court which is not a superior court, and must be final and conclusive between the parties, adjudge that a sum of money (not being a sum payable in respect of taxes, other charges of a like nature or fine or penalty) is payable: Reciprocal Enforcement of Judgments Act 1958 (Act 99), s 3(3). The word “penalty” means a sum payable to the state by way of punishment and not a sum payable to a private individual, even S/N 6B8UOAhFkESMmkQgh9wo7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 8 of 12 though it is payable by way of exemplary damages: per Lord Denning MR in SA Consortium General Textiles v Sun and Sand Agencies Ltd [1978] 1 QB 279 at 299–300; [1978] 2 All ER 339, CA (Eng). A registered judgment for all practical purposes, becomes of the same force and effect as if it had been given by the Malaysian court: see Ferdinand Wagner (A Firm) v Laubscher Bros & Co (A Firm) [1970] 2 QB 313; [1970] 2 All ER 174 at 175, CA (Eng). A registered judgment, for the purpose of execution, is of the same force and effect as if the judgment had been a judgment originally given in the Malaysian court. Proceedings may be taken on a registered judgment and a sum for which a judgment is registered shall carry interest: Reciprocal Enforcement of Judgments Act 1958 (Act 99), s 4(2). No proceedings, other than proceedings by way of registration shall be entertained by the court: Reciprocal Enforcement of Judgments Act 1958 (Act 99), s 7. See Re A Judgment Debtor (No 2176 of 1938) [1939] Ch 601; [1939] 1 All ER 1. See also: The Bank of East Asia Ltd Singapore Branch v Axis Incorporation Bhd (No 2) [2009] 5 AMR 357 at 367; [2009] 6 MLJ 564 at 578; [2009] 5 CLJ 87 at 99–100, HC. A foreign judgment of competent jurisdiction must prima facie be respected, and the Reciprocal Enforcement of Judgments Act 1958 (Act 99) only regulates the manner in which the foreign judgments of reciprocating countries can be registered in Malaysia and gives full force for the purpose of executing the same: Sakuragawa Pump (S) Pte Ltd v Perkapalan Mesra Sdn Bhd [2007] AMEJ 0159; [2007] 7 MLJ 555 at 562. The Reciprocal Enforcement of Judgments Act 1958 (Act 99) does not prohibit the courts from recognising the judgments of foreign courts of competent jurisdiction, in whatever manner they think necessary and fit for the purpose of adjudicating any matter before the court and the court here has powers to declare the convenient forum to adjudicate the dispute: Evidence Act 1950 (Act 56), ss 40 – 44; Sakuragawa Pump (S) Pte Ltd v Perkapalan Mesra Sdn Bhd [2007] 7 MLJ 555 at 562; cf Petrodar Operating Co Ltd v Nam Fatt Corp Bhd & Anor [2014] 1 AMR 401; [2014] 1 CLJ 18 at para 21, FC; American Express Bank Ltd v Mohamed Toufic Al-Ozeir & Anor [1995] 1 AMR 253; [1995] 1 MLJ 160 at 166; [1995] 1 CLJ 273 at 280, SC. Section 4(1) of the Reciprocal Enforcement of Judgments Act 1958 (Act 99) provides that a judgment creditor under a judgment to which the Act applies may file an application to the High Court to have the judgment registered in the High Court. The application has to be made within six years after the date of the judgment, or where there S/N 6B8UOAhFkESMmkQgh9wo7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 9 of 12 have been proceedings by way of appeal against the judgment, after the date of the last judgment given in those proceedings. A foreign judgment cannot be registered under s 4(1) if, at the date of the application, (a) the judgment has been wholly satisfied; or (b) the judgment could not be enforced by execution in the country of the original court: s 4(1)(a), (b).” (Emphasis added) [9] The Matsudo District Court in Japan does not come within the definition of superior courts of reciprocating countries specified in the First Schedule to the Reciprocal Enforcement of Judgments Act 1958. Any subsequent legal proceedings to enforce the Seizure Order must be initiated in the Japanese courts as the matter comes within their jurisdiction. The Malaysian courts cannot enforce the Seizure Order as it does not come within the Reciprocal Enforcement of Judgments Act 1958. In my considered view the plaintiff should have pursued its claim in the Japanese courts as that is the proper forum to enforce the Seizure Order. The expert witness also confirmed that the Seizure Order is merely a first step for the plaintiff to file a claim in the Japanese courts against M7 Co Ltd and the defendant. It does not impute, ascribe or assign any liability on M7 Co Ltd or the defendant. [10] The cases quoted by the plaintiff in support of their submission to say that the Seizure Order is enforceable in Malaysian courts, namely the case of Sakuragawa Pump (S) Pte Ltd v Perkapalan Mesra Sdn Bhd [2007] 7 MLJ 555, is distinguishable from the present facts as the said case is about an application for stay of a winding up order under the Companies Act. Similarly the case of Tsang & Ong Stockbrokers (Pte) Ltd v Joseph Ling Kuok Hua [2001] 5 MLJ 256, is a case about service out of jurisdiction and not about the validity of the foreign judgment. In both the cases above, the foreign judgment was given by a superior court S/N 6B8UOAhFkESMmkQgh9wo7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 10 of 12 of competent jurisdiction. In our case here, the Matsudo District Court in Japan is not a superior court as defined under the Reciprocal Enforcement of Judgments Act 1958. The case of Teo Ka Fook v Loo Chiat Hui [2010] MLJU 0636; [2011] 1 CLJ 247, is a divorce petition where the wife had already obtained an order for dissolution of marriage in Australia. Furthermore all the cases quoted above are High Court cases and not binding on me. Loan between plaintiff and M7 Co Ltd [11] The plaintiff failed to show any loan documents for the said loan amounting to Yen 484 million which is a substantial amount by any standard. There was also no evidence of any demand made for the payment of the said loan from the plaintiff to M7 Co Ltd. The plaintiff’s claim is time barred under the Limitation Act [12] I agree with the submission of the defendant that the claim is time barred as far as the invoices dated before 19 August 2013, as the writ was only filed on the 19 August 2019. The defendant submitted as follows: “i. The Invoices in Bundle B are dated from 05.06.09 up to 30.09.13; ii. Writ of Summons was only filed on 19.08.2019; iii. As such, the cut-off date of 6 years pursuant to the limitation act means that any invoices dated BEFORE 20.08.2013 is time barred; iv. This means that all except for the last invoice dated 30.09.2013 is time barred; S/N 6B8UOAhFkESMmkQgh9wo7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 11 of 12 v. The Plaintiff cannot claim against the Defendant in reliance of the invoices before 20.08.2013 and as such, this claim must fail.” [13] Therefore based on what has been adumbrated above, I dismissed the plaintiff’s claim with costs of RM30,000.00 plus allocatur fees. Dated: 20th November 2023 Signed (ASLAM B ZAINUDDIN) Judge High Court in Malaya Johor Bahru Note: This judgment is subject to correction of typographical errors, grammatical mistakes and editorial formatting, if any. S/N 6B8UOAhFkESMmkQgh9wo7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 12 of 12 COUNSEL For the Plaintiff: Aliff Benjamin Suhaimi (Phoebe Loi Yean Wei with him) Messrs Thomas Philip Advocates & Solicitors No. 5-1 Jln 22A/70A, Wisma CKL Desar Sri Hartamas 50480 Kuala Lumpur For the Defendant: Datuk Hj. Khutubul Zaman bin SNS Bukhari Messrs Syarizad Zaman & Seah Advocates & Solicitors #5-05, Level 5, Menara TJB No. 9 Jln Syed Mohd Mufti 80000 Johor Bahru S/N 6B8UOAhFkESMmkQgh9wo7Q **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

CB-62D-221-09/2023

PENDAKWA RAYA Pendakwa Raya [Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara] TERTUDUH WAN MOHD KHALIL BIN WAN HAMZAH

PROSEDUR JENAYAH : Mengaku salah – sabitan ke atas 8 pertuduhan di bawah seksyen 15(1)(a) Akta Dadah Berbahaya 1952-sama ada sabitan teratur.RAYUAN : Rayuan atas hukuman – memasukkan dadah ke dalam badan sendiri – kesalahan berulang – sama ada hukuman setimpal dengan kesalahan. HUKUMAN : Hukuman di bawah seksyen 39C(2) Akta Dadah Berbahaya – sama ada hukuman penjara dan sebatan melampau – sama ada mitigasi tertuduh telah dipertimbangkan.

20/11/2023

Tuan Haji Jamaludin Bin Haji Mat

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=7fe8d3b9-f4a3-4c48-b48c-51f68b2b8819&Inline=true

20/11/2023 12:01:41 CB-62D-221-09/2023 Kand. 10 S/N udPof6P0SEy0jFH2iyuIGQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N udPof6P0SEy0jFH2iyuIGQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N udPof6P0SEy0jFH2iyuIGQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N udPof6P0SEy0jFH2iyuIGQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N udPof6P0SEy0jFH2iyuIGQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N udPof6P0SEy0jFH2iyuIGQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N udPof6P0SEy0jFH2iyuIGQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N udPof6P0SEy0jFH2iyuIGQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N udPof6P0SEy0jFH2iyuIGQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N udPof6P0SEy0jFH2iyuIGQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N udPof6P0SEy0jFH2iyuIGQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N udPof6P0SEy0jFH2iyuIGQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N udPof6P0SEy0jFH2iyuIGQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N udPof6P0SEy0jFH2iyuIGQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N udPof6P0SEy0jFH2iyuIGQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N udPof6P0SEy0jFH2iyuIGQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N udPof6P0SEy0jFH2iyuIGQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N udPof6P0SEy0jFH2iyuIGQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N udPof6P0SEy0jFH2iyuIGQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N udPof6P0SEy0jFH2iyuIGQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N udPof6P0SEy0jFH2iyuIGQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N udPof6P0SEy0jFH2iyuIGQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N udPof6P0SEy0jFH2iyuIGQ **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N udPof6P0SEy0jFH2iyuIGQ **Note : Serial number will be used to verify the originality of this document via eFILING portal ca—s2D—221—u9/2023 Kand. 1c 22,11/2:21,:-01 an mum MAI-IKAMAH SESYEN DI YEMERLOH, DALAM NEGERI PAHANG DARUL MAKMUR. 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PP[20U1] 1 cu 545 di ha\aman 553 m mana Mahkamah menyanaxan- 5 ‘Wise penghukumin adahh Ianeuk m all: hudxbmava mahkamah yang membmarnkin aamm kss Mamuman Iuaehul memmmym hak flan (anggungflwab samada akin bevsxkap mam llzu kuas. «am nummma leliebul nendaklah ullaksanakan menuvul pmuwnnsm pemlalan m nukuman yang le\ah mvanma pakax mama mv (Sna hm Pub/M: Prussculurv Khar/uadm {may 1 MLJ am Plmsvp Imd-mg-undxng ylng managallwindu vayuan temidap Is hukuman yang dualuhkan wen mahkamah yang membwcarakan nqrhm: kzlv seiualu Kai aaaxan was man palms d\nu|uskzn sobelum W Mankamah Rayuan milk am mengganggu dengan sesuam hukumnn y-Ina dusmnkan mallmlun Ianyz Hanan mxmumn hnhuwn dalam max keadaan Iasualu kss :» letsebul. hukumarl lzrszrml adaah (wampau man man man nlnupun dzlam memtapkan hukuman xersemn mihkamah man gagal secari mencukupv memmbarvy summ lakluv-likluv yang reievan iamada unmk auu (emmnp pesalah y-my berkenaan (sun I\|m|PublrcFrussc|m2rv Sulsmlan l:mAIvmId :5 [max 1 mm 74» Adam «am msmafll suam amahn yang mama bihawi Mamumm Rayuan udak axan mengubih scxullu hukuman nanya Karina wanya mungkm men.am»xan nukuman yang benaman Wa\au hagalmanapun hukumin Vang dqalulxan nendamah menahubangn m mum kepevmrlgln so awam flan kevenlmgnn terluduh (SH; final Pnbhc Pmspculm V Lon ChoanFa1L [max 2 mm 255; Dalam kas Lrm cuan Eng V uunmomnzw .W.am.w...M...w.w am. xxmzmuun-<nPa;:e12 aw uavmnvuszyflniwzwyuxeu «ma am n-nhnrwm be used m mm a. nrW\nnH|:I mm: dun-mm VII mum Wm! mm Fmsecmar (was; 3 cu 759 naxyn Gopal Sn Ram‘ HMR dlhm menylmpawkan kepmusan Mahkamah Rzyuan anm. n menyaukan sepem benkln Sulficl m say mat a court should‘ when senleucwu in accused, lake -nlo accnunl an cnnswdevllmns. velevam lo the case‘ name-ng me gravlly :1! In: cfllenoey the circumstances suvvuunflmg ma wnnnmn uH7Ie Mlenne ma anlecedenlx a4 ms aocuudy ma ueunenn erlecl man nIm|:hm:n| V: In nave, any laclm max wauanxs speaax m allanhun -wlhav m lawn! or agamsl Ihe accused Ind above an the Wbhc mleresl «mm mus! be amen «D. nnpamng a pamcular senlence In enzbla an zppsflale eounm ensuvsmal there naa been nu elvurm pnnmpxe “ 5 KESALAHAN SERIUS 25 Kemhalv kzpada kes terhadap Temmuh um, sayz mengamhn makmm Dahawa kesalahan yang duakukan oven Temmuh ada\ah sualu kesalahan yang senus flan mpandang mam uleh an Pammen yang menelapkan hukuman pemava nwuma 7 |amm dan bnleh sampal x3 lahun clan sebalan bmeh sampaw 5 sebalan m bawah seksyell seem Ana D-um amnhaya 1ns2 25 25 Paumlukan hukuman yang beral nu menunjukkan bahawa kesmahan yang dnakukan men Terluduh adalan senus a..m.. ......n....a..,.........n..n....... .....ma 1: .mmx vzxru N mwmavuszyflawzxyuweu ma Snr1n\nnnhnrw\HI>e used m mm .. nrW\nnU|:I mm: dun-mm wa .nuNG wrm FAKTOR MITIGASI 27 25. Du sampmg nu says yuga mempemmhangkan mmg:-1srTerIuduh Walau bagaimanapun, saya (Idak narnpax sebarang alasan yang munasabah drkemukakan hagw membenarkan Terluduh (ems mengmangv kesawahan yang sama nerurang kah saya menaapam mmgasl yang dlbsnkan men Termauh max bevmenl sama sekah. PENGAKUAN SALAH 29 so says yuga n-enganmu ma pengakuan salah Tenuduh yang |e|zh menwnatkan mas: aan kas pH1aK—p|hak yang Ierhhal Wa\au hagawmanapuny penganuan salah Tenuduh udak boleh menjadi iaklur mmgasw yang kua( dabm keadaan ax mana Tenuduh memang max msmpunyax apaapa pembelaan yuna kss um dvbuzarakan Mankaman Im mengambfl penaekatan sama Yaw sanagavnana dalam kes 11.: Ah Leng v. Public Proseculol [2004] 4 cm 77 dw mana VA Mokmav smm HMR menyalakan .....,,n,..n»a Page u syn uawmawuszyfinwzxyuweu Nuns saw n-nhnrwm be used m mm .. nrW\ruU|:I mm: dun-mm VI] .mm mm ’{1mnmuah u .5 an accepled mle av nuance mm m iuzusnd neman um maids gumyin an nnancn with wmm he has been margld . should In given . amum an (M xemenoe ma: wmm mums. haw been wmpcsed on m had he been 5 wnvlmed my 2 Incl. yei lheve are Imponam exaepuons to (Ms yer-em mu» Vndeed me onems under me Danaemus mugs Acl 1952 me exceplmus in nu: Ma‘ 32. Mahkamlh ml selaruulnya merumk kes PP v. Abdul Halim m lshak 4. saw ugi [2013] 9 cm 559 ax msna YA Mona Zawawl sauen HMR lelah menzamrkan pandangznnya sebagaxmana benkm 1211 mm am: mpemkakan mm kaszlahzn yang ws betkawan flengan dadah adalah memuakan sam kesaluhin Yani senus yani wen manganmm kzselamavan am katemamnun mam urn mm. n umum mm talan dunsylmirkan mm. mlmm number salu mg... men Kamaan um: (amm 155: meg-u, [Ike mahkaman memmmn 10 hukuman yang mvgan upaaa ialu kmuanan yang auexapxan melalm Farhmen sebafiav senus sudah um nethmiungnn sewammya (Idik mm flbenkan ken-Idn arm mum D.IL:m kes Vusmarm Sammdrn V PP (sum!) mahklmnh menagaskan Yha sevenly M unlanua un nmy :7. la vallacl :5 Parliament: mternum mil oolwldmn our bemg m pnnessmn at a large amount ov any mm ow plumbued druis mus! wmmensmale m we senlenoe \o be Passed on the pmnar Yacls Much case’ ¢..:m...m .».w....m..w.mM....». zmmun m.m.w..;2mg.-:5 sw mwmnmszyflnwzwyuxeu «ms smm ...m.mm be used m mm .. mm-y mm: dun-mm VII mum pm PESALAH TEGAR 33 saya ;uga memperumhangkan Vaklor hahawa sabflan kan Im bukamah kesalahan aenama Tertuduh Rekod samlan Iampau 3 Termduh aanagannana yang moanmnxan dalam ekshihil vs yang dlkamukakan dx Mahkamah menumukkan bahawa Tenuduh mempunyaw 12 szhilall kes jenlynh yang man. 1:) dnrirudunya xmkaiun dengan ken dadah sehelum ml Teldapal 1 samxan Vagi dahm kes c¢~s3n.533—as/2023 yang Io nelum mmasuxxan flalam Rekod Pusal Pendanaran Peruenayah K25 ml yuga berkanan dengan dadah 34 Rekad samn Vampau Tenuduh menuruukkan bahawa Terluduh merupakan pesa\ah Iegar, masm bemm Insa1 dan us masm belum senk weflaupun (elem berwang xan keluar masuk peruara Sohahaglan bent kaaalanan yang dllakukan wga adsflah berkanan dengan dadah mamanaya Berdasarkan rekod herakhlr memmjukkan Terluduh ham sahma selesal memalanl hukuman pemara se\ama 5 tlhun darn Iankh langkip 24: pada 256 2019 dan 1 sebalan dw bawah seksyzn Jncm Akta Dadah Eerhahayl I952 din masm mengulangw kasawanan yang sama as Oleh yang damisnan, szwajamya Tenuduh dwkenakan hukuman yang paung barax (. mzwnnv WwmwAAIAbnKNlMLiINAN>AM2A1 mm. Vvmlv/l7|p\|\)() Pigzliv syn uavmswsiyfinruzwyuweu -ma sum ...n.. M“ be used m mm a. nflmnnflly mm; m.n.n vn .nuNG wrm 35. Bevksnaan perkara ml, suka say: memeuk Kepmusin Mahkamah Rayuan dalam Kes FF v Muhnmmmi Fnix Faxil Mahmud [2016] 1 LNS 523 yang telah membenarkan rayuan pmak pendakwaan ks a|as hukumzn penjara 7 mum yang s dwkenakan aleh Ham Mahkamah Tlnggv bag: kesmahan dx bawah Seksyon amz) ADE I952 dan mengganllkannya dengan 10 Iahlm penjzra Mahkamah Rayuan menegaskan sepem benkut xu ‘1CI]AVIMpevusv\fiIhe Recmd ohinpul and hawug wtmoeted me subrmssrons by mm namss we had mmmmmy agveefl lt1a| me mpmnmannem on seven years as was meled am by Ina lenmod High Conn Judge wai manweslty mauequane no] Uppevmosl on our mu when danhrvg mm this sum M211 1: appnal .s the racist av puhm: rnlzres| A1 .5 mm. cnmmx law us pubhtly enfalmd mm In: raainn undenymq max pohcy has been mm . ulme mus| ha mu mm m such a my mac would— be nlfeuders wnmd be d:1eued1vom comrvullmg s-mum alience Grnnlau mat vehabilwalnon may Abe be 3 relevant ham m u. :a canudsred m deiervmg cases, me Count uwanably wm Venn m «mm cl meung mu .3 delanenl semanue taking min Iccoum lhe mm al aflenee um wix cammmed by ma Mlendel and me rampancy mum .n uflnrms Having wnsldetsd mm Iaclnrs the cum MU man m wnal me trend on senlenmw lav smvhav :5 ma nl mm (712! was bemg cunsmevea an apnea! would he hke Having um um me Cam .5 w:\l awave ma: lime u nu lush mung as a ‘one sue Ms ill ma cl ssrllancl fur an oIlen<2s The law pmwdes fur a range or ienlence wnmn which the Cnufl u smrmwelad la melt and an avbrounale iemences m depending an the mevanl laclors as me amumslanoes nl me Mn mm c .m..,... .:.M.....:..m... mm...“ ,.....m mm case may Dresenl [See ummuy ma nun no R V am n 951] 35 CrADp R 164 live mt-man wdgmnnlm HAlhu'yJ] [15] m lms use, he mmm Vzw an pumsnmem lo! the kmd M uflunm mmmmad M m. Raspondenl‘ as comamed under 5 mm». mm at the cm has browned rev 2 mnxnmum tenlenoe uY Iwe mlvrlsmmem {mm years] and . rmmmum mlbnsonmem cl me yum. an onlwltlvan ...a alm . mmmun or (en slmkas at live whlpramg In IN: we, the learned mgr. cm mg: mu vmwsad 2.. wmpnsunmem term an men In yum Havana sum-ma at me has an (ms case and m mvwrmlances iuvvoundmfi me mnussm. no the wane: and me mu lhi| me Resvomiem ma Dleaded gumy mm wzs a youwul nlvendm we were at an mnswdllsd vmw mal me Is ‘aimed Hmn Cmm Judgu nan sued m examww his msueuon m ;.a...ng such a slnlence ul Impvwsanmervl an me aewmmem u was dune avnarem \a us that mm H‘; Lanamv «am we aecaunl me Dublrc wens! is Ine pa...mm consnderanon. hewould not um meled am SUCH a sentence as 2» he me have wax no mvalmmi mum: gumiymg an avarly mm senlznce that was uumaa on ma Renpondenl m we Clll m Elvarvdulananda Jayatvlaku V pp mm 1 mm as, the wax Cowl had wcaswon lo saY ‘Hem <2» the Veamed ma! mm was mum“: m :5 nmwesamng me plan nl mummy. m Vavnur om. pulfllc mlemsl mm a dame m uprmld mm mm, and aulhonly ac irmlzwwnlhuu-:uvv1Iy' [15] Cunudenw the pun: Inleverl and me was on semewny luv wvular mm, m vwew ovme Vavge zmaunl ac Camuhns we so anveed wnh me learned on» mnl me senluxm hulng .pp..x.a swims! was mamieslvy wudeauata 4.. m. cllwmstancei We c....m.w,.,, |rmdLNII(A1IvAMLl\NWA>lIIAl|zlI zgnnmn n...m....;: was sm mwmnmszyflnwzwyuxeu mm. smm ...m.mm .. LAIQ4 w may he mm-y mm: dun-mm VII mum pm rud nan how an wmance mm name ounhl m be am mm m mvvlnusly decmtd cases and there was na mm. fur us «.7 depan Hum me pmaumg new man cauld 2;. mxcsinad mm m. samanang panem iafiawed by ms cm vn wvmav can 5 m range M senlenmnn (rm we nnlmed was belween ten to Imneen yams wmpnsnmmm mu gave us in was on what the ippraprlila samunce mm m be. mm; mm accoum me peculwllmes M nm em The amann| cl Cannabis m lms me wu 971 glimmas Thai amount had vewesemed mm: man In Ian times In; mveshold amount M so grimmrs mu woum may the opevalmn oi seclmn 5 ml me um 0:21 I: pmname my seclmn may ac me am. ACL Tn be exact n M: seventeen mm ave! mg ans?-om amaum m 50 grammes ‘mm aemmsxy would mum me unansness ohhe chem: The Is Ian max Dre Resaonunl had mended qullly In on charga flue! nut mean max ne was ermued m an imamlnc mdudmn m we senlenue «a he Vmposea semewann us umvaly .1 m. ducralmn of me Conn, unless me am me. wunny sllpmaled olnelwlve m the case oi Bacmk :9 Anawzmman V pp {zum} 2 cu 572 (“Bicmk mm mm... tau‘) :4 was min max‘ Iheve can therefore he no aummzuc me that a uuuhy me: on Its awn emnlss .n Iccusod In a ‘nu! pumsnmenl ~ mu w m aucuxed persun ‘s enlmed |a a teduwen such mduwan mull mwea lh: pecuhav :3 cvmumsunczs 07 me pamuflar use sn‘ any Ieduclmn av nmunca mm In Iachennmve u must he amply ....\mea try me axlenualmg cuvwmslannes al me use helm: m. semencma Com m shon. :| shmfld nm as lwavdofl avbnrinw. mm a mum be a pmduu av . mature exerclu at Mama! :9 dlscrelmu A. wt: um Dy this Com m the Eacmk bun mm Rihmin cue [supva] a my a redunmen ‘s MM a sum! ml: m =..mm..,.., :..m.....«......‘..W.....m.. wneax :)'KmADI7m1P:geI‘? sm mwmnmszyflnwzwyuxeu mm. smm ...m.mm .. LAIQ4 w may he mm-y mm: dun-mm VII mum pm max -m exemse oi II: mmenm. n mly rams: «a gun! any dIswunI' ml Hnwvg w consumed, we had come Va om unammws demsmn me: me Ienhenca or Impnsonmenl 0! seven years 5 uughl la be 5:! aude and m ns plane we run xmpnsed .n uupusnnmenl |evm oa Ken years m be eflectwe «am we dike cl ms anesl we had Elsa aeemea rm! 1.: mslum me xamanne at her: iltokes of me wmwme out was Impused by me lsamsd Hwgh Conn mg. We had thsvalmu 2Hcw4ed the ewes! by me m mm Pmseculnr 37 Berdasarkan kepadi nas-nas ax alas, saya bevpuas hall bahawa hukuman pelljam 10 uhun am 5 Iohnun yang fllkenakan u\eh Mahkamah ml auaxah se\an dengan kepmusan u Mahkamah Rayuan an auas yang menghendakl Mahkamah mengenakan hukuman yang heral hag: kesrkes yang memaaxkan kepermngan awam Hukuman pemara ID mum aaaran merupakan hukuman yang wayar drkenakan mzmandangkan sabelum ml on mempunyaw n sibltan Ialu :0 hugl kmlarun yang um: Hukuman sebalan sebanyak 5 kah zdalah wayav memandangkan oKr mempunyan 12 Iekod “mun lampau me\|ba\kan kesa\ahan—kesa\ahan Jenayah dan dadah zanbzznnan vuwuwwvawwnluzxwxuwxwwbnvzzv .,...n KMMMI/lH\/Pit wmunum.- um... umu m. as .. 1.... 2 bmemvu as Pcnlm u..r....... Susan» Jam... N........, Ibupcjlhu P-vhs s 0....» 1m... .1. ...x..... men): J......... .1. am... V..." Pnhtmg mm. .x,........... mm... ....L...... ......n.-.. ......... ..... ma... «.1... ........r. 1.... K... 'AMl>>4]l rwmr, .1... 'MF.TH/\MPHk».IAMI)»F. mm. .. um. ..a..n...... 9... u...z.r.... ......»... khycn Ismu. A... ........ a.....r.... N51 .1... mm. mm «mm... .m....... Scksyen xscuy Aku nan... n4....... ms: 2 ,.n. km. kuung ms Kngnh Ml ..., m .1... ,.L. mmm... kcsalahan ....... mm. ...»...u..... .4. am» scksym seal» Aku uadu. mmm. I952 4... 4...... 5.-....... sdsywu mam Akin ..... nuI<I;MAN sacm ADE I951: K...... mu.» ...x...u.. ............. ,....,... sclmvm Izmpoh .....a k......,; .1-...;m 7 umm lr.1.1p| mlak Vebnh ..... .3 um... um h=..a.mv. a.\=...u.. m..m... ..«... ....u kurrmg ) .¢....... nu... mhk man .5 mm... am .............a.... ........u.... p...,»......... ......... bempuvh mm L........ 2 mm... .1... mink um. 3 mum zn PENGAKUAN 5 Penuduhan dw alas Ielah mbicakun dengan levang dan gelas 25 keplda Tsrluduh dalam Bahasa Maiaysm yang awanam. oleh Tenuduh s Telluduh uengan sukavexa mengaku hersalall ke alas penuduhan Cersebul ..............m ............>...................,. ........ ............s. me: 5». ..p...m.sz..o.s..2....eu «w... 5.... .......wm .. ..... .. my .. ..«....u-. mm: dnuumnl VII murm pm... ‘rum RASA INSAF DAN BERTAUBAT 35. as An Walaupun da\am mmgaslnya, Terruflun ads menyalakan rasa kesa\ dan msai, |e(ap\ kelakusn om menunjukkan sebaliknya semnya bellau benir-benar mam sudah Ienlu nenau naax akin mengulangl kesalahan yang sama bemlang kalu Tambahan puli, Jxka auman kepada Iapnran Izngkapln benulkll zs.s.2o2: (P2), semasa on dflangkap‘ behau maapau memlllkl dadan horbamyn lanls syahu dengul unggann berai kasar use gum Fakli ml msnumukkzn bahawa om memang DEVIAIYI mahu msai aan bemm mahu senk walaupun Ielah hevulang kal: keluar masuk peruara Saya on dalam boveh mongzncam kesellmllln onmg ramal danpada pengaruh dadah yang albawsnya uu percaya, keberadaan masyarakzn Mankaman ml memjuk kes PP -/. Tah Ah cnmg [1975] 2 MLJ ma m mana VA Abdoul Cadev H telah menyalakan sepenl henkul ‘The vesponflenl -Iw um: lnrwivd m mx pin: m mmgauen me tact mal he .; employed and supparls an ma mother and sleubmlhars H: shomd M wurse have Ihnughl ol lms mm.- unmrmltmg we enemas and nut alter he .5 m cm Neidwng hardship ansmg «am we consequence: a! N: awn xcls inn 1 womd ve-male mm n ma mum pvewausny lo observe m anemer case lhai in uflanflar shomd nol emecl to exmte m >I«m1\/{I x1)cmAnIu.L my N uawmawsiyfiaiuzwyuweu um smm ...m.mm be used m mm .. mmuny mm: dun-mm VI] muNG pm lvamess any sympathy an -In nu. am. by xakmg max smut: M me xmpehmus yaum who kmsd ms pamuswrm an us and man pieaded m mmgahon max he ms an mam’ KEPENTINGAN AWAM TERFELIHARA 41 Saya pevcaya‘ kepenungan awam akan Veblh terpelmara nka Temmuh dxaslngkan aanpaua masyarakal dalam suatu lempch yang parljing 42 Tempnh pamemalaan yang pamang yuga diharapkan dapal memhanm Tenuduh umuk meluyakan nana dadah yang mungkm man menyaai darah daglng Terludnh. x5 43 Tempah pememaraan yang panjang jugs flinarapkan dapal memuluskan huhungan Tenuduh dengan rakan-rakan sepanyanayah yang Vain dan Terluflun dipil men)a¥anI prugram—prugram pemuluhan dengan aman :4; 44 Semuga se\epas mengxkuh proglankprogram yang telah dususun aemasa an peruara nanu dapal mengmsalkan Tenuduh dan memben peluang Kepada Tenuduh umuk bermuhassbah an: den bemhah kepafla seorang Insan yang Iebm bavk dan dapal memnggalkan dadah sepenuhnya j w>AwA>-!n!)¢KIM\Li\NV\AN will!» ...,a,, Vvmzyann a1Fa§LZZ 45 says yuga bemavap neuau mengamhu peluang semasa melualam pelbagav kernamran berfaedah yang bmeh dngunakan untuk mencan ang naran kehka mbehaskan danpada pemara nanlv hukuman peruara unluk mempe\aAar\ reze PELUANG MEMBAIKI mm 45 47. Semuga dengan (empoh pemenjaraan yang Lama W memhen peluang kepada Terluduh unluk nembzn dan mernpemam am memadi seovang warganegsra yang belguna aan menukav cara mdup kepaua yang lebm balk D1 nenjara yuga, Tenuduh berpeluang unluk oalayav nmu-umu akademik flan Hmu-Ilmu kemamvan kzndn secara lersusun bevsama pegawawegawav yang benaullah Adalah dmavapkany selepas dmebaskan danpada pamara narm, Tenuaun “will mm mm a new an den memhebaskan am dznpadz naiis uaaan sena menfadl senrzng insan baru yang lebrh produkm. menyayangl flan dwsayangv cleh anggma masyarakal )«H(. m..., mm N uawmawszyfiaiuzwyuweu ma s.nn n-nhnrwm be used m mm me nflmnnflly mm: dun-mm y.. muNG wrm RUMUSAN 49 D\ zkmr anahsls‘ saya berpendapzt hukumzn yang lelah fluamhkan ada\ah mengwkul um1ang»urIdarIg. wa;ar dan rmmasabah sen: senmpal dzngan kesalahan yang dilzkukan olsh Tenuduh Berlarikh pads 1Shb.Navemh:r 21123. Mahkamzh Secyen Temevloh. 1s Panzng Dunn Malunur. Fwhak-Pihzk: Fendikwl Ray: dlwukill oleh Pnan TPR wong, Fejzbal Timhalzn Fendakwz Raya, Yomallun. «V Enclk Kmlrul Nlnm mu Che vasln, Peguam YBGK mewakm Tenuduh. 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Tika 2.6.0 & Pytesseract-0.3.10

DA-12B-9-05/2022

PERAYU 1. ) CHE MUHAMAD HAKIMI BIN CHE HASSAN 2. ) MOHAMMAD AZRUL NIZAM BIN SAZALI RESPONDEN 1. ) NOR HAFIZZUDDIN BIN MOHAMED 2. ) MOHAMMED BIN HARUN

KEMALANGAN JALAN RAYA: Isu yang perlu diputuskan mahkamah (berdasarkan kepada keterangan yang dikemukakan semasa perbicaraan) - sama ada Pihak Perayu berliabiliti 100% - sama ada gantirugi am dan khas yang diberikan oleh L/HMS adil, munasabah, memadai untuk memampaskan Pihak Perayu dan tidak melampau - sama ada tuntutan balas Pihak Responden boleh ditolak - sama ada tuntutan penolakan gantirugi terhadap Perayu Kedua juga boleh ditolak.

20/11/2023

YA Dato' Roslan Bin Abu Bakar

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=702e1891-f221-4245-928d-022b03d93f9a&Inline=true

Microsoft Word - Appeal 12B-9-5-22 MVA Che Md Hakimi v NorHafzdn 1 DALAM MAHKAMAH TINGGI MALAYA DI KOTA BHARU DALAM NEGERI KELANTAN DARUL NAIM, MALAYSIA RAYUAN SIVIL NO: DA-12B-9-05/2022 ANTARA 1) CHE MUHAMAD HAKIMI BIN CHE HASSAN (seorang kanak-kanak yang mendakwa melalui sahabat wakil dan abang ipar yang sah, AHMAD BIN HADI) 2) MOHAMMAD AZRUL NIZAM BIN SAZALI (seorang kanak-kanak yang mendakwa melalui sahabat wakil dan bapa yang sah, SAZALI BIN MOHAMED) … PERAYU DAN 1) NOR HAFIZZUDDIN BIN MOHAMED 2) MOHAMMED BIN HARUN … RESPONDEN PENGHAKIMAN Pengenalan [1] Pihak Perayu memfailkan rayuan ini terhadap keputusan Hakim Mahkamah Sesyen yang terpelajar (selepas ini dipanggil “L/HMS”) berhubung dengan liabiliti dan sebahagian dari kuantum. Manakala Pihak Responden memfailkan rayuan balas terhadap keputusan L/HMS yang menolak tuntutan balas mereka dan penolakan jumlah gantirugi yang seharusnya dibayar kepada Perayu Kedua. [2] Perayu Pertama (Plaintif 1 dalam perbicaraan di Mahkamah Sesyen) pada masa material adalah penunggang motosikal bernombor PDP 8344. [3] Perayu Kedua (Plaintif 2 dalam perbicaraan di Mahkamah Sesyen) pada masa material adalah pembonceng motosikal berkenaan. [4] Responden Pertama (Defendan 1 dalam perbicaraan di Mahkamah Sesyen), pada masa material adalah pemandu motokar bernombor DCT 5414. 20/11/2023 16:21:35 DA-12B-9-05/2022 Kand. 31 S/N kRgucCHyRUKSjQIrA9k/mg **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 [5] Responden Kedua (Defendan 2 dalam perbicaraan di Mahkamah Sesyen), pada masa material adalah pemilik berdaftar motokar berkenaan dan merupakan majikan dan/atau prinsipal Responden Kedua. Fakta [6] Pada 21.7.2019 jam lebih kurang 2.20 petang, Perayu Pertama (dengan Perayu Kedua sebagai pembonceng) telah menunggang motosikal bernombor PDP 8344 dari arah SMK Hamzah 2 menghala ke arah Kampong Belukar (i.e. menghala ke arah Pasir Puteh). [7] Ketika motosikal berkenaan bergerak melalui bahu jalan menghala ke Pasir Puteh, berhampiran dengan satu Lorong di KM 5.5, Jalan Machang – Pasir Puteh, Pihak Perayu mendakwa motokar Pihak Responden yang datang dari arah Machang, secara tiba-tiba membelok ke lorong kanan jalan hingga berlaku pertembungan kedua-dua kenderaan tersebut. Prosiding di Mahkamah Sesyen [8] Setelah perbicaraan penuh berjalan, L/HMS telah memutuskan Pihak Perayu adalah 100% bertanggungan (liable). L/HMS juga telah menolak tuntutan balas Pihak Responden dan tolakan gantirugi terhadap Perayu Kedua seperti yang dituntut oleh Pihak Responden. Bagi tujuan melengkapkan prosiding perbicaraan, L/HMS juga telah memutuskan berhubung dengan gantirugi am dan gantirugi khas. Isu [9] Isu yang perlu diputuskan mahkamah (berdasarkan kepada keterangan yang dikemukakan semasa perbicaraan) adalah: (i) sama ada Pihak Perayu berliabiliti 100%. (ii) sama ada gantirugi am dan khas yang diberikan oleh L/HMS adil, munasabah, memadai untuk memampaskan Pihak Perayu dan tidak melampau. (iii) sama ada tuntutan balas Pihak Responden boleh ditolak. (iv) sama ada tuntutan penolakan gantirugi terhadap Perayu Kedua juga boleh ditolak. S/N kRgucCHyRUKSjQIrA9k/mg **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 Penelitian dan penemuan mahkamah [10] Setelah meneliti dan menimbangkan hujahan kedua-dua pihak, Rekod Rayuan dan alasan penghakiman L/HMS, saya mendapati: (a) isu liabiliti [11] Merujuk kepada keterangan SD1 (Responden Pertama), keterangan Pihak Perayu sendiri (SP1 dan SP2), hasil siasatan SP3 (Pegawai Penyiasat), Rajah Kasar serta kuncinya (eksibit P1 dan P1K), foto-foto tempat kejadian dan kerosakan kedua-dua kenderaan terbabit, saya mendapati: (i) Responden Pertama dan Pihak Perayu datang dari arah yang sama i.e. dari arah bawah ke atas berdasarkan Rajah Kasar (dari arah Machang ke arah Pasir Puteh). (ii) Responden Pertama memandu motokarnya bernombor DCT 5414 di atas bahagian jalan bertanda antara C dan B iaitu jalan raya utama. (iii) Perayu Pertama pula menunggang motosikal PDP 8344 (dan Perayu 2 sebagai pembonceng) di laluan antara D dan E. (iv) Apabila sampai di simpang jalan untuk ke jalan lama Machang – Pasir Puteh, Responden Pertama telah memastikan kenderaan yang datang dari arah hadapan dan bersebelahan (dari arah atas ke bawah dalam Rajah Kasar) telah tiada dan seterusnya membelok masuk ke kanan iaitu ke jalan lama Machang - Pasir Puteh. (v) secara tiba-tiba Pihak Perayu muncul di bahagian jalan antara D dan E dari arah bawah ke atas (dari Rajah Kasar) dan berlaku pertembungan dengan motokar Responden Pertama di mana motosikal berkenaan dilanggar di bahagian kiri. [12] Berdasarkan kepada penemuan-penemuan tersebut, saya berpendapat Responden Pertama telah pun mematuhi peraturan lalu lintas dan berhati-hati dalam pemanduannya. Pihak Perayu yang menunggang motosikal dengan melawan arus sepatutnya berhati-hati sebelum melintas persimpangan tersebut i.e. memastikan tiada kenderaan keluar masuk di jalan lama Machang – Pasir Puteh. [13] Saya bersependapat dengan penemuan serta keputusan L/HMS bahawa liabiliti Perayu Pertama adalah 100% dalam kemalangan ini dan tiada kecuaian di Pihak Responden. S/N kRgucCHyRUKSjQIrA9k/mg **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 [14] Perayu Kedua adalah an innocent party dan berhak dibayar 100% tuntutannya jika dapat dibuktikan Pihak Responden juga melakukan kecuaian sumbangan dalam kemalangan tersebut. Namun dalam kes ini liabiliti Perayu Pertama telah didapati 100%. Dengan itu tuntutan Perayu Kedua juga ditolak. [15] Oleh yang demikian rayuan Perayu Pertama dan Perayu Kedua terhadap liabiliti ditolak dan keputusan L/HMS dikekalkan. (b) isu kuantum [16] Sebelum memutuskan isu kuantum ini, saya telah merujuk kepada beberapa kes mantap berikut sebagai panduan iaitu: Ong Ah Long v Dr. S Underwood [1983] 2 CLJ 198: “It must be borne in mind that damages for personal injuries are not punitive and still less a reward. They are simply compensation that will give the injure party reparation for the wrongful act and not for all the natural and direct consequences of the wrongful act, so far as money can compensate...”. Wong Li Fatt William (an infant) v Haidawati bte Bolhen & Anor [1994] 2 MLJ 497: “In considering the issue of quantum of damages, I bear in mind that an award must be fair which means that there must be a proper compensation for the injury suffered and the loss sustained”. Ong Ah Long v Dr S Underwood [supra]: “It is well established principle that special damages, have to be specifically pleaded and specifically proved.... The reason that special damages have to be specially pleaded is to comply with its object which is to crystallize the issue and to enable both parties to prepare for trial”. S/N kRgucCHyRUKSjQIrA9k/mg **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 [17] Bagi tujuan melengkapkan rayuan ini, saya merujuk kepada item- item yang dirayu iaitu: Gantirugi am (atas dasar libiliti 100%) [18] Pihak Perayu Pertama menuntut: (i) closed fracture midshaft right femur with limping gait [19] Bagi item ini peguamcara Perayu Pertama menuntut sebanyak RM50,000, manakala peguamcara Responden menghujahkan sebanyak RM23,000. L/HMS telah memberikan gantirugi sebanyak RM30,000. [20] Dalam memutuskan award gantirugi am bagi item ini, L/HMS telah menimbangkan faktor-faktor bahawa kepatahan tulang femur telah bercantum semula, Perayu Pertama telah boleh melakukan tugas harian seperti biasa, kes undang-undang dan panduan dari Revised Compendium of Personal Injury Awards (selepas ini dipanggil “Compendium”). [21] Saya merujuk kepada laporan pakar Perayu Pertama dari Klinik Tegoh bertarikh 23.2.2020 (muka surat 195 – 200, Rekod Rayuan) di bahagian “Prognosis & Comment” yang merumuskan seperti berikut: “The fracture has united. From my examination it shows that he has reached Maximal Medical Improvement (MMI). [22] Saya juga merujuk kepada laporan pakar Pihak Responden berhubung dengan Perayu Pertama bertarikh 5.10.2020 dari Hospital Kuala Krai (muka surat 216 – 219, Rekod Rayuan) di mana pakar merumuskan: “Fracture of his right femur fracture has achieved union. No further treatment is required. He was able to perform daily task independently”. Laporan berkenaan juga telah mengesahkan bahawa: “He has achieved Maximum Medical Improvement (MMI).” [23] Kedua-dua laporan pakar iaitu dari Pihak Perayu dan Pihak Responden telah membuat kesimpulan yang sama. Dengan merujuk juga kepada panduan dalam Compendium, kes undang- undang, umur, keupayaan Perayu Pertama di masa hadapan, inflasi S/N kRgucCHyRUKSjQIrA9k/mg **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 dan kejatuhan nilai Ringgit, saya mendapati L/HMS telah memberikan suatu award yang munasabah, adil, tidak terlalu rendah dan mencukupi untuk memampaskan Perayu Pertama. [24] Oleh itu rayuan Perayu Pertama terhadap item ini ditolak dan keputusan L/HMS dikekalkan. (ii) muscle wasting [25] Bagi item ini pula, peguamcara Perayu Pertama menuntut sebanyak RM6,000, manakala peguamcara Responden menghujahkan sebanyak RM3,000. L/HMS telah memberikan gantirugi sebanyak RM4,000 setelah menimbangkan faktor-faktor ukuran muscle wasting (2 cm right thigh dan 1 cm right calf), Compendium dan kes undang-undang. [26] Saya meneliti kepada kedua-dua laporan pakar berkenaan yang mengesahkan berlakunya muscle wasting pada bahagian-bahagian tersebut. Laporan pakar Perayu Pertama juga menyatakan muscle wasting akan beransur-ansur hilang dengan rawatan fisioterapi. [27] Laporan pakar Perayu Pertama mengesyorkan rawatan fisioterapi sebanyak 30 sesi pada kadar RM80 satu sesi. Jika Perayu Pertama menghadiri kesemua 30 sesi ini, jumlah kosnya adalah RM2,400. Manakala laporan pakar Responden pula mengesyorkan rawatan di hospital kerajaan 3 – 4 kali seminggu selama 3 – 6 bulan dengan kadar RM10 satu sesi. Di hospital kerajaan pula kos untuk 4 kali seminggu selama 6 bulan adalah lebih kurang RM960. [28] Dengan merujuk juga kepada panduan dalam Compendium, kes undang-undang, umur, keupayaan Perayu Pertama di masa hadapan, inflasi dan kejatuhan nilai Ringgit, saya mendapati L/HMS telah memberikan suatu award yang munasabah, adil, tidak terlalu rendah dan mencukupi untuk memampaskan Perayu Pertama. [29] Oleh itu rayuan Perayu Pertama terhadap item ini ditolak dan keputusan L/HMS dikekalkan. [30] Pihak Perayu Kedua pula menuntut: (iii) left posterior cruciate ligament (PCL) injury grade 3 S/N kRgucCHyRUKSjQIrA9k/mg **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 [31] Bagi item ini peguamcara Perayu Kedua menuntut sebanyak RM30,000, manakala peguamcara Responden menghujahkan sebanyak RM20,000. L/HMS telah memberikan gantirugi sebanyak RM20,000. [32] Dalam memutuskan award bagi item ini, saya mendapati L/HMS telah menimbangkan bahawa Perayu Kedua telah dapat berjalan dengan normal, melakukan aktiviti harian tanpa bantuan, hanya mengalami kesakitan serta ketidakstabilan di bahagian lutut kiri, laporan pakar perubatan, kes undang-undang dan panduan dari Compendium. [33] Saya merujuk kepada laporan pakar Perayu Kedua dari Klinik Tegoh bertarikh 23.2.2020 (muka surat 201 – 206, Rekod Rayuan) yang merumuskan seperti berikut: “The left PCL injury causes discomfort upon climbing stairs due to knee instability. He should be advised for reconstruction surgery. He will need to pay around RM30,000 if done at private hospital.” [34] Laporan pakar Pihak Responden dari Hospital Kuala Krai bertarikh 5.10.2020 (muka surat 220 – 223, Rekod Rayuan) merumuskan lebih kurang sama dengan laporan pakar Perayu Kedua iaitu: “Fracture of his left tibial tuberosity has united. However, he has a right posterior cruciate ligament (PCL) laxity grade 3. He is able to ambulate with a normal gait and performs his ADL independently but he still has occasional pain and instability over his left knee. Since his left knee instability and pain is persistent and disturbing his daily tasks, he should be considered for surgical intervention, which is left PCL Reconstruction surgery. The cost of surgery is about RM10,000.” [35] Merujuk kepada laporan pakar kedua-dua pihak berhubung dengan keadaan Perayu Kedua masakini, adalah didapati Perayu Kedua memerlukan PCL Reconstruction surgery di mana kosnya di hospital kerajaan lebih kurang RM10,000 atau di hospital swasta lebih kurang RM30,000. [36] Dalam keadaan ini range kos pembedahan berkenaan adalah antara RM10,000 hingga RM30,000. Sehubungan itu saya berpendapat award yang diberikan oleh L/HMS sebanyak RM20,00 S/N kRgucCHyRUKSjQIrA9k/mg **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 adalah suatu award yang munasabah, adil, tidak terlalu rendah dan berupaya memampaskan Perayu Kedua. [37] Oleh itu rayuan Perayu Kedua terhadap item ini ditolak dan keputusan L/HMS dikekalkan. (ii) muscle wasting [38] Bagi item ini pula peguamcara Perayu Kedua menuntut sebanyak RM8,000, manakala peguamcara Responden menghujahkan sebanyak RM3,000. L/HMS telah memberikan gantirugi sebanyak RM5,000. L/HMS dalam memutuskan award tersebut telah menimbangkan ukuran wasting berkenaan dan panduan dalam Compendium. [39] Saya meneliti sekali lagi kepada laporan pakar kedua-dua pihak berhubungan dengan Perayu Kedua dan mendapati: (a) laporan pakar Perayu Kedua menyatakan hanya terdapat 3 cm muscle wasting pada left thigh. Ia akan beransur-ansur hilang dengan rawatan fisioterapi. (b) laporan pakar Responden pula menyatakan terdapat left thigh and calf muscle wasting tetapi tidak menyatakan ukurannya. Laporan pakar ini juga mencadangkan rawatan fisioterapi. [40] Laporan pakar Perayu Kedua mengesyorkan rawatan fisioterapi sebanyak 30 sesi pada kadar RM80 satu sesi. Jika Perayu Kedua menghadiri kesemua 30 sesi ini, jumlah kosnya adalah RM2,400. Manakala laporan pakar Responden pula mengesyorkan rawatan di hospital kerajaan 3 – 4 kali seminggu selama 3 – 6 bulan dengan kadar RM10 satu sesi. Di hospital kerajaan pula kos untuk 4 kali seminggu selama 6 bulan adalah lebih kurang RM960. [41] Dengan merujuk juga kepada panduan dalam Compendium, kes undang-undang, umur, keupayaan Perayu Kedua di masa hadapan, inflasi dan kejatuhan nilai Ringgit, saya mendapati L/HMS telah memberikan suatu award yang munasabah, adil, tidak terlalu rendah dan mencukupi untuk memampaskan Perayu Kedua. [42] Oleh itu rayuan Perayu Kedua terhadap item ini ditolak dan keputusan L/HMS dikekalkan. S/N kRgucCHyRUKSjQIrA9k/mg **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 Gantirugi khas [43] Perayu Pertama menuntut: (i) kos perubatan dan pembedahan masa hadapan a) kos fisioterapi b) kos pembedahan implant removal [44] Perayu Kedua pula menuntut: (i) kos perubatan dan pembedahan masa hadapan a) kos fisioterapi b) kos pembedahan reconstructive surgery [45] L/HMS telah membuat pertimbangan yang betul terutamanya bahawa Perayu Pertama dan Perayu Kedua sebelum ini iaitu semasa kemalangan, telah menjalani rawatan dan sembuh dengan sempurna di hospital kerajaan. Tiada keterangan yang dikemukakan bahawa mereka tidak mendapat rawatan yang tidak sempurna di situ. [46] Walau pun terdapat kes undang-undang yang memutuskan pesakit- pesakit seperti Perayu Pertama dan Kedua ini berhak mendapat rawatan yang terbaik pilihan mereka i.e. di hospital swasta, namun telah terbukti mereka telah mendapat rawatan dan sembuh dengan baik di hospital kerajaan. [47] Jumlah gantirugi ini telah diulas dan diputuskan seperti di bahagian gantirugi am tadi. Oleh yang demikian saya menolak rayuan Pihak Perayu terhadap gantirugi khas dan mengekalkan keputusan L/HMS. (c) isu tuntutan balas [48] Berdasarkan pliding Pihak Responden (muka surat 34 – 40, Rekod Rayuan), di bahagian “tuntutan balas dan tolakan terhadap Plaintif Pertama”, saya mendapati ianya adalah tuntutan balas sumbangan terhadap Perayu Pertama jika mahkamah memerintahkan Pihak Responden membayar gantirugi kepada Perayu Kedua dan bukannya tuntutan balas terhadap kerugian/kecederaan/kerosakan yang dialami Pihak Responden ekoran kemalangan itu. S/N kRgucCHyRUKSjQIrA9k/mg **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 [49] Dalam perbicaraan ini Pihak Perayu telah didapati bertanggungan 100% dan Perayu Kedua tidak dibenarkan menuntut gantirugi dari Pihak Responden. Oleh yang demikian tiada tuntutan balas yang boleh dibuat oleh Pihak Responden terhadap Pihak Perayu. [50] Dengan itu tuntutan balas Pihak Responden ditolak dan keputusan L/HMS dikekalkan. (d) isu penolakan gantirugi terhadap Perayu Kedua [51] Rayuan Pihak Responden berhubung dengan isu ini ditolak memandangkan telah diputuskan Perayu Pertama bertanggungan 100% dan Perayu Kedua tidak berhak mendapat bayaran atau sumbangan gantirugi dari Pihak Responden. Oleh itu keputusan L/HMS dikekalkan. Keputusan [52] Atas imbangan kebarangkalian, rayuan Perayu Pertama dan Kedua terhadap liabiliti dan sebahagian kuantum ditolak dan keputusan L/HMS dikekalkan. Atas imbangan kebarangkalian juga tuntutan balas serta tolakan yang dipohon Pihak Responden ditolak dan keputusan L/HMS dikekalkan. [53] Pihak Perayu diperintahkan membayar kos sebanyak RM8,000 kepada Pihak Responden dan tertakluk pada 4% alokatur. Bertarikh: 19 November 2023. (ROSLAN BIN ABU BAKAR) Hakim Mahkamah Tinggi Kota Bharu. S/N kRgucCHyRUKSjQIrA9k/mg **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 PIHAK-PIHAK: Bagi pihak Perayu: Tetuan Azhar Fazuny, No. F3, Lot 478, Seksyen 14, Jalan Bayam, 15200 Kota Bharu, Kelantan. Bagi pihak Responden: Tetuan Zaid Ibrahim & Co, Pt 1541, Taman Iman Jaya, Wakaf Che Yeh, 15150 Kota Bharu, Kelantan. S/N kRgucCHyRUKSjQIrA9k/mg **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

S-01(NCvC)(W)-379-08/2020

PERAYU Public Bank Bhd RESPONDEN 1. ) Fung Shaw Yiew @ Jellfer 2. ) Fung Siew Fa @ Emily 3. ) Registrar of Titles, Land & Surveys Department

Adverse Inference under Section 114(g) of the Evidence Act 1950 with respect of failure and refusal to tender existing evidence in court and failure to call witness to testify.

20/11/2023

YA Datuk Azimah binti OmarKorumYA Dato' Lee Swee SengYA Datuk Supang LianYA Datuk Azimah binti Omar

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=5ca5e11e-819d-496e-ad15-312ad3fb6e41&Inline=true

IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO.: S-01(NCVC)(W)-379-08/2020 BETWEEN PUBLIC BANK BERHAD … APPELLANT (NO. PENDAFTARAN: 6463-H) AND 1. FUNG SHAW YIEW @ JELLFER … 1ST RESPONDENT (NO. KAD PENGENALAN: 610515125012) 2. FUNG SIEW FA @ EMILY … 2ND RESPONDENT (NO. KAD PENGENALAN: 690702125230) 3. REGISTRAR OF TITLES LAND AND SURVEYS DEPARTMENT … 3RD RESPONDENT HEARD TOGETHER WITH IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO.: S-01(NCVC)(W)-390-08/2020 BETWEEN FUNG LEE MEE @ JELLSIE … APPELLANT (NO. KAD PENGENALAN 680702-125388) AND 1. FUNG SHAW YIEW @ JELLFER … 1ST RESPONDENT (NO. KAD PENGENALAN: 610515125012) 2. FUNG SIEW FA @ EMILY … 2ND RESPONDENT (NO. KAD PENGENALAN: 690702125230) (IN THE MATTER OF ORIGINATING SUMMONS NO. BKI-22NCVC-97/8- 2017 IN THE HIGH COURT IN SABAH AND SARAWAK AT KOTA KINABALU) BETWEEN 1) FUNG SHAW YIEW @ JELLFER (NO. KAD PENGENALAN: 610515125012 2) FUNG SIEW FA @ EMILY (NO. KAD PENGENALAN: 690702125230) … PLAINTIFFS AND 1) FUNG LEE MEE @ JELLSIE … 1ST DEFENDANT (NO. KAD PENGENALAN: 680702125388) 2) REGISTRAR OF TITLES, LANDS AND SURVEYS DEPARTMENT …2ND DEFENDANT 3) PUBLIC BANK BERHAD …3RD DEFENDANT (NO. PENDAFTARAN: 6463-H) CORUM LEE SWEE SENG, JCA SUPANG LIAN, JCA AZIMAH BINTI OMAR, JCA JUDGMENT OF THE COURT A. INTRODUCTION [1] The two Appeals before us concern a claim by two co-beneficiaries (“the Plaintiffs”) against another co-beneficiary (“the 1st Defendant of a property left by their deceased’s father (“the deceased estate”). The Plaintiffs alleged that the 1st Defendant had unlawfully transferred their collective 2/5th shares (each of the Plaintiffs owns 1/5th share) of the deceased’s estate’s property to her name. It was also alleged that subsequent to the transfer, the 1st Defendant had wrongfully charged the Plaintiffs’ shares on the property together with their 1/5th share each on the property to secure a personal loan of RM220,000.00 from the bank (“the 3rd Defendant Bank”). [2] The 2nd Defendant in this action is the Registrar of Titles, Lands and Surveys Department. They were sued as a nominal Defendant for purposes of execution of any consequential orders made by the court if at the end of the case the Plaintiffs were to succeed in their claim. At the High Court, the learned State Counsel who appeared for the 2nd Defendant had placed on record that they would not be taking part in the trial of the action and would abide by the decision handed down by the court. B. BACKGROUND FACTS [3] For a better understanding of the matter at hand, it is necessary to set out the facts of the case that has led to the present Appeals before us. The Plaintiffs (Fung Shaw Yiew @ Jellfer - 1st Plaintiff) and Fung Shaw Fa @ Emily - the 2nd Plaintiff) and the 1st Defendant (Fung Lee Mee @ Jellsie) are siblings. They have two (2) other sisters namely; Fung Lee Lee @ Lily Fung (“Lily”) and Fung Siew Yee @ Suzie Fung (“Suzie”). [4] As we have mentioned earlier, the dispute in this matter relates to a property left by the late Fung Sing Wah @ Ah Sing who was the late father of the Plaintiffs, the 1st Defendant as well as Suzie and Lily who were not parties this suit. Fung Sing Wah @ Ah Sing had passed away on 8.11.1991. The property is a double-storey corner commercial shophouse located at Lot 26, Cameron Villa, 3.5 mile, Jalan Penampang situated in the District of Kota Kinabalu and held under Country Lease No. 015328471 (“the Property”). [5] By an Order of Succession (“Jadual Tiga”) issued by the Mahkamah Anak Negeri Kota Kinabalu under Native Court Case No. 192/92 and registered by the Registrar of Titles under Memorial No. 10285510, the two Plaintiffs Jellfer and Emily, the 1st Defendant (Jellsie), Lily and Suzie were registered as equal co-owners of 1/5th share each of the Property. [6] The 3rd Defendant Bank (Public Bank Berhad) is the chargee over the whole of the Property in dispute. The 3rd Defendant Bank was not a party to the dispute between the Plaintiffs and the 1st Defendant, until after conclusion of trial when it was revealed that a charge was subsisting over the Property in favour of the 3rd Defendant Bank. [7] The Learned High Court Judge was of the view that although the Plaintiffs' action was only in respect of their respective 1/5 shares in the Property, but since the charge was over the whole of the property, therefore the rights of the 3rd Defendant Bank were likely to be affected by the outcome of the trial in the event the Court should rule in favour of the Plaintiffs. The High Court had therefore, on 11.10.2019, invoked Order 15 rule 6(2)(b)(ii) of the Rules of Court 2012 and ordered that the 3rd Defendant Bank be made as a party in this action. [8] It remains clear to us that as far as the Plaintiffs are concerned, they firmly stood on the position that although being the co-proprietors of the Property having an equal 1/5th share each, they purportedly claimed that they were unaware that the said Property was wholly transferred to the 1st Defendant. The Plaintiffs also asserted that they were unaware that subsequent to having the property solely under her name, the 1st Defendant had obtained a personal loan of RM220,000.00 for her benefit from the 3rd Defendant Bank. As security of the said loan, a registered charged was effected on the Property in favour of the 3rd Defendant Bank. It was also the pleaded case of the Plaintiffs that they had never signed the Memorandum of Transfer (“MOT”) transferring their shares to the 1st Defendant and the signatures appearing on the MOT for the said transfer were not theirs. [9] On the contrary, although not disputing that Property was previously registered under the names of the Plaintiffs, the 1st Defendant, Lily and Suzie (as equal co-proprietors by virtue of the Jadual Tiga), the 1st Defendant’s pleaded case was that the five registered proprietors were holding the Property as trustees for the benefit of their then surviving mother, Wong Nyet Ting via a trust created by their late father prior to his demise (Trust / Secret Trust). [10] The 1st Defendant further asserted that out of the RM220,000.00 loan monies that she received from the 3rd Defendant Bank, the sum of RM170,000.00 was given to their then surviving mother by crediting the sum into her Public Bank Account No. 4979349606 jointly held with Lily on 4.9.2002. [11] In her retaliation of the Plaintiffs’ claim against her, the 1st Defendant had counterclaimed against the Plaintiffs for general damages for malicious prosecution and abuse of legal process. [12] The 3rd Defendant Bank had refuted the Plaintiffs’ claims against the creation of the Charge over the Property. The 3rd Defendant Bank staunchly asserted that notwithstanding the fact they knew (from their land search conducted and endorsements on the title prior to granting the loan facility to the 1st Defendant) about the relationship of the five siblings in relation to the inheritance of the Property, they vehemently denied that the transfer of the Plaintiffs’ shares in the Property to the 1st Defendant (and even the charge on the property executed by the 1st Defendant) were carried out without the knowledge of the Plaintiffs, Suzie, and Lily. [13] The 3rd Defendant Bank also denied that it had colluded with the 1st Defendant to cover up any alleged forgery. The 3rd Defendant Bank pleaded that the bank is a bona fide chargee, holding indefeasible title on the property for valuable consideration. [14] Now, it is to be noted that the Plaintiffs’ action originally began as a siblings’ dispute over their deceased father’s property. However, following the addition / the inclusion of the 3rd Defendant Bank as a party, the action is now inter-twined with the issue whether or not the 3rd Defendant Bank’s title or interest over the Property as subsequent chargee was indefeasible as a bona fide chargee for valuable consideration. THE 1st DEFENDANT'S DEFENCE AND COUNTERCLAIM [15] The 1st Defendant pleaded that although the Property was previously registered in their names as equal co-owners pursuant to the Order of Succession (Jadual Tiga) issued by the Mahkamah Anak Negeri Kota Kinabalu on 10.03.1993, the 1st Defendant, Lily, Suzie and the Plaintiffs were in actual fact holding the Property on trust created by their late father before he passed away for the benefit of their mother, Wong Nyet Ting @ Ahut. [16] The 1st Defendant denied that the MOT was not signed by the Plaintiffs and further pleaded that all of the 5 sisters did so at the direction of their then surviving mother in a family meeting held after they discovered that the Plaintiffs had attempted to sell off the Property to a third party for the sum of RM160,000.00 without her knowledge or consent. The 1st Defendant further stated that the Plaintiffs had executed the MOT in front of 2 attesting witnesses working with the Lands and Surveys Department at the material time. [17] After the transfer, the 1st Defendant charged the Property to the 3rd Defendant to secure a loan amounting to RM220,000.00 (amount of which was released to the 1st Defendant on 29.8.2002). A sum of RM170,000.00 from the loan amount was remitted by the 1st Defendant to their late mother by crediting the monies into her Public Bank Account No. 4979349606 jointly held with Lily on 04.09.2002. [18] The 1st Defendant counterclaimed for general damages for malicious prosecution and abuse of legal process. THE 3RD DEFENDANT’S DEFENCE [19] The 3rd Defendant Bank pleaded that by a letter of offer dated 22.07.2002, it had granted a credit facility of RM220,000.00 to the 1st Defendant for the purpose of "personal consumption". The credit facility was secured by a charge over the Property in favour of the 3rd Defendant Bank. [20] While admitting to having knowledge of the relationship between the 5 sisters’ inheritance of the Property (based on the land search conducted and endorsements on the title of the Property prior to granting the credit facility to the 1st Defendant) the 3rd Defendant Bank denied that the transfers from the Plaintiffs to the 1st Defendant (and the creation of the charge) were made without the consent or knowledge of the Plaintiffs, Lily and Suzie. [21] The 3rd Defendant Bank further denied colluding with the 1st Defendant to cover up any alleged forgery and pleaded that it was a bona fide subsequent chargee of the Property for valuable consideration. [22] We noted from the Learned Judge’s grounds of judgment that in determining the action before her, she was guided by the agreed issues which the parties had set out in Enclosure 95 filed by the Plaintiffs’ solicitors. The agreed issues were namely; (a) Issues between the Plaintiffs and the 1st Defendant: (i) Whether the Plaintiffs' 1/5 undivided shares each in the Property and duly registered on 28.06.1993 under Memorial No. 10285510 pursuant to an Order of Succession from the Mahkamah Anak Negeri in the matter of the estate of Fung Sing Wah @ Ah Sing under Native Court Case No. 192/92 are lawful inheritance for their own benefits or conversely, as contended by the 1st Defendant, given to the Plaintiffs along with the 1st Defendant and 2 other sisters namely Lily and Suzie on trust for the benefit of their mother, Wong Nyet Ting @ Ahut; (ii) Whether the Plaintiffs did sign the MOT purporting to transfer their respective 1/5 undivided share in the said Property to the 1st Defendant on the direction of their late mother, the said Wong Nyet Ting @ Ahut as contended by the 1st Defendant or the MOT was not executed by the Plaintiffs and was effected without their prior knowledge and approval, (iii) In the event the answer to issue 2 above is the MOT was not executed by the Plaintiffs and was effected without their prior knowledge and approval, whether the registration of the 1st Defendant as the transferee of the Plaintiffs' shares in the Property and duly registered as Memorial No.10405428 on 22.08.2002 and the subsequent charge by the 1st Defendant to the 3rd Defendant Bank and duly registered as Memorial No. 10405429 on 22.08.2002 are liable to be set aside on the ground that the MOT was an invalid or vold instrument; and (iv) Whether the 1st Defendant is liable to make restitution to the Plaintiffs and in damages and if so, what measure of damages. (b) Issues between the Plaintiffs and the 3rd Defendant Bank (i) What is the effect of the said Charge of the 3rd Defendant in the event the Court finds the instrument of transfer dated 22.08.2002 purportedly to transfer the 1st and 2nd Plaintiffs' 1/5 undivided shares each in the Property to the 1st Defendant to be invalid or a nullity; and (ii) Whether the said Charge confers on the 3rd Defendant Bank an indefeasible title or interest in the Property upon registration or conversely, liable to be set aside at the instance of the 1st and 2nd Plaintiffs as the rightful owners of the 1/5 undivided shares each in the Property. C. BEFORE THE HIGH COURT [23] At the conclusion of the trial, the Learned Judge had found in favour of the Plaintiffs where the Learned Judge held that the Plaintiffs had successfully proven their case on the balance of probabilities against the 1st Defendant and the 3rd Defendant Bank. The Learned Judge thereby allowed the reliefs claimed by the Plaintiffs in their Amended Statement of Claim namely; amended prayers 1(i), (ii) and (iii), 2 (ii), (iii) and ordered the 1st Defendant and the 3rd Defendant Bank to pay costs to the Plaintiffs. [24] The Learned Judge had dismissed the 1st Defendant’s counterclaim against the Plaintiffs. [25] From her grounds of judgment, we identified that the Learned Judge had primarily allowed the Plaintiffs’ claim on the following grounds: a. Although the Plaintiffs did not call any handwriting expert during trial to support their pleaded case for alleged forgery, guided by the decision in Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697 (“Letchumanan”), the Learned Judge concluded that on the totality of evidence, the Plaintiffs had proven the following on the balance of probabilities: i. the Plaintiffs’ shares in the Property were lawfully inherited from their father’s estate and that the Property was not held on trust; ii. the Plaintiffs did not sign the MOT dated 20.2.2002 to transfer their respective shares in the Property to 1st Defendant. b. The Learned Judge had arrived at the above conclusion based on the following reasons: i. Paragraph 2 of the Statement of Agreed Facts mutually admitted to the equal distribution to the 5 siblings while the letter issued by the Kota Kinabalu Native Court dated 10.3.1993 to the Lands & Surveys Department (enclosing Jadual) 3 also ordered that the Property be distributed in equal shares to the 5 siblings. Since these documents were put in Part A, thus the documents’ contents and authenticity were mutually agreed to by the parties. The Jadual Tiga was endorsed with the Memorial No. 110285510 i.e. the same Memorial Number which appeared on the Title Deed of the Property. By virtue of Order 34 rule 2(2)(d) Rules of Court 2012 the parties are therefore bound by the facts they have agreed to; ii. The Learned Judge had found that the Plaintiffs were truthful witnesses. She had accepted the 1st Plaintiff’s narrative about her discovery that the Plaintiff’s shares were unlawfully transferred to the 1st Defendant to be the truth; iii. PW1 had testified that circa 2014 (22 years since initially obtaining of 1/5 share and 12 years since transferring the same share to the 1st Defendant) she was having financial difficulties when her husband passed away and had sought for the siblings’ mutual brother’s (PW4) assistance. This prompted PW4 to remind her of the Property which he said was generating rental income. Thereafter, they had gone to the Lands and Surveys Department on 3.9.2014 to conduct a land search over the Property. From there, it was allegedly found out that the Property had been wholly transferred to the 1st Defendant in the year 2002. The Plaintiffs subsequently obtained a copy of the MOT and Memorandum of Charge executed by the 1st Defendant in favour of the 3rd Defendant Bank. Upon such alleged discovery, two days later on 5.9.2014, PW1 lodged a police report. About three weeks after lodging the police report, on 1.10.2014 the Plaintiffs had instructed their solicitors to apply for Collector’s caveat and also to lodge a private caveat. Following PW1’s police report, the police had begun their investigation on the allegation by the Plaintiffs and as at the date of trial the police investigation was still ongoing (as was confirmed by PW2 who is the Head of Commercial Unit at the Keningau District Police Headquarters); iv. PW2 testified that following the police investigation, a chemist report had been prepared to ascertain whether signatures of the Plaintiffs on the MOT were genuine or not. However, the Chemist Report was not produced in court as it was “classified” and that it was part of the investigation papers of the ongoing investigation; v. The Learned Judge believed and accepted the evidence of PW1, PW2 and the documents (the police report and the lodgement of caveats) tendered by the Plaintiffs. The Plaintiffs had tendered the official receipt for the land search issued by the Lands and Surveys Department on 3.9.2014 which date corresponded with the certification stamp on the copy of the title Deed and MOT obtained by the 1st Plaintiff; vi. The Learned Judge held that the Official Receipt of Land Search done by the Plaintiffs had supported the Plaintiffs' evidence that the 1st Plaintiff had conducted a land search in respect of the Property in 2014 and upon the land search being done they allegedly discovered for the first time, of the transfer of their shares to the 1st Defendant; vii. The Learned Judge found that the Plaintiffs’ evidence and the contemporaneous documents had supported the Plaintiffs’ pleaded case that they never went to the Lands and Surveys Department at Tambunan and Kota Kinabalu on 22.4.2002 to sign the MOT before the attesting witnesses, DW2 and DW4 (land office clerks in Tambunan and Kota Kinabalu respectively). Therefore, the Plaintiffs allegedly have never signed the MOT; viii. The Learned Judge further accepted the evidence of PW4. She made a finding that PW4’s evidence had supported the Plaintiffs’ version of the circumstances which has led to the transfer of the Property to his 5 sisters and the manner in which the unlawful transfer of the Plaintiffs’ shares to the 1st Defendant was uncovered by the 1st Plaintiff. PW4 had also corroborated the Plaintiffs’ position that the Property was not held by the Plaintiffs on trust for their mother. The relevant portion of PW4’s evidence is reproduced below: “A5: When my father passed away, he had this Shophouse at Kota Kinabalu in his own name. After discussion with my mother, Wong Nyet Ting, my mother and I decided that we and my two (2) younger brothers, Fung Tee Ing and Fung Tee Lo will not claim any share in the Shophouse and to allow the five (5) daughters to have the Shophouse in equal shares. I have no problem to give up my share of the Shophouse although I have the right to claim as I already made a promise to my late father before he passed away. My mother also did not want any share of the Shophouse. As the lawful wife, my mother made the application to Mahkamah Anak Negeri and she also on behalf of her three (3) sons made a Surat Akuan on 09.02.1993," ix. The Learned Judge held that there was no good reason to disbelieve PW4's direct evidence as to how the Surat Akuan came about; x. The Learned Judge had accepted Exhibit "P3"- Surat Akuan dated 9.2.1993 made by the parties’ late mother. She found that P3 was not only a contemporaneous evidence but was wholly consistent with the subsequent grant of Jadual Tiga by the Mahkamah Anak Negeri a month later on 10.3.1993. Without their mother's Surat Akuan, there would not have been any basis for the Native Court to allow the daughters to inherit the Property to the exclusion of their mother and brothers; xi. The Learned Judge had wholly rejected the evidence of the 1st Defendant (DW1) and her witnesses. [26] Dissatisfied with the Learned Judge’s decision, the 3rd Defendant Bank and the 1st Defendant had filed the two (2) separate Appeals before us. [27] Appeal No. S-01 (NCVC)(W)-379-08/2020 (“Appeal 379”) was primarily the 3rd Defendant Bank’s Appeal to defend its position as a bona fide subsequent chargee for value holding deferred indefeasible title. On the other hand, Appeal No. S-01 (NCVC)(W)-390-08/2020 (“Appeal 390”) was the 1st Defendant’s Appeal essentially to challenge the Learned Judge’s finding of the unlawful and invalid transfer of the Plaintiffs’ shares of the property to the 1st Defendant and that the shares were not held on trust for their then surviving mother. D. THE APPEAL BEFORE US [28] We have perused both Appeals’ Memorandums of Appeal, Records of Appeal, and all respective written submissions in both Appeals 379 and 390 and verily believe that both of the Appeals can be determined by answering the following issues: a. Issue 1: Whether or not the Learned Judge was correct in finding that the Plaintiffs have discharged their burden of proof (on the balance of probabilities) that they had never signed the MOT and that the Plaintiffs’ shares (1/5th share each) on the property had been unlawfully transferred to the 1st Defendant without the Plaintiffs’ knowledge by way of forged signatures; and b. Issue 2: Whether or not the Learned Judge was correct in finding that the 3rd Defendant Bank was not a bona fide subsequent chargee for valuable consideration. [29] The parties shall herein be referred to in their original capacities as they were in the High Court. E. Issue 1: Whether or not the Learned Judge was correct in finding that the Plaintiffs have discharged their burden of proof (on the balance of probabilities) that they had never signed the MOT and that the Plaintiffs’ shares (1/5 share each) on the property had been unlawfully transferred to the 1st Defendant without the Plaintiffs’ knowledge by way of forged signatures [30] Now, it defies logic and the law if we were to outright agree that the tendering of a handwriting expert was not at all necessary for the Plaintiffs to prove their allegation of fraud by means of forgery of their signatures. The law and plain logic would dictate that evidence from a handwriting expert would be most scientifically helpful to guide the wisdom of the Court as to the authenticity of the Plaintiffs’ signatures appearing on the MOT. Although we are also aware that evidence of a handwriting expert is not the only manner of evidence that could prove or disprove an allegation of forgery. But the usefulness of such expert evidence cannot be denied. [31] Peculiarly, the Plaintiffs’ own witness, PW2 testified that in the course of investigating the Plaintiffs’ police report, the police indeed has obtained a chemist report over the impugned signatures. The Plaintiffs could have at least applied for the release of the chemist report (which was readily available) but instead the Plaintiffs simply abided by PW2’s reluctance to tender the chemist report on the ground that it was ‘classified’ and production of the same would somehow ‘impede’ on an ongoing investigation. [32] We are pressed to remark that the Plaintiff’s police report was lodged some NINE (9) YEARS AGO on 5.9.2014. It is profoundly odd and suspicious that closing into a decade into the police’s investigation, the police still was ‘not ready’ to divulge its findings vide the chemist report in which the police had already obtained. [33] In fact, if a chemist report has already been obtained almost a decade ago and the Police still remained silent without any action mounted against the 1st Defendant, then it is far more probable than not that the police themselves disbelieve of the Plaintiffs’ allegations. [34] We find it utterly suspicious that the Plaintiffs had not taken any action to insist upon the police to produce the chemist report. If the Plaintiffs were so confident and genuine in their allegation of fraud and forgery, then the Plaintiffs should have fought tooth and nail to have the chemist report to ‘unravel’ the 1st Defendant’s alleged misdeeds. [35] Thus, this was not a case where there was not any expert evidence available to be tendered into Court. This was a case where there was an expert chemist report but was withheld from the Court. We cannot reconcile with the Plaintiffs’ peculiar ‘surrender’ to just leave the chemist report to remain ‘classified’ after almost 10 years of ‘investigation’. [36] We understand that the Learned Judge fiercely relied upon the Federal Court’s decision in Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697 in supporting her decision to do away with expert evidence and simply consider the factum probans (the circumstantial evidence) surrounding the case. Indeed, we do not intend to contradict the Federal Court’s ruling that a handwriting expert is not the be all and end all evidence to prove forgery. However, the real depth of the Federal Court’s decision is not as simplistic. We have to properly examine the Federal Court’s ratio decidendi. The first relevant excerpt of the decision reads: “It is not necessary to examine a handwriting expert in every case of disputed writing. No adverse inference can be drawn against a party from the fact that the opinion of the handwriting expert HAS NOT BEEN OBTAINED… the principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, ie the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue, but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together, they form a chain of circumstances from which the existence of the principal act can be legally inferred or presumed’ (Woodroffe and Amir Ali Vol 2 at p 2236). ‘The modes of proof envisaged in ss 45 and 47 of the Act are not exclusive for proving the genuineness or authorship of a document’ (Woodroffe and Amir Ali Vol 2 at p 2237). Comparison may be made, by a handwriting expert under s 45 of the Evidence Act, by anyone familiar with the handwriting of the person concerned as provided by s 47 of the Evidence Act, or by the court itself. Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697.” (Emphasis added.) [37] The first limb of the Federal Court’s decision has already prescribed the first qualification upon the rule. And that qualification is no adverse inference can be drawn only if opinion of a handwriting expert HAS NOT BEEN OBTAINED. Thus, it still stands to good law and reason that adverse inference can still be drawn if expert evidence HAD INDEED BEEN OBTAINED BUT WAS WITHHELD from Court. And this was exactly the case in the appeal before us. It was not that the expert evidence had not been obtained but instead was withheld. The Plaintiffs knew that there was already a chemist report, but remained nonchalant as to the production of the same into the Court below. [38] It is an entirely distinct circumstance between: a. Consciously opting to not opt for handwriting expert in full belief of other circumstantial evidence surrounding the case; and b. Surreptitiously withholding a chemist report upon the signatures when the chemist report already existed and should have been made available for the Court’s benefit and scrutiny. [39] If a chemist report on the signatures has already existed, then the best evidence rule would dictate that the chemist report should be the best evidence that the Plaintiffs should have tendered into Court for examination at trial. The chemist report would then be the ‘best evidence’. [40] There was neither any evidence led by the Plaintiffs that any attempt was made to secure the release or ‘declassification’ of the chemist report. The Plaintiffs knew that the chemist report existed, and simply let it remain idle within the Police’s archives for almost a decade. There was not even a letter produced to show the Plaintiffs’ genuine attempt of securing the chemist report. It was resoundingly obvious that the Plaintiffs were disinterested in shedding light onto the truth by scientific means. [41] It is only when there was no expert evidence at all that the best evidence available to the Court would be the other evidence surrounding the case. Thus, it would be remiss if we were to let this glaring withholding of evidence by the Plaintiffs to remain unscathed. We must justly and appropriately draw the necessary adverse inference under Section 114(g) of the Evidence Act 1950 for the Plaintiffs’ failure and refusal to tender the chemist report especially when it was readily testified by their own witness that the chemist report was already in existence. We cannot stand by and accept the lacklustre excuse that the chemist report was still ‘classified’ after almost 10 years of ‘investigation’ into the authenticity of their signatures. It is only just and appropriate that the Federal Court decision in Letchumanan (supra) be distinguished from the case before us. [42] There is a stark distinction between not obtaining a chemist report and withholding the chemist report. In cases where a chemist report was admitted to be obtained (and yet was withheld), an adverse inference ought to be drawn for such inexplicable withholding of evidence. We accordingly refer to the case of Public Prosecutor v Mohd Nazrul bin Shuhaimi [2009] 6 MLJ 662 which had addressed a similar situation where a chemist report was admitted to be available, but the chemist was inexplicably withheld from the Court: “FAILURE TO CALL THE CHEMIST [21] More telling in this case is that the doctor conducting the post mortem had handed a number of samples to be analysed and the IO himself had seized certain items from the accused which were in fact sent to the Chemist Department yet the chemist who analysed the exhibits was not called to testify and neither was there proof that the chemist report was served on the accused. [22] I did not hesitate in this case in invoking an adverse inference against the prosecution under s 114(g) of the Evidence Act. In doing so I took heed of what was stated in the Federal Court case of Ghazalee bin Kassim & Ors v Public Prosecutor and other appeals [2008] 3 MLJ 473; [2009] 1 LNS 447 where it was stated as follows: The court will only invoke s 114(g) of the Evidence Act for failure to call a witness if it is of the opinion that the prosecution does so to withhold or suppress evidence which, if produced could be construed against the prosecution or otherwise in favor of the accused. The prosecution can also in the alternative, offer to the defence any witness which they do not wish to call. As to which witness the prosecution chooses to call is entirely up to them. Calling a wrong witness may be detrimental to their case. The same goes if they fail to call a material witness. This is where s 114(g) of the Evidence Act may be invoked by the court. [23] In this case the prosecution failed to explain the non-calling of the chemist and surely the chemist being a government servant should be easily available to testify. The prosecution might not necessarily be suppressing or withholding evidence unfavorable to them but in the circumstances of this case where the prosecution was relying on circumstantial evidence the chemist had to be regarded as a material witness.” (Emphasis added.) [43] For the sake of completeness, we shall continue to scrutinize the Learned Judge’s misplaced reliance upon the Federal Court’s decision in Letchumanan (supra). Now, the Federal Court in Letchumanan held that in absence (not in withholding) of expert evidence, the Courts can look into other factum probans or surrounding circumstantial evidence to identify the truth in an allegation of fraud or forgery. However, it is not at all true that this allowance was without any limitations or qualification. The following limb of the judgment prescribes another qualification and caution as to this allowance: “‘As a matter of extreme caution and judicial sobriety, the court should not normally, take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of the experts. But this does not mean that the court does not have any power to compare the disputed signature with the admitted signature. That power is clearly available under s 73 of the Act’ (Woodroffe and Amir Ali Vol 2 at p 2236). But ‘if the feature of writing and signature on the documents are SO GLARING, that the court can form an opinion by itself either way, further exercise under s 45 may virtually become unnecessary or futile’ (Woodroffe and Amir Ali Vol 2 at p 2248). That was practically said in Siaw Kim Seong v Siew Swee Yin (f) & Anor [2009] 1 MLJ 349, where the supposed signatures of the plaintiff did not match his admitted signatures upon a CURSORY VISUAL EXAMINATION, and where it was said by the Court of Appeal per Gopal Sri Ram JCA, as he then was, delivering the judgment of the court, that the trial judge ought to have acted under s 73(1) of the Evidence Act 1950 and made the comparison himself and that ‘had the judge undertaken such an examination he would have concluded, even without the aid of an expert, that the signatures appearing on the assignment and the transfer WERE PLAIN AND UNDISGUISED FORGERIES’. It should be clear enough that a finding of forgery could be made without the opinion evidence of a handwriting expert.” (Emphasis added.) [44] From the excerpt above, it is clear that the qualifications are as follows: a. The Court should as far as practicable, leave the matter to the wisdom of the expert; b. Even if there is the slightest of doubt, the Court should leave the matter to the expert; and c. The Court may do away with expert evidence only if the forgery was “SO GLARING” and by simple and “CURSORY VISUAL EXAMINATION” the signature appears to be “PLAIN AND UNDISGUISED FORGERIES”. [45] We have examined the Learned Judge’s judgment and we found no measure at all of any examination as to the discrepancy or at least degree of discrepancy in the alleged forgeries perpetrated by the 1st Defendant. Thus, it is unfortunately clear that the Learned Judge has failed to address her mind of these qualifications before her examination into the circumstantial evidence surrounding the case. This alone was an appealable error and failure of judicial appreciation of evidence. [46] Nonetheless we continue on to scrutinize the Learned Judge’s appreciation of the circumstantial evidence she so believed had discharged the Plaintiffs’ burden of proof. Upon reading the grounds of judgment, we identified the supposed circumstantial evidence that the Learned Judge had relied upon: a. The Learned Judge had disregarded and attached no value onto the Direct Evidence proffered by the 1st Defendant vide the independent testimonies of the governmental workers (legal clerks of the Land Office) and preferred the other supposed circumstantial evidence; b. The circumstantial evidence of the Surat Akuan, the Statement of Agreed Facts, and the Jadual 3 (“Documents”) being Part A Documents, means that the 1st Defendant already admitted the truth of the equal division of the Property to the 5 sisters to be not under any trust; c. The testimony of their common brother (PW4) corroborated the contents of the Surat Akuan and Jadual 3; d. The circumstantial evidence that the then surviving mother would not have relinquished her claim over the property if she truly was claiming beneficial ownership under the Trust; and e. The circumstantial evidence that the deceased did not leave a written will to evince his intention to create the supposed Trust. [47] It was very clear that the Learned Judge had affirmed the existence of fraud / forgery merely because the Documents leading to the equal division of the Property to the 5 sisters were part A Documents. It must be reminded that the factum of the equal division of the Property was never a disputed fact. It was indeed an admitted fact even by the 1st Defendant that the Property was equally divided to the 5 sisters’ ownership of 1/5th share each. [48] Thus, it was no dent or discredit against the 1st Defendant’s case to admit the facts and documents leading to the equal division of rights over the Property to the 5 sisters. Such an admission does not by any means prove and/or disprove the existence of fraud or forgery. Nor does it disprove the existence of the Trust held for the benefit of their then surviving mother. [49] As against the Statement of Agreed Facts, the Surat Akuan and Jadual 3, we must be minded that the entire saga behind the Property, is a family. Nothing in the disputations and relationship between the parties were strictly commercial and formal to any minute degree. Thus, the Learned Judge should not have rigidly interpreted the parties’ relationship as per these Documents too strictly to the words within the four corners of the Documents. This was a family and typical of families, many of its workings were by unwritten conventions and mutual unwritten understanding. [50] Indeed, the Surat Akuan evinced the then surviving mother’s intent to not claim registered proprietorship over the Property. But there were no express words to negate any intention of the trust. Proving relinquishment of registered interest does not at all automatically negate the existence of trust. Nor does relinquishing REGISTERED interest would automatically mean relinquishing BENEFICIAL interest over the Property. [51] This was the reason the Federal Court very recently upheld the existence of secret trusts within the legal framework of the nation in the case of Chin Jhin Thien & Anor v Chin Huat Yean @ Chin Chun Yean & Anor [2020] 4 MLJ 581: “As a creature of common law, secret trusts OPERATED OUTSIDE THE FORMALITIES of the Wills Act 1959 as a form of inter vivos express trust in which the testator and trustee mutually agreed to form a trust relationship for the lifetime of the testator. Secret trusts were enforced to promote the main policy principle behind the Wills Act 1959, namely, to protect the testamentary freedom of testators”.(Emphasis added) [52] Thus, the absence of a written trust or will was not a be all and end all indication that the Secret Trust had never existed. If that shall be the case, then the entire concept of secret trust would have lost any meaning and significance. Of course, it remains incumbent upon the 1st Defendant to discharge her burden of proof to prove the existence of the Secret Trust. It was thoroughly and utterly wrong for the Learned Judge to find that non-existence of a formal will was fatal to the 1st Defendants’ case. The Federal Court in the same decision above defined secret trust as follows: “[27] Snell’s Equity (33rd Ed, Sweet & Maxwell, 2015), para 24– 023 at p 660 offers the following definition of secret trusts: A secret trust gives effect to the express intentions of a testator WHICH ARE NOT CONTAINED IN A WRITTEN DOCUMENT DULY EXECUTED AS A WILL. A will is a public document. The advantage of a secret trust is that the testator may use a will to implement his wish to establish a trust upon his death without disclosing the intended beneficiary or the terms under which he holds. “Secret trusts are a device by which the express intention of a person to make a testamentary gift may be enforced DESPITE the testator’s failure to comply with the formalities for the execution of a will or testamentary disposition under the Wills Act 1837. They demonstrate the rationale of preventing the fraudulent reliance on the statutory formalities as a justification for denying the enforceability of the secret trustee’s expressly undertaken obligations …” (Emphasis added.) [53] Thus, the Learned Judge’s finding of fatality against the 1st Defendant’s case even directly contradicted the very Federal Court decision in which the Learned Judge had relied upon in concluding her decision. A formally executed will was never a required element to prove a secret trust. [54] In fact, it was never the law that the only legitimate form of trust would be a formally executed express trust. It was recently restated that a trust may exist and may be proven despite there were no express written trust ever being executed. We refer to the recent decision in the case of Dato’ PB Ashok a/l PB Krishnan Pillai & Ors v Azrin Fazrina bt Jamri & Anor [2022] MLJU 495: [11] The Federal Court explained how trusts are created in Geh Cheng Hooi & Ors v Equipment Dynamics Sdn Bhd and other appeals [1991] 1 MLJ 293: “Trusts are either (i) express trusts, which are created expressly or impliedly by the actual terms of some instrument or declaration, or which by some enactment are expressly imposed on persons in relation to some property vested in them, whether or not they are already trustees of that property; or (ii) trusts arising by operation of law (other than express trust imposed by enactments) (see para 523 of 48 Halsbury’s Laws of England (4th Ed)). Trusts arising by operation of law could be constructive and resulting trusts. Although we would agree with the view that a trust should not normally be imported into a commercial relationship, yet we would hold that in cases such as those involved in these appeals the court could and should consider the facts to determine whether a fiduciary relationship existed. We therefore agreed with Mr Wong that in the present cases we must consider the circumstances concerning the relationship between the parties. We were satisfied and agreed with the learned judge that in the circumstances agreements themselves do not contain an express clause that the proceeds of sale would be held on trust, as it is clearly manifested in the agreements and the correspondence concerned that it was the intention of the parties that the Emporium or its outlets as licensors should, after deduction of the fees and commissions agreed to be paid to them, make over to the concessionaires or consignors all payments by third customers. We also agreed with the learned judge and Mr Wong that the principle in Re Hallet’s Estate should be applied to these cases and that the cash found in the tills of the various outlets and in the bank accounts as at 10 March 1987, are the subject matter of a trust or several trusts in favour of the concessionaires and consignors who can therefore trace the money there as well as to the proceeds of the sale to Inview Sdn Bhd.” [12] Geh Cheng Hooi made clear that: 12.1 trusts can arise by operation of law, that is, either a resulting trust or constructive trust; 12.2 the court needs to consider the relationship between the parties to determine whether there is a trust; 12.3 it is not necessary to have an express clause with the word trust in it as long as the correspondence or agreement concerned manifest an intention to create a trust.” (Emphasis added.) [55] Furthermore, the factum that the then surviving mother relinquishing registered interest over the Property does not at all disprove the existence of the Trust. On the contrary, if their then surviving mother did not relinquish her claim over the Property, then that insistence of her registered interest would in fact negate the existence of the Trust. But that was not at all the case in the Appeal before us. The then surviving mother proceeded to relinquish her claim in the reliance of and in the belief that her daughters would honour the Trust created by her late husband and her children. [56] In fact, if we were to go by the Learned Judge’s logic on the supposed ‘admission’ via the placement of the Documents in Part A, then the same logic should equally apply to fortify the Defendants’ case. It must be minded that the Land Title to the Property (which bears endorsement of the transfers under the MOT), and the Memorandum of Charge to the 3rd Defendant Bank were also classified as Part A Documents (“Defendants’ Documents”). Thus, by the same reasoning, the Learned Judge should have similarly found that the Plaintiffs have admitted to the truth of their signing of the MOT and the valid creation of the charge under the Trust. Thus, it is clear that the Learned Judge’s simplistic evaluation of the Documents and the Defendants’ Documents (based on their classification) was unfortunately erroneous. [57] Now, aside from the miniscule circumstantial evidence that the Learned Judge had considered, we have identified the other glaring direct and circumstantial evidence that the Learned Judge had failed to properly appreciate (which would have in fact proven the legitimacy of the signatures, the MOT, and the Secret Trust): a. The DIRECT EVIDENCE that two independent witnesses (who had attested the MOT) had positively identified the Plaintiffs’ signatures and confirmed the occurrence of the signature before them at their respective Land Offices; b. The circumstantial evidence that the other three (3) signatories of the transfer (the 1st Defendant, Suzie, and Lily) all supported the legitimacy of the MOT and the existence of the secret trust; c. The circumstantial evidence that for some unknown reason the Plaintiffs refused to make Suzie and Lily (who were also party to the Secret Trust and MOT) as parties to the Plaintiffs’ suit; d. The circumstantial evidence that for some unknown reason that the Plaintiffs refused to make DW6 as a party to the Plaintiffs’ suit despite DW6 being one of the brothers who bear witness to the signing of the impugned MOT which the Plaintiffs claim to be fraudulent; e. The circumstantial evidence that for some unknown reason the Plaintiffs refused to make other individuals who were ‘accessories’ to the alleged fraud as parties in the Plaintiffs’ suit; f. The circumstantial evidence that for some inexplicable reason the Plaintiffs were arbitrarily selective in prosecuting their claims against the personas allegedly involved in the alleged fraud and forgeries; g. The circumstantial evidence that the legitimacy of the signatures, the signing of the MOT before the independent witnesses (DW2 and DW4) were corroborated by the testimonies of Suzie and Lily (who were also signatories of the transfer of their shares to the 1st Defendant); h. The circumstantial evidence that the majority 3 out the 5 sisters (the 1st Defendant, Suzie, and Lily) all without complaints or resistance selflessly and willingly set into motion the creation of the charge to the 3rd Defendant Bank for the sake of monies to be given to their then surviving mother (and not for their own benefit); i. The circumstantial evidence that there was an unconscionably and inexplicably long delay of 22 years (from the initial equal 1/5th share ownership circa 1992) until the alleged ‘discovery of fraud’ before the Plaintiffs were ‘reminded’ of the rental income generated from the Property (being a shophouse); j. The circumstantial evidence that there was an unconscionably and inexplicably long delay of 22 years (from the initial equal 1/5th share ownership circa 1992) until the alleged ‘discovery of fraud’ that the Plaintiffs never actively asserted their rights or portions to the rental income from the Property; k. The circumstantial evidence that the Plaintiffs never saw it proper to actively pursue the declassification and release of the chemist report from the police for almost a decade since their Police report circa September 2014; l. The circumstantial evidence that DW2 (as a land office clerk in Kota Kinabalu) and DW4 (as a land office clerk in Tambunan) were independent witnesses who had no reasons to lie and had nothing to gain from the transfer of the siblings’ shares to the 1st Defendant; m. The circumstantial evidence that the Plaintiffs had never tendered any medical evidence or expert evidence to prove that DW4’s past head injuries and seizures would go as far as to impede DW4’s memories and capacity to testify as an independent witness; n. The circumstantial evidence that the Plaintiffs had never tendered any medical or expert evidence to prove that DW4’s past head injuries and seizures would go as far as to impede DW4’s positive identification of the 1st Plaintiff’s signature and the occurrence of the signing before him; o. The circumstantial evidence that for the past 22 years (from the initial equal 1/5th share ownership circa 1992) until the alleged ‘discovery of fraud’, the title over the Property had always remained within the safekeeping and possession of the then surviving mother; and p. The circumstantial evidence that for the past 9 years since the Plaintiffs’ police report, the Police still had not taken any actions against the 1st Defendant despite already having a chemist report in the police’s possession. [58] Now, even assuming the Learned Judge was right in disregarding DW2 and DW4’s independent direct evidence (which was indeed wrong) there was already a torrent of circumstantial evidence as listed above that would have supported the fact that the Trust indeed existed and that the MOT was valid as the Plaintiffs indeed had signed the MOT. [59] It was far too compelling for us to ignore the plethora of actions (as well as omissions) by the Plaintiffs themselves, the police, the parties’ mutual brother (DW6), the 3rd Defendant Bank, the other signatories to the MOT (being Suzie and Lily), and the then surviving mother who have all admitted and proven (on the balance of the probabilities) that the transfer of all the 5 sisters’ shares to the 1st Defendant and the Trust for the benefit of the then surviving mother was the ultimate truth of the matter. [60] Even without the independent direct evidence by DW2 and DW4, it was clear that the circumstantial evidence was beyond compelling for us to conclude that the Plaintiffs’ signature was indeed authentic and that the Property indeed was held on trust for their then surviving mother. [61] The fact that the Plaintiffs had for years remained ignorant and nonchalant about their shares in the Property (also the rental generated from the same Property), was utterly indicative that the truth tilts in favour of the Appellants’ narrative that the Property was held in trust for the benefit of the siblings’ then surviving mother. [62] It was outright unthinkable that the Plaintiffs would ‘sleep’ on their rights over the rent generated from the Property for so long that they had ‘forgotten’ this prime source of income that would prove to be very helpful to their financial woes. [63] It is infinitely more probable than not that all the siblings from the outset understood that they held the Property in trust for the sake of their then surviving mother. Following the same narrative, it is more probable than not that the siblings were all aware and were in unison to deal with their shares in accordance with the spirit of the Trust (and have their shares transferred to the 1st Defendant and later be charged to the Bank to obtain monies for the sake of their then surviving mother). The fact that a large majority of the loan monies were credited into the then surviving mother’s account lends further credence and legitimacy to the 1st Defendants’ narrative. [64] Thus, it would be a grave injustice for us to now allow the Plaintiffs to blow hot and cold and negate their prior admission as to the legitimacy of the MOT and the Trust created for the benefit of their then surviving mother. The Plaintiffs ought to be estopped from now denying the validity of the MOT, the charge, and the Trust in favour of their then surviving mother. [65] Suffice that we refer to the recent decision in Marzida bt Mansor v Lembaga Kumpulan Wang Simpanan Pekerja [2023] 4 MLJ 364 in which the Court of Appeal had restated the celebrated principle of estoppel against the unjust adoption of contradictory stances in a case: “[53] The Federal Court’s decision in the case of Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 has cautioned against such adoption of contradictory stances: When the parties to a transaction proceed on the basis of an underlying assumption either of fact or of law — whether due to misrepresentation or mistake makes no difference — on which they have conducted the dealings between them – neither of them will be allowed to go back on the assumption when it would be unfair or unjust to allow him to do so’.lt would facilitate moral decadence within our social structure. [54] Such approbating and reprobating of stances have also been cautioned against by the Court of Appeal in the case of Cheah Theam Kheng v City Centre Sdn Bhd (in liquidation) and other appeals [2012] 1 MLJ 761; [2012] 2 CLJ 16 which had held the following: In other words of Sir Nicolas Browne-Wilkinson VC in Express Newspapers Plc v News (UK) Ltd and Others [1990] 3 All ER 376 at pp 383–384: There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance. [55] It would be severely remiss and unbecoming of this court to allow the appellant to renege against the position it had taken for the past 13 years.” [66] Now, it is already clear that the Learned Judge had unduly preferred minute circumstantial evidence against a barrage of other critical circumstantial evidence which otherwise would have disproved the Plaintiffs’ claim. For the sake of completeness, we shall also briefly deal with the Learned Judge’s erroneous disregard of Direct Evidence. [67] DW2 and DW4 were land office clerks who attested the MOT. They stood to gain nothing at all from the transfer of the Property. The reason the Learned Judge chose to disregard their independent testimony was because: a. There were some discrepancies in DW4’s testimony and that DW4’s capacity was discredited as DW4 had seizures while testifying in Court; and b. There were some discrepancies in DW2’s testimony and it took extensive ‘prodding’ until DW2 ‘corrected’ his testimony to give positive identification of the Plaintiffs’ signatures. [68] As against the discrediting of DW4, we must remark that there was no medical evidence tendered before the Learned Judge that the head injury suffered by DW4 would go as far as to impede in DW4’s memory. Without the aid of any medical report or expert testimony, it was far too presumptuous of the Learned Judge to medically decide on the quality and veracity of DW4’s mind and testimony. [69] As against the discrediting of DW2, we are also minded that as at the time of testimony, DW2 was already at the old age of 70. It would be unjust for the Learned Judge to expect a perfect and solid testimony from a person of such elderly age. It would not even have been fair to expect the same from a spry young witness. [70] We have here two independent witnesses that was either unwell or elderly. That be the case, it should have been prudent and fair for the learned Judge to afford some margin of discrepancy and not strictly or simply discredit the independent witnesses’ entire testimony. [71] Although a smooth and seamless testimony is ideal, but reality of witness testimony rarely is ever ideal or perfect. The Federal Court had expressed the same sentiment on the realities of witness testimony in the case of Public Prosecutor v Datuk Haji Harun Bin Haji Idris (NO. 2) [1977] 1 MLJ 15: “In my opinion discrepancies there will always be, because every witness does not remember the same thing and does not remember accurately every single thing that happened ... I shall be most inclined to think that if there are no discrepancies, it might be suggested that they have concocted their accounts of what had happened or what had been said because their versions are too consistent. The question is whether the existence of certain discrepancies is sufficient to destroy their credibility. There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A court is fully competent for good and cogent reasons, to accept one part of the testimony of a witness and reject the other.” (Emphasis added,) [72] We also refer to the Federal Court decision in Lai Kim Hon & Ors v Public Prosecutor [SEE NOTE AT [1980] 2 M.L.J. X.] [1981] 1 MLJ 84 in which the Federal Court had mirrored the same sentiment: “Discrepancies will always be found in the evidence of a witness but what a judge has to determine is whether they are minor or material discrepancies. And which evidence is to be believed or disbelieved is again a matter to be determined by the trial judge based on the credibility of each witness. In the final analysis it is for the trial judge to determine which part of the evidence of a witness he is to accept and which to reject. Viewed in that light we did not consider it proper for this court to substitute its findings for that of the learned trial judge.” (Emphasis is added.) [73] In any case, the testimony of witnesses must be tested against the contemporaneous evidence available in Court. It should have been clear to the Learned Judge that (save for the limited circumstantial evidence relied upon by the Learned Judge) all other contemporaneous documents and surrounding facts and evidence would corroborate the narrative that the Defendants’ defence to be the solemn truth. [74] The failure of the Learned Judge to test the independent witnesses’ evidence against contemporaneous documents and surrounding evidence is in itself a failure of judicial appreciation into the evidence. We refer to a very recent Court of Appeal decision in Choong Shin Cheong v Suruhanjaya Syarikat Malaysia & Anor [2020] 5 MLJ 523: “Regarding the necessity of testing the veracity of witnesses’ testimony against the backdrop of contemporaneous documents in the face of conflicting evidence, it was settled law that in cases where there was conflicting evidence, it was the duty of the court to not only weigh such evidence on a balance of probabilities but it also look at all the surrounding factors and to weigh and evaluate contemporaneous documents that may tend to establish the truth or otherwise of a given fact.” (Emphasis added.) [75] The fact that the Learned Judge was aware that DW2 was able to correct his testimony should be an indication to the Learned Judge that DW2 was still able to reconcile his memories and recollections regarding the signing of the MOT. [76] Thus, since DW2 and DW4’s direct evidence should have been considered, it naturally follows that that the Learned Judge had wrongfully preferred circumstantial evidence over direct evidence which was readily available in Court. In fact, direct evidence as to signatures would prove to be even more probative than a handwriting expert. We refer to the Court of Appeal decision in Lee Ing Chin @ Lee Teck Seng & Ors V Gan Yook Chin & Anor [2003] 2 MLJ 97: “It is a well-established general guide to the judicial appreciation of handwriting evidence that where there is a sharp conflict between the direct testimony of a disinterested witness on the one side and that of a handwriting expert on the other as to the genuineness of the execution of a document, then it is a safe course for a court to prefer the direct evidence. Accordingly, the judge erred in not preferring the evidence of DW2 and DW3 to that of the handwriting experts (see pp 135I–136A, 137A–D, 138A); Newton v Ricketts [1861] 11 ER 731 followed.” (Emphasis added) [77] The Federal Court in Gan Yook Chin & Anor V. Lee Ing Chin & Ors [2004] 4 CLJ 309 had similarly endorsed the Court of Appeal’s decision to prefer and rely upon the testimonies of wholly disinterested witnesses: "Everything considered, we tend to agree with the observations expressed by the Court of Appeal in the following terms: Once the evidence of DW2 and DW3 is carefully scrutinized and tested against the probabilities of the case, it is apparent that they are wholly disinterested witnesses. Their evidence may be safely acted upon and ought to have been acted upon by the learned judicial commissioner. DW2 attended on the deceased, took his instructions, prepared a will in accordance with those instructions and attended to the execution and attestation of that will. DW2 and DW3, testified that the deceased was entirely lucid and mentally alert both at the time of giving instructions and at the time of signing the will. We find no good reason for these two witnesses to have concocted their story as neither of them had anything to gain from doing so..." (Emphasis added.) [78] In a similar manner, the Learned Judge should have preferred the independent direct evidence of the two disinterested witness over other miniscule circumstantial evidence she had erroneously preferred. [79] All of the above (in this part) considered, we hereby answer issue 1 in the NEGATIVE. The Learned Judge was unfortunately wrong in finding that the Plaintiffs have discharged their burden of proof (on the balance of probabilities) that they had never signed the MOT. [80] It was also erroneous of the Learned Judge to find that the Plaintiffs’ shares on the property had been unlawfully transferred to the 1st Defendant without the Plaintiffs’ knowledge by way of forged signatures. It was also wrong of the Learned Judge to find that the Property was not held on trust for the benefit of the siblings’ then surviving mother (now deceased). F. Issue 2: Whether or not the Learned Judge was correct in finding that the 3rd Defendant Bank was not a bona fide subsequent chargee for valuable consideration. [81] Considering our negative answer to issue 1, the entire question in issue 2 is already moot and academic. Since there was no forgery or fraud to impugn the MOT and transfer of the Plaintiffs’ shares to the 1st Defendant, then there shall not be any impediment to the valid creation of the charge with the 3rd Defendant Bank. [82] Nonetheless, we do remark that considering the facts of the case, and the available information that the 3rd Defendant Bank would have obtained from the searches it conducted, it would not have been clear to the 3rd Defendant bank that there might be any reason to go beyond the Land Title and the MOT. [83] The Learned Judge found issue when the 3rd Defendant Bank had approved the Loan ahead of the registration of the MOT. Thus, supposedly, the Loan was approved despite knowing that the shares in the Property have yet to be transferred to the 1st Defendant. [84] On the contrary, it was also in evidence that the Loan was granted with full disclosure of the impending transfers of all the 1/5th shares to the 1st Defendant. Thus, it was not at all conspicuous that the approval of the Loan was ahead of the registration of the MOT. The fact that both the MOT and the Memorandum of Charge was presented and registered at the same date of 22.8.2002 clearly proves that it was already within the 3rd Defendant Bank’s and all of the 5 siblings’ contemplation that the transfer of their shares was designed to facilitate the granting the Loan. [85] It is uncommon that a person holding beneficial interest over a property (although yet to be transferred that property) would have sufficient beneficial rights to deal with such property even before the interest was registered onto the title. We need only refer to the Court of Appeal decision in Besharapan Sdn Bhd & Ors v Agroco Plantation Sdn Bhd & Anor [2007] 1 MLJ 101: “On the authority of Borneo Housing Mortgage Finance Bhd v Time Engineering Bhd [1996] 2 MLJ 12, even though on the date of execution of the 1989 agreement the second and third appellants did not have any registered right or interest in the subject land that does not render the agreement which is otherwise valid and enforceable to be void or invalid. The second and third appellants at the material time have sufficient interest in the subject land to enter into a binding agreement by which they agreed to transfer the subject land when the title or interest in the subject has been registered in their names. In other words the parties agreed that the agreement will only become enforceable the moment the second and third appellants' right or interest in the subject land is registered under the Ordinance.”(Emphasis added.) (see also Malayan Banking Bhd v Mohd Affandi bin Ahmad & Anor and another appeal [2023] MLJU 2160) [86] The simultaneous presentation and registration of the MOT and Memorandum of Charge at the land office also proves that everything was above board. It is by no means uncommon for banks to approve loans ahead of time before actually registering the bank’s interest onto the collateral. In fact, it was also prudent of all the siblings to obtain the approval of the Loan so as to have certainty of the Loan so that the entire exercise of transferring their shares to the 1st Defendant was guaranteed to not be in vain. [87] Therefore, we agree with the counsel for the 3rd Defendant Bank that there was an absence of any adverse interest on the face of the Land Title and the MOT prior or during the registration of the transfer under the MOT. The same absence would also remain at the time the Memorandum of Charge was registered onto the Title. [88] In any case, it is already trite law that a chargee also falls within the class of ‘subsequent purchasers’ who would be afforded deferred indefeasibility of title over a property. Notwithstanding the existence of fraud in the prior immediate purchase, the 3rd Defendant Bank as bona fide subsequent chargee shall enjoy deferred indefeasibility of title. [89] We are conscious that there is no equivalent to section 340 of the National Land Code on indefeasibility in the Sabah Land Ordinance. Nevertheless, the reference to the Federal Court decision in See Leong Chye @ Sze Leong Chye & Anor v United Overseas Bank (M) Bhd and another appeal [2021] 5 MLJ 759 is relevant to underscore the position of the 3rd Defendant Bank as a bona fide purchaser: “The COA was correct to find that, on the facts, UOB was a subsequent purchaser. Heveaplast became an immediate purchaser when it was registered as the owner of the land pursuant to SPA1. In its capacity as immediate purchaser, Heveaplast created the UOB charges. Since a purchaser who acquired the interest from the immediate purchaser was a subsequent purchaser, it followed that UOB was a subsequent purchaser and the proviso to s 340(3) of the NLC applied. It was then only necessary to ascertain if UOB was a bona fide purchaser for value. If it was not, then its interest in the land under the UOB charges was defeasible and liable to be set aside.” (Emphasis added.) [90] Therefore, the 3rd Defendant Bank as subsequent chargee shall enjoy deferred indefeasibility and as there was no reason to believe that the 3rd Defendant Bank had acted in bad faith, we accordingly do not find any reason to deprive the 3rd Defendant Bank off of its deferred indefeasibility of title as subsequent chargee. [91] Thus, we similarly answer issue 2 in the NEGATIVE. The Learned Judge was wrong to find that the 3rd Defendant Bank was not a bona fide subsequent chargee enjoying deferred indefeasibility over the Property. G. OUR DECISION [92] All of the above findings considered, we hereby allow both of the appeals (Appeals S-01(NCVC)(W)-379-08/2020 and S-01(NCVC)(W)- 390-08/2020) and set aside the High Court order dated 17.07.2020. Therefore, the Plaintiffs’ claim against the Defendants stands dismissed with costs. [93] We also order that in respect of Appeal S-01(NCVC)(W)-390-08/2020) costs of RM70,000.00 here and below to be paid by the Respondents to the Appellant, subject to payment of allocatur. For Appeal S- 01(NCVC)(W)-379-08/2020, we order that the 1st and 2nd Respondents to pay the Appellant Bank costs of RM30,000.00 here and below, subject to payment of allocatur. Dated 19th October 2023 SGD -------------------- (AZIMAH BINTI OMAR) JUDGE COURT OF APPEAL Appeal S-01(NCVC)(W)-379-08/2020 For the Appellant - Messrs. MG’S Legal Chambers (Kota Kinabalu) Irene Vitus @ Caroline For the 1st and 2nd Respondents - Messrs. Michael Denis Tan & Co Wan Kher Ching For the 3rd Respondent - Jabatan Peguam Besar Negeri Sabah Appeal S-01(NCVC)(W)-390-08/2020 For the Appellant - Messrs. Sugumar & Co Chau Shin Yee For the Respondents - Messrs. Michael Denis Tan & Co Wan Kher Ching

Tika 2.6.0

WA-22NCVC-668-10/2016

PLAINTIF 1. ) APEX MARBLE SDN BHD 2. ) MCORE SDN BHD DEFENDAN LEONG TAT YAN

In this suit:1 The Ps seek losses arising from breach of contract, general, exemplary damages, interest, and costs from the D. 2 The D denies the claim grounded and alleged there is no legal basis or cause of action and filed a counterclaim against the Ps for damages. 3 On 30.08.2023:(a) In my considered judgment, I found the Ps had succeeded in proving their claim against the D and entered final judgment in their favour and costs of RM100,000.00 (global) to be paid within 30 days.(b) The counterclaim by D is dismissed for lack of evidence.

20/11/2023

YA Puan Hayatul Akmal binti Abdul Aziz

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=5d6cbbf0-29b1-43e7-a220-2910e66cfd73&Inline=true

WA-22NCvC-668-10/2016 1 IN THE HIGH COURT OF MALAYA IN KUALA LUMPUR 5 WILAYAH PERSEKUTUAN, MALAYSIA CIVIL SUIT NO: WA-22NCVC-668-10/2016 BETWEEN 1 APEX MARBLE SDN BHD 10 Company No: 669745-X 2 MCORE SDN BHD Company No: 599497-H …PLAINTIFFS AND LEONG TAT YAN … DEFENDANT 15 (IC No: 670730-04-5087) JUDGMENT (Enclosure 1) INTRODUCTION 20 [1] The First Plaintiff (P1) and the Second Plaintiff (P2), collectively referred to as the Ps, in this suit, are duly incorporated Malaysian companies, and the Defendant (D) is a Malaysian businessman operating in Vietnam. 25 A. The First Plaintiff / Apex Marble Sdn Bhd (P1) 1.1. 60% of shares in P1 were owned by CRG Incorporated Sdn Bhd (CRG). 1.2 CRG later became a publicly listed company named CRG Incorporated Berhad. 30 1.3 CRG is a wholly owned subsidiary of a publicly listed company, Bonia Corporation Berhad (BCB). 1.4 The defendant (D) owned 40% of shares in P1. B. The Second Plaintiff / Mcore Sdn Bhd (P2) 35 1.5 60% of shares in P2 are owned by BCB. 1.6 40% shares in P2 are owned by the D through 388 Venture Corporation Sdn Bhd (388 Venture). 1.7 The D is a director and shareholder of 388 Venture, holding 80% of the shares in 388 Venture. 40 1.8 The D is also a director of P2. 20/11/2023 15:30:52 WA-22NCVC-668-10/2016 Kand. 218 S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 2 [2] In this suit: 2.1 The Ps seek losses arising from breach of contract, general and exemplary damages, interest, and costs from the D. 45 2.2 The D denies the claim grounded on the premise that there is no legal basis or cause of action and filed a counterclaim against the Ps for damages. 2.3 On 30.08.2023: 50 (a) In my considered judgment, I found the Ps had succeeded in proving their claim against the D and entered final judgment in their favour and costs of RM100,000.00 (global) to be paid within 30 days. (b) The counterclaim by D is dismissed with costs for lack of merit 55 and wanting in compelling evidence. 2.4 Aggrieved, the defendant filed this appeal against my decision, and these are my reasons: 60 BRIEF FACTS: [3] Parties have filed agreed facts, and in narrating the brief facts, I will also refer to a series of correspondences and documents available before me. A. The Joint Venture 65 3.1 In early 2000, the Bonia Group of Companies (Bonia Group) started selling goods to D in Vietnam through his nominee, Van Thuy Hanh (Hanh). S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 3 3.2 Sometime at the end of 2002: 70 (a) The D approached BCB to propose a joint venture (JV). (b) The Bonia Group would sell their products to the D's nominee in Vietnam. (c) They would share in the revenue from the sales. (d) The D would be exclusively responsible for all operational 75 aspects of the Vietnam business. 3.3 It was agreed with further negotiations to refine the JV. B. Implementation of the JV The First Plaintiff / Apex Marble Sdn Bhd (P1) 80 3.4 P1 was incorporated on 18.10.2004: (a) Its original purpose was to market and distribute specific Bonia Group licensed brand menswear apparel (including Valentino Rudy, Carven, Saville Row, John Langford, Ungaro, Santa Barbara, and Polo Racquet Club). 85 (b) By 2009, P1 had stopped undertaking this business. (c) In mid-2009, P2 injected its Carlo Rino business into P1. (d) Under the JV, on 28.09.2009, P1 and Pham Thi Minh Phuong (Phuong) entered into a Non-exclusive Dealership Agreement, where Phuong was once again merely the D's nominee acting 90 on his instructions. (e) On 26.04.2010, the D took up 40% of P1's shares. The Second Plaintiff / Mcore Sdn Bhd (P2) 3.5 Under the JV, P2 was incorporated on 22.11.2002, with the D 95 holding a 40% stake as a shareholder and director (5.2.2003) through 388 Venture: S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 4 (a) P2 sold the Bonia Group's products under the Bonia, Sembonia, Bonia Uomo and Carlo Rino brands. (b) P2 commenced business with D via a Non-exclusive 100 Dealership Agreement (09.12.2003) between P2 and D’s nominee, Hanh (L.141, pp.3-23). (c) On 05.05.2005, D replaced Hanh with another nominee, Pham Thi Minh Phuong (Phuong), via a new Non-Exclusive Dealership Agreement with P2 (L.141, pp.26-45). 105 (d) On 28.09.2009, the Ps entered into separate Non-Exclusive Dealership Agreements with Phuong because Phuong was the D's nominee acting on his instructions. (e) The Agreements appointed Phuong as a non-exclusive dealer to sell and market the Bonia Group's products in Vietnam 110 (L.141, pp.88-107, pp.153-170) [4] In a nutshell, the present case revolves on the issue of: 4.1 Non-Exclusive Dealership Agreement (09.12.2003) between P2 and the purported nominee of the defendant (Van Thuy Hanh, which was 115 subsequently replaced with Pham Thi Minh Phuong (05.05.2005) in a new Non-Exclusive Dealership Agreements that incorporates an automatic renewal clause unless it is expressly terminated. This is to promote and sell Bonia Group products in Vietnam. 120 4.2 The D: (a) Denies the alleged agency/nominee relationship in these Non- Exclusive Dealership Agreements. (b) The Ps pointed out five pertinent circumstances to support their arguments: 125 (i) The 2008 Guarantee signed by the D that recited the position. (ii) The negotiation on behalf of Phuong for compensation in the buy- out episode. (iii) The D’s involvement in Phuong’s operation in Vietnam. S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 5 (iv) The D’s director’s fee paid in Vietnam from Phuong’s Vietnam 130 operations and (v) The use of 388group.com and/or 388group.com.vn domain name, where the D and Phuong operated from a 388 Joint Stock Company. 4.3 In pursuit of this venture: 135 (a) The D had acquired a 40% equity stake in P1. (b) Was a duly appointed director in P2. (c) As a director of the company, it is trite law that he owes fiduciary duties and must at all times act in the best interest of the company that he sits in and, accordingly, in law, must avoid any 140 potential conflict in interest as mandated by common law and the Companies Act 1965/2016. 4.4 The Ps alleged that the D, by himself and/or through his alleged nominee Phuong, breached the express and/or implied terms of the 145 agreements when: (i) They failed to furnish the required financial records of the operation to the Ps as agreed, (ii) They failed to remit the sums to the Ps. (iii) They prevented the Ps from retrieving sales and stock data. 150 (iv) They denied access to the Goldsoft Consignment and Inventories system (server disconnected), and (v) They removed Ps’ representatives from the Vietnam office. 4.5 Several letters of demand to remedy the defaults were ignored, 155 leading to the termination of the Agreements (21.06.2011). An attempt to subsequently conduct inventory and stock take was denied. The plaintiffs’ claims for breach of contract, general damages, exemplary damages, and costs are as set out in the SoC. 160 [5] On 18.03.2021, the plaintiffs filed the present suit against the D, the prayers stated in the Statement of Claim (SoC). 165 S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 6 [6] The witnesses at the trial are as follows: - (a) Plaintiffs’ witnesses: PW1: Datuk Chiang Heng Kieng (Director of BCB) PW2: Dato’ Sri Chiang Fong Yee (Group MD CRG/Director 170 (Non-Independent Non-Executive) of BCB PW3: Ong Boon Huat (Exec. Director of CRG) (b) Defendant’s witnesses: DW1: Leong Tat Yan (the defendant) 175 DW2: Van Thuy Hanh (Vietnamese businesswoman) DW3: Lu Ngoc Da Lan (Chief Accountant to Phuong) DW4: Hua Thi Ngoc Ha (Employee of Phuong) DW5: Vu Thi Thu Hien (Employee of Phuong) DW6: Nguyen Phi Giao (Employee of Phuong) 180 DW7: Pham Thi Minh Phuong (Vietnamese businesswoman) THE PLAINITIFFs’ CASE [7] I observed the Ps' arguments (L.202 & L.206) in canvassing and 185 ventilating their position as follows: 7.1 The Ps argued that: (a) Phuong is, in the circumstances of the case, undoubtedly the D’s agent in the foregoing transactions with the Ps (see s.135 Contracts Act 1950). 190 (b) As the principal to Phuong, the D is the actual contracting party therein, and action can be taken against him (see s.179 Contracts Act 1950). (c) Notice(s) issued to Phuong shall be as if it had been given to the D (see s.182 Contracts Act 1950). 195 (d) As an officer and director of P2, the D owed fiduciary duties under section 132 of the Companies Act 1965 (at the time). He is to act in the best interest of the company at all times. (e) Zaharen bin Hj Zakaria v Redmax Sdn Bhd & other appeals [2016] 5 MLJ 91, CA was cited that ruled a director and an 200 employee must discharge their responsibilities in a manner S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 7 that befits the interest of the company and not in a way, detrimental to the interest of the company. (f) Avel Consultants Sdn Bhd & Anor v Mohamed Zain Yusof & Ors [1985] 2 MLJ 209, SC was also cited that as a fiduciary 205 in law, a director is precluded from acting in a manner which brings a conflict of interest between him and the company. 7.2 The Ps raised specific preliminary legal and evidentiary objections set out in (L.202, annexures 2-5, pp.60-75) concerning the Ds at the 210 trial. My observation: From the evidence at the trial, I am inclined to believe the appropriately set out arguments of the Ps on these objections. It is 215 for the D to conduct his defence to refute those objections and to tilt the scale of evidence concerning the following issues, which I find unconvincing. Rules are meant to be complied with saved in justifiable circumstances. Consequently, I allowed the objection against the D in the following sub-paragraphs (a)-(d): 220 (a) Pleading Objections (L.202, annexure 2, pp.60-62): Raising non-pleaded issues. The Ps pray that they be disallowed. (b) Hearsay Objections (L.202, annexure 3, pp.63-65): Hearsay 225 evidence. The Ps pray that several hearsay evidence of the D and his witnesses be disallowed. (c) Failure to cross-examine (L.202, annexure 4, pp.66-68): The Ps witnesses were not cross-examined on certain parts of the 230 D’s case that Phuong had testified. The Ps pray that her evidence in this regard must be disallowed. (d) Part C Documents (L.202, annexure 5, pp.69-75): The D produced three recordings and a transcript which were of 235 S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 8 questionable origin (IDD1 and IDD2). The Ps pray that they should not be admitted for reasons stated in the annexure. 7.3 The Ps argued: 240 (a) The Ps argued that Hanh and Phuong were, in fact, the nominees who fronted and carried out the instructions and business affairs of the D in Vietnam. In establishing this fact, the Ps relied on the following evidence: 245 (i) The evidence of PW1 (BCB’s former MD) testified that the business transaction with D started in 2000, who began dealing in Bonia’s products in Vietnam on a cash-and-carry basis. The D later met PW1, seeking a favourable discount on bulk 250 purchases to develop Bonia’s business in Vietnam. This led to a proposal by the D for a proposed joint venture (JV), leading to a site visit in Vietnam. During this visit to Vietnam, PW1 was introduced to Hanh, D's 255 girlfriend (the retail manager of D's company in Vietnam). The D informed PW that he conducted his business in Vietnam through Hanh. After a thorough deliberation between them, it was agreed that (1) 260 the Bonia Group would supply Bonia’s products to the D’s nominee (Hanh), who would be under the direct supervision of the D, (2) the D would be exclusively responsible for all operational aspects of the business in Vietnam, (3) the parties would share the profits from the proceeds of the sale after the usual deduction of operational costs 265 and expenses, and capital expenditure (PW1, WS L.168 QA 4-9). The D objected to the evidence of PW1, saying that the Ps did not plead these. I, however, agree with the Ps that 270 these constitute evidence. It is clear that O.18 r.7(1) RC 2012 only requires material facts, not evidence, to be pleaded. It has always been the Ps case that Hanh and S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 9 Phuong were the nominees of the D. I find no basis for the D’s objection. RHB Bank Berhad v Dong Haeng 275 Industries Sdn Bhd [2002] MLJU 657, HC; and YKL Engineering Sdn Bhd v Sungei Kahang Palm Oil Sdn Bhd & Anor [2022] 6 MLJ, FC was cited in support that only material facts in a summary form need to be pleaded and not evidence. It has been discovered that this is the 280 first time the D objects to this issue. It was never raised at the trial. As ruled by the Supreme Court in Superintendent of Lands and Survey, 4th Division & Anor v Hamit B. Matusin & 6 Ors [1994] 3 MLJ 185, SC, it is too late to raise the objection now and take the other party by 285 surprise. The D should have objected right there and then at the trial. (ii) The evidence of PW1 (BCB’s former MD) above was corroborated by the evidence of PW2 (director of BCB and Group MD of CRG). 290 (see L.169, PW2’s WS, Q&A 9-10) and Notes of Evidence (NOE). (iii) The Ps also argued that the D had: (1) had introduced Hanh as his nominee in Vietnam, (2) Hanh was readily interchangeable with Phuong in 2005 by the D. 295 (iv) In his email (18.11.2005) to PW3, the D referred to himself and his nominee Hanh as “Leong & Partners”. (L.142 pp.33-35) (v) When Phuong was appointed under the Non-Exclusive Dealership 300 Agreements with the Ps, she executed the Agreements as instructed by the D. Even though she claimed to have discussed possible amendments, no evidence to support that argument was produced. It was merely a bare assertion. 305 The D objected to the evidence of PW2 (director of BCB and Group MD of CRG) corroborating the evidence of PW1, as the events transpired before PW2’s time and constituted hearsay S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 10 evidence. The Ps argued that contemporaneous had been adduced (L.167, pp.3-10; L.142, pg.213, 215-217). PW3 (ED of CRG 310 and former Senior Corporate Finance Manager of BCB) on the disconnection of the server to Malaysia are grounded on letters by BCB, CRG, P1 and P2 (L.167, pp.3-5, 6-7, 8-10; L.142, pg.17-20, 21- 24, 215-217). These are not hearsay evidence. I find no merits in this objection. 315 (b) Under the proposed JV, P2 was established on 22.11.2002. The D was appointed as a director on 5.2.2003. The D acquired a 40% equity stake in P2 through his company in Vietnam, 388 Venture, by capitalising his business assets in exchange for the 320 paid-up shares of P2. Effectively, P2 acquired the D’s Vietnam’s retail business. (L.142, pp.8-9) (c) The D claimed that he had purchased the Vietnam business from Hanh, but no compelling evidence was produced in support 325 thereof. Throughout the trial, he could not prove that he owned any business in Vietnam. Even Hanh could not corroborate the D’s position. In his email to PW3 on 18.11.2005, he said, “We opted to divest 60% of our interest to Bonia Corp and come to a JV several years ago. “We” clearly refer to himself and Hanh (the 330 nominee) (L.142, pp.33-35). (d) Before the execution of the Agreements (Non-Exclusive Dealership Agreements) on 19.05.2008) by Phuong and P2, the D had 20.03.2008 executed a letter of Guarantee to guarantee 335 the performance of Phuong unconditionally and to provide an indemnity to P2 (L.141, pp.66-85). The D never denied he executed the Guarantee. PW2 (director of BCB and Group MD S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 11 of CRG) gave evidence that the Guarantee was required because (1) there was an increase in trading volume and stocks 340 in Vietnam, (2) the D and Phuong had slowed down the remittance of net sales proceeds to Malaysia causing an accumulation of substantial outstanding amount, (3) P2’s stocks and sales proceeds were kept and controlled by D and Phuong in Vietnam, and (4) they made withdrawals unknown to nor 345 consented to by P2. D had requested P2 to enter into the Agreements, as seen in the said Guarantee. The D undertook to indemnity on a full indemnity basis against all losses, damages, costs, expenses or otherwise 350 which may be incurred by the principal because of any default on the part of Phuong. It was argued that D had no reason to undertake these heavy financial obligations if D was merely Phuong’s introducer to the Ps. He had to because he was Phuong's principal. (Letter of Guarantee, L. 142, pp.10-12) 355 (e) An email on 23.07.2009 by Phuong’s staff (Tuong Vi) to PW3 concerning the new Non-Exclusive Dealership Agreement that shows Phuong and Hanh were easily exchangeable. (L.142 pg 55) 360 (f) The D was heavily invested in Phuong’s daily operations: (i) The D frequently remitted payments from Phuong to the Ps. (ii) Emails addressed to Phuong were answered by the D. (iii) The D is fully authoritative over Phuong and other employees in 365 Vietnam's retail operations. (iv) The D determined the sub-dealers' commission rates. (vi) The D secured counters and outlets and negotiated rent rates. (vii) The D decides on advertising and promotional activities for the Vietnam retail business. 370 (viii) The D makes administrative determinations on workforce issues in Vietnam. S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 12 (ix) When details for unremitted commissions were requested, D and not Phuong addressed the issue. (x) the D approved four volumes: the Ps payment vouchers, debit 375 advice, credit advice, and receipt vouchers. (xi) Even Phuong, in her evidence, supports the position that the D (together with Alex and Liew) controlled most of the dealership activities in Vietnam. 380 The D objected to the foregoing evidence by saying that the Ps did not plead these. Similarly, as I have observed in paragraph 7.3(a)(i) above, these constitute evidence. It is clear that O.18 r.7(1) RC 2012 only requires material facts, not evidence, to be pleaded. It has always been the Ps case that Hanh and Phuong 385 were the nominees of the D. I find no basis for this objection by the D. There was no objection raised at the trial. To do it now would be to take the other party by surprise. (g) The D and all the other staff of the Vietnam operation use the 390 “388group” domain name (388group.com and/or 388group.com.vn), which is related to the Vietnam company that the D and Phuong operated from (388 Joint Stock Company). Although Hanh and Phuong are supposedly separate businesswomen, they use the domain name “388group.com”, owned by the D in Malaysia. 395 (L.142, pp. 26-30, 36-39, 41-45, 49, 52-59, 62-63, 70, 73-77, 81-87, 90, 94, 95, 100, 117, 126, 130,133-135,138-142,146-147,150-151,167,168-172, 175-176,201) (h) It is not disputed that D received his directorship fees via debit notes issued by Phuong at his request. That was the extent of 400 his control in the Vietnam retail operations. (i) Phuong’s position as a nominee is further magnified by the fact that D took an active role in bargaining to secure Phuong’s compensation during the buy-out negotiations with BCB and 405 CRG. This buy-out (the D’s 40% equity stake in the Ps) was S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 13 caused by the many breaches committed by the D and Phuong as set out in paragraph 47 of the SoC. When the Ps opted not to compensate Phuong, the D said he would pay Phuong’s compensation himself. It must be noted that Phuong is 410 supposedly the principal in the Agreements, and she sought no compensation, yet he takes it upon himself to ask for it. It raises questions. It has to be that Phuong is the nominee. No evidence was tendered at the trial to show that Phuong had asked D to seek compensation for the significant losses that she was 415 supposed to have suffered. It reflects adversely on the credibility of their evidence at the trial, particularly the evidence of the D. (L.142, pg.216; L.178, Q&A 4, para 10, L.198 Q&A 12, para7) My observations at the trial: 420 (i) In my considered judgment, taking the facts established at the trial in the foregoing paragraphs (a)-(i) in its totality allows me to come to a safe conclusion that D was more than just coordinating the retail business in Vietnam, he was to state the obvious from this evidence having the 425 authoritative control of the retail business through his nominee, first Hanh, and followed by Phuong. (ii) To hold otherwise would not accord with the facts in the above paragraphs (a)-(i). The totality of the evidence led me to arrive at this conclusion. (iii) I also find the evasive demeanour of the D at the trial had adversely 430 impacted the credibility of his evidence. This was appropriately captured by the Ps in Annexure 6 hereof. (L.202 pg 76-83). 7.4 It is the Ps case that the D and Phuong in which I agree that they colluded with each other to breach the Agreement with the Ps: 435 (a) Failure to provide financial records promptly. This is well recorded in the P's contemporaneous correspondence. It is a breach of Clause 7.3(b) of the Agreements that the dealer shall further furnish daily evidence of receipts of proof of sales and 440 S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 14 bank in slips no later than the next working day from the day the said bank-in slip is issued. (L.142, pp.14-15, 17-20, 21-24, 93, 156): (i) There was no response from D or Phuong to any of the letters issued 445 to them, which can be taken as a tacit admission of the truth in those letters. The Ps cited in support, Wong Hin Leong David v Noorazman Bin Adnan [1995] 3 MLJ 283, CA ruled that the party receiving the letter must answer it if he means to dispute the facts. The Federal Court in Dream Property Sdn Bhd v Atlas Housing 450 Sdn Bhd [2015] 2 CLJ 453, FC said that it is in the ordinary nature of a businessman to immediately refute any proposition injurious to him contained in the letter and not to let it stand. (ii) The Ps also argued that in the context of this case, a term can be 455 implied where it is necessary to give business efficacy where the term is evident that the financial records should be furnished promptly. The Federal Court ruling in Akitek Tenggara Sdn Bhd v Mid Valley City Sdn Bhd [2007] 5 MLJ 697, FC was cited that an implication of this nature can be made in two situations: (1) where it 460 is necessary to give business efficacy to the contract, and (2) where the term implied represents the obvious, but unexpressed, intention of the parties. (iii) Those financial records are being withheld by D and Phuong. The 465 Ps would be grappling in the dark on the state of affairs and the financial aspects of the retail business in Vietnam. Clause 7.3(a) of the Agreements requires that sales proceeds that exceed the pre- determined cash float are required to be remitted to the Ps immediately. But that cannot be ascertained without the necessary 470 financial records. Clause 16.2 says that the Ps shall have absolute access to the Dealer’s books of accounts. (L.141, pp.93, 97-98 156, 95, 158, 160-161) (iv) D and Phuong had breached Clause 7.3(b) of the Agreements. 475 (b) The D and Phuong failed to remit sums above the pre- determined cash float of USD200,000 for the Ps: (i) The auditor found that D and Phuong, in breach, had retained a cash 480 float of USD 565,194.49 in Vietnam. A request by the board of directors of BCB for D and Phuong to remit the excess money, together with handing over the cash books every week, was ignored. (L.142, pg.13) 485 (ii) In March of 2011, the Ps discovered that D and Phuong had failed to remit USD365,088.60, which should have been remitted between 7.8.2009 and 21.5.2010. Despite not remitting the money, D and S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 15 Phuong deducted the sum from the Ps cash books. When queried, the D quickly remitted USD 367,259.68 in several tranches (4th, 8th, 490 and 10th March 2011) to the Ps. It is clear evidence of impropriety. In a meeting on 1.6.2011 in Vietnam, Da Lan and Tuong Vi admitted to PW3 (ED of CRG and former Senior Corporate Finance Manager of BCB) that they failed to remit the money, though it had been deducted from the Ps cash book. This evidently breaches Clause 495 7.3(a) of the Agreements. (L.167, pg.4; L.193 PW3’s WS, Q7A 8) (c) The D and Phuong severed the server communication with 500 Malaysia. They denied access to the Goldsoft System (designed to track consignment stock levels) from 14.05.2011 onwards, preventing the Ps from retrieving the sales and stock data in Vietnam. There was no response from the d or Phuong. In his email (13.06.2011), the D admitted that the server had 505 been disconnected but claimed it had nothing to do with him. He elected not to rectify the situation with the server. Without access to the Goldsoft System, the Ps could not track the stock level in Vietnam. This breaches Clause 9.1.10 of the Agreements for failing to keep true and accurate sales and 510 inventory records of the outlets and/or the implied terms of the Agreements. (L.167, pg.4, pg.6, L.142, pp.17-20, pg.217) 515 (d) BCB had two Representatives in the Vietnam office to assist D with the retail business (Alex & Liew). They were removed by D and Phuong on 16.5.2011, as explained by PW2 (director of BCB and Group MD of CRG). A letter on 15.06.20111 to the D sought an explanation but was ignored. In his email dated 520 30.05.2011, the D admitted that Phuong had removed them. This breaches Clauses 7.2(a) and 9.1.14 of the Agreements (on S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 16 the requirements for authorised representatives in the retail office. (L.169, pg.24, Q&A 34(ii); L.142, pp.17,1, 2139) 525 In my observation at the trial: (i) These alleged breaches in the foregoing by D and Phuong had been satisfactorily proven. (ii) The explanation afforded by D and his witnesses is devoid of merits 530 and unconvincing. (iii) It is apparent from the evidence that the actions of the D and Phuong were deliberate and calculated in their resulting consequences. (iv) Evidently, as a director of P2, he had breached his fiduciary duties. There are sufficient materials before me to conclude that his interest 535 has been brought into conflict with the interest of the company he is bound to protect. His breach of duty adversely impacted the Ps and, by law, must account for it. 540 (e) The D had objected to the admissibility of BCB’s without prejudice letters from being admitted into evidence at the trial. However, as pointed out by the Ps: (i) I had already considered this issue before the trial and admitted the without prejudice documents in evidence. 545 (ii) After considering the parties' submissions on the issue, on 27.09.2023, I allowed these documents to give the Court a more apparent appreciation of the facts between the parties. (iii) The D is estopped from attempting to relitigate this issue. (iv) See Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd 550 [1995] 3 MLJ 189, SC; and Hartcon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1996] 2 MLJ 57, CA. 7.5 The D: (a) Seek to invoke section 114(g) of the Evidence Act 1950 555 (adverse inference) for the failure by the Ps to call CSS, Alex and Liew as witnesses for the Ps: (i) The Ps argue that CSS, Alex and Liew do not feature in their case. They were key figures in D’s defence, yet he elected not to call them to offer evidence to establish his claim of the facts. 560 (ii) It is misguided for the D to attempt to reverse his burden of proof and place it on the Ps. Nothing can stop the D from calling them to offer evidence if he thinks they are crucial. S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 17 (iii) Section 114(g) only applies when there is withholding or suppression of evidence, but not for failing to produce evidence: See Siew Yoke 565 Keong v PP [2013] 4 CLJ 149, FC. (iv) The Ps pointed out that the D relied heavily on CSS to establish his defence, which supposedly would supply the allegedly crucial evidence on the background to the formation of the JV and the position of Hanh and Phuong. It was also pointed out that CSS was 570 mentioned 35 times in the D’s Amended Defence and 41 times in his Witness Statement (DWS). If at all, section 114(g) should be invoked against the D for his failure to call CSS. (v) By failing to call CSS, the D cannot provide any basis for his claim of having a personal JV arrangement with the Bonia Group and the 575 position of Hanh and Phuong. It becomes merely speculative with unfounded assertions in his defence. I find this argument to be without merit. The submission by the D on section 114(g) concerning the facts above will not stand legal scrutiny. 580 (b) The D argues that the Ps are prohibited from introducing evidence that Hanh and Phuong are the D’s nominee on account of sections 91 and 92 of the Evidence Act 1950: (i) The D submitted that Ps cannot introduce evidence to contradict, 585 vary, add to, or subtract from the Agreements. (ii) The Ps took the position that they never disputed the written terms of the Agreements. That is not the issue. What they are saying is that Hanh and Phuong are nominees for the D. In this instance, at the trial, the D (1) never objected to the admissibility of the evidence at 590 the trial, (2) Sections 91 and 92 do not apply in the circumstances, and (3) the evidence is admissible under section 92(f). (iii) In his evidence (DW1), the D expressly disputed in his Amended defence that Phuong was his nominee contrary to the Ps case, rendering it an issue to be tried. At the trial, the D led evidence to 595 disprove the claim that Phuong was his nominee. (vi) He, therefore, had waived his objection. The proper time to object was when the evidence was introduced, not at this juncture: Annie Solomon v BHMF Realty Sdn Bhd & Ors [2014] 1 MLJ, 57, HC. 600 In the circumstances of the case, I find the D’s submissions on the issue to be overreaching. There is no error in the Ps adducing evidence to establish that Phuong was the nominee of the D. The terms of the Agreements are not in dispute, nor are the Agreements. There is no attempt to vary or contradict the Agreements. 605 S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 18 7.6 In the Ps final argument: (a) The Ps no longer pursue the tort of inducement of breach of contract against the D, leaving only an action for breach of contract and breach of fiduciary duties (applicable to P2 as he is a director). 610 (b) Contrary to the position taken by the D, the Ps position is that the D’s JV was with BCB, as explained at the trial. While the Ps dealings post-incorporation was under the understanding between BCB and the D, their contractual relationship for the sale of the products was with the D. 615 (b) The D’s arguments that he did not receive the letters (15.06.2011 and 21.06.2011) that were not copied to him were untenable, as it was served on his nominee (s.182 Contracts Act 1950). 620 (c) The Ps argued that the D did not adduce any evidence other than claiming that the criminal investigation against Phuong by the Vietnamese authorities ended up with no further action. It is purely a bare assertion. 625 I find this issue by the D does not adversely impact this proceeding. It is two separate issues, one civil and one criminal, procedurally distinct from each other and carries different burden. One is in a foreign jurisdiction (Vietnam), while the present proceeding is in local jurisdiction. I am only concerned with the current proceeding before me. 630 (d) In response to D’s assertion that the evidence of PW1 (BCB’s former MD PW2 (director of BCB and Group MD of CRG), PW2 (director of BCB and Group MD of CRG), and PW3 (ED of CRG and former Senior Corporate Finance Manager of BCB) should 635 be taken with caution as they are not disinterested parties. S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 19 However, no plausible evidence was produced except conjectures to establish this accusation. As mere bare assertions, it is trite law that there will be no evidential foundation to support this argument by the D. 640 7.7 Occasioned by the breaches and wrongful conduct of the D, the Ps claims to have suffered losses: (a) P1: Unremitted sales proceeds: RM946,496.39. (L.146, pp.76-99) 645 (b) P2: Unremitted sales proceeds: RM2,249,751.08 (L.126, pg.47, para 56; Enclosure 146, pp.100-151) The D had offered no evidence to contest or contradict these figures. 650 (c) Unreturned consignment stocks after the termination of the Agreements: (i) P1: RM3,303,671.00 (L. 112, pg.47, para 55) 655 Phuong admitted to holding on to the consignment stocks. She sold most of the stocks but did not remit the sales proceeds. (L.157, pg.70, lines 1-19). 660 (ii) P2: RM14,871,167.03 (L.112, pg.47, para 57). Phuong admitted to holding on to the consignment stocks. She sold most of the stocks but did not remit the sales proceeds. 665 (L.194, pg.70, lines 1-19). In the circumstances, the Ps prays for an order in terms of its prayers in the SoC with costs. 670 675 S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 20 THE DEFENDANT’S CASE [8] I observed the Ds (l.200 AND l.204) in canvassing and ventilating for their defence as follows: 8.1 The D version of the facts are as follows: 680 (a) The D met with the big boss of the Bonia group of Company (BGC), Chiang Sang Sem (CSS), where they supposedly entered into an oral JV agreement to carry out business in Vietnam. He claimed that CSS wanted him to assist in running and expanding BGC’s business in Vietnam. At this time, the Ps 685 were not yet a subsidiary or a member of BGC. (b) The oral JV arrangement with CSS allegedly required the D to act as a local intermediary and co-ordinator for BGC in Vietnam. He was also responsible for scouting for Vietnamese businesspersons to act as dealers for BGC and to assist in 690 resolving disputes or issues between them. In this instance, the D introduced Phuong (DW7) and her brother, Phan Ngoc Binh. (c) In the seven agreements that D arranged, he was only asked to execute a letter of guarantee for the agreement involving Phuong (19.05.2008). This letter of Guarantee was witnessed 695 by CSS (L.142, pp.10-12). (d) The JV arrangement went smoothly until 2011, when disputes over the retail business in Vietnam arose between BGC’s management and the D. My observation at the trial: 700 (i) CSS was never called to offer evidence to corroborate the facts above as alleged by the D. Without any supporting evidence, the allegations of facts on CSS are rendered unfounded. It has no foundation. S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 21 (ii) In the circumstances, in my considered judgment, I place no weight on these allegations. 705 (iii) As rightly pointed out by the Ps, he should have been called since CSS is crucial to establish the allegation of facts by the D. If the Ps elected not to call CSS because he is not critical to the Ps' case, then if needed, there is nothing to prevent the D from calling CSS to support the D’s facts. That was not done. 710 8.2 The D, in his submissions, raised the issue of the admissibility of BCBs without prejudice letters that had already been ruled admissible for the Court after considering the submissions of both parties on the matter on 27.09.2023. The D cannot be allowed to 715 relitigate the issue at this juncture. 8.3 The D raised the issue of the supposed criminal investigation of Phuong (DW7) by the authorities in Vietnam after the criminal complaint lodged by the Ps. It was alleged that after the failure of this criminal complaint, the Ps took out three civil actions against the 720 D in the Kuala Lumpur High Court in (1) 22NCVC-678-2011, (2) 22NCVC-49-01/2012, and (3) 22NCVC-586-07/2012. At the filing of the present suit, none of the three earlier cases had been withdrawn or discontinued by the Ps. As I had observed: 725 (i) The criminal matter in Vietnam is not the concern of this present proceeding. (ii) As for the earlier three civil suits, the D failed to adduce any evidence that the Ps did not have the genuine purpose of seeking redress against the D, nor has he suffered any damage from it. 730 (iii) The first two suits could not be served on the D, and all three cases were discontinued well before the present suit was filed. (iv) As pointed out by the Ps, the D failed to meet the requirements for the tort of abuse of process. (v) I find the issue of the previous three civil suits inconsequential to the 735 present proceedings. S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 22 8.4 The D argued that the evidence PW1 (BCB’s former MD PW2 (director of BCB and Group MD of CRG), PW2 (director of BCB and Group MD of CRG), and PW3 (ED of CRG and former Senior 740 Corporate Finance Manager of BCB) must be treated with caution as they are an interested parties in the proceedings. In my judgment, casting adverse aspersions on the credibility of these witnesses with speculative assertions or conjectures is not good enough. As I 745 have said, no plausible evidence or compelling evidence was adduced but for these speculations. It is trite the Court will not act on speculations. There is no reason for the Court not to accept their evidence. 750 8.5 The D argued the issue of un-pleaded facts by the Ps being raised at the trial, (1) PW1 being introduced to Hanh (DW2) as the D’s girlfriend, (2) PW2’s evidence that Phuong (DW7) was the D’s nominee in Vietnam, and (3) PW3’s allegation that Phuong was introduced by the D as his nominee during a visit at the HCMC in 755 2005. As I had earlier observed, I agree with the submissions of the Ps that these issues constitute evidence. It is clear that O.18 r.7(1) RC 2012 only requires material facts, not evidence, to be pleaded. It has always been the Ps case that Hanh and Phuong were the nominees of the D. I find no basis for this objection 760 by the D. There was no objection raised at the trial. To do it now would be to take the other party by surprise and is unfair. 8.6 The D argued that the allegation of Phuong (DW7) being his nominee is unsupported by any documentary evidence. As a matter 765 of fact, (1) the Agreements clearly stated that Phuong was the appointed dealer in Vietnam and not the nominee of the D, (2) the letter of Guarantee (20.03.2009) described her as a dealer, (3) various letter by the Ps on the waiver of fee payment refers to he as the dealer, (4) the BBC's without prejudice letters do not refer to her 770 as the nominee of the D, (5) there no reference to any trust deed S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 23 between Phuong and the D on that position, (6) the Annual Reports of BCB and P2, does not report on director related transactions. In the circumstances, D further argues that section 91 and 92 of the Evidence Act 1950 applies to deny any attempt by the Ps to vary or 775 contradict the Agreements involving Phuong as a dealer and not a nominee of the D. I found the arguments of the Ps compelling to negate the D’s arguments above: (i) PW2 (director of BCB and Group MD of CRG) testified at the trial that referencing Phuong as a dealer in all the Agreements and waiver letters 780 was structured by the D, who had pre-arranged all the documents. (ii) In the letter of Guarantee, D clearly stated that, at his request, the Agreement was executed with Phuong. This indicated his position as a principal in the transaction. (iii) BCB and CRG are major shareholders in the Ps. PW2 is a director of the 785 Ps BCB and CRG who had executed several letters addressed and copied to the D. What allegation made by BCB equally applies to the Ps. (iv) PW2 explained that there was no need for the Annual Reports to declare director-related transactions since all dealings were through the D’s nominee (Phuong). 790 (v) Even the D agreed that there was no need for the Ps Annual report to report this. 8.7 The D argued that the alleged five indicators in the Ps submissions do not establish Phuong as the D’s nominee: 795 (a) The letter of Guarantee clearly says that Phuong was a dealer. The D’s obligations under the Guarantee were in his capacity as a guarantor, not as a principal. The D only guaranteed one of the Agreements (2008), not all. The Ps argued that the Guarantee in 2008 clearly says that the dealership 800 agreement with Phuong was entered at the request of the D. Though the Guarantee was limited to the 2008 Agreement, for all intent purposes, the Ds was referred to as the guarantor of Phuong to the Ps even after the expiry of the 2008 Guarantee. It has no objection from the D. The heavy financial obligations undertaken by the D to guarantee the performance of 805 Phuong are indicative of the D’s authoritative position over Phuong. The S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 24 D did not call CSS to support his argument that the Ps auditors requested the 2008 Guarantee. (b) The D was merely negotiating on behalf of Phuong when she 810 asked him to seek compensation for her during the buy-out negotiations for the D’s equity stake. However, as addressed earlier, neither adduced any evidence supporting this allegation. 815 (c) The D’s involvement in the operation of Phuong only reflects his role and function as the intermediary and co-ordinator of the business in Vietnam. It was responded to the Ps that the above argument was misguided by the D. It has always been the P's position that the D was the principal to all 820 the Agreements, which is why the D was heavily involved in Phuong’s operations. There was no objection at the material time since his involvement was consistent with his obligations as the principal to Phuong. (d) 388group.com and/or 388group.com.vn was used since DW2's 825 business involvement with P2 (2000-2011) with no complaint. Local representatives (Liew and Chai) also used such domain names in their business dealings and communications in Vietnam. Phuong, not the D, owns the 388 Joint Stock Co. The Ps responded that there are two different versions of this issue by the 830 D. In his amended defence, he claimed the domain names were created to ease communication between the D, Phuong, and the Ps agents. In his witness statement, he claimed that Hanh (DW2) made the email with the domain name for her use in her business communication with P2 and other third parties. When Phuong replaced Hanh, she inherited the email 835 with the domain name and created another one for her business use. His discrepancy in this evidence must be taken with caution. S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 25 (e) The D’s director’s fee was an agreed arrangement between the Ps and Phuong where the business accounts in Vietnam can 840 be used to settle the P's costs and expenses in Vietnam, including the D’s director’s fee from P2. The Ps responded that the D was able to get his director’s fees and dividends through Phuong in Vietnam, which shows the extent of his control over the Vietnam operations. 845 8.8 The D denied there had been any breach of the Agreements: (a) All the Non-Exclusive Dealership Agreements had expired on 30.06.2010 as stated in Section 2, Schedule 1 of those 850 Agreements. There was no extension to those Agreements. Therefore, the Ps letters of demand (04.05.2011 and 15.06.2011) are of no consequence. There could not have been a breach at the material time the LOD was issued. The Ps argued that the D never pleaded this issue, and his witnesses 855 never led any evidence on it. The D is misguided since Clause 5.1 of the Agreements says that both Agreements are renewed annually on an automatic basis unless they are terminated in writing. (b) The D also argued that there is no credible evidence to support 860 the allegation of breach of contract. Even if there are breaches of the Agreements, it was not by the D, but Phuong (DW7). In the present case, it has always been the case of the Ps that the D is the principal to Phuong. 865 (c) It was also argued that there was no evidence to support the allegation that the D/Phuong failed to deliver the financial records promptly, as requested by the Ps. It was put in evidence at the trial by the Ps that there was no rebuttal from either the D or Phuong concerning the letters issued by BCB and CRG on 870 the issue, which amounts to a tacit admission of the truth in those letters. S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 26 If they were concerned with the accuracy of the allegations, they should have refuted them by replying to those letters, which they never did. 875 (d) Regarding the failure to remit the predetermined cash float, D argued that, though delayed, the remittances had been duly completed by 10.03.2011. The burden is on the Ps to prove that the actual amount of collection above the predetermined cash float that Phuong failed to remit to the Ps. 880 The Ps responded to it: (i) The sum of USD365,088.60 was not remitted between 07.08.2009 and 21.05.2010, but a year later, in several tranches on 10.03.2011, after the Ps discovered that the sum was not remitted. That is already evidence of a breach. 885 (ii) The D and Phuong did not respond to BCB’s letter (27.10.2010) that detailed the auditor's findings that they had unlawfully retained USD 565,194.49 over the agreed cash float. (iii) They also failed to respond to BCB’s and CRG’s letters dated 04.05.2011, 15.06.2011, and 21.06.2011 on their failures to remit the 890 money. (e) The D argued that there is no evidence that the server connection was severed on 14.o5.2011, and the Ps were denied access to the Goldsoft System by Phuong or himself. 895 It was pointed out by the Ps that: (i) The D himself admitted that the server was disconnected in his email on 13.06.2011 to Chong. (ii) The Ps, BCB, and CRG letters to them (Phuong and the D) confirm that they have been locked out of the Goldsoft System since 900 14.05.2011. Phuong and the D failed to respond. (f) Removal of the Ps two representatives from Vietnam’s office is based on inadmissible hearsay evidence of PW2 (director of BCB and Group MD of CRG). 905 However: (i) The Ps showed that the D contradicted himself when he admitted in his email (30.05.2011) that Phuong and not him removed Alex and Liew. S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 27 (ii) This removal was recorded in BCB’s and CRG’s letter (26.05.2011) 910 and the Ps letter (15.06.2011) to the D. (iii) Neither D nor Phuong responded. PW2 evidence corroborates this position. In the circumstances, it was unnecessary to call Alex and Liew. 915 (g) The D counterclaim and seek compensation for the four separate legal actions based on the same facts to oppress him, where none had been withdrawn or discontinued. It is an abuse of process by the Ps. It bears repeating what was pointed out by the Ps: 920 (i) As for the earlier three civil suits, the D failed to adduce any evidence that the Ps did not have the genuine purpose of seeking redress against the D, nor has he suffered any damage from it. (ii) The first two suits could not be served on the D, and all three cases were discontinued well before the present suit was filed. 925 (iii) As pointed out by the Ps, the D failed to meet the requirements for the tort of abuse of process. I find the issue of the previous three civil suits inconsequential to the present proceedings and is a distraction, and there is no merit in this 930 counterclaim by the D. This counterclaim is not proven. In the circumstances, the P failed to discharge its burden, and its action must be dismissed with costs. 935 THE LAW [9] It is trite in law that all cases are decided on the legal burden of proof being discharged. It is the acid test applied in any particular case. 9.1 The burden of proof in establishing its case is on the plaintiff. It is 940 not the Ds' duty to disprove it. The evidentiary burden is trite that those who allege a fact are duty-bound to prove it (see s.101, 102, and 103 of the Evidence Act 1950). 945 S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 28 9.2 In Selvaduray v Chinniah [1939] 1 MLJ 253, 254 (CA) held: "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 950 defendant can say it is wholly immaterial whether I prove my case or not. You have not proved yours". 9.3 Johara Bi bt. Abdul Kadir Marican v. Lawrence Lam Kwok Fou & Anor [1981] 1 MLJ 139, (FC) held: 955 "It was all a matter of proof and that until and unless the plaintiff has discharged the onus on her to prove her case on a balance of probabilities, the burden did not shift to the defendant, and no matter if the defendant's case was completely unbelievable, the claim against him must in these circumstances be dismissed. With respect, we agree with this judicial approach." 960 [10] Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 1 CLJ 269, FC. The distilled principles, among others, are: 10.1 Where an agreement is not regulated by statute, parties are at 965 complete liberty, under the doctrine of freedom of Contract, to agree on any terms they think fit. 10.2 The role of the Court is to interpret the Contract sensibly (a commercially sensible construction). See Loh Wai Lian v SEA 970 Housing Corporation Sdn Bhd [1987] 1 LNS 37, PC. 10.3 The starting point is for the Court to recognise that in an action for a breach of Contract, it is for the Court to determine who is the innocent party and who is the guilty party. 975 10.4 A contract breaker must pay damages to the innocent party. However, if he has made any payment under a contract (not being a true deposit for the purchase of movable or immovable property), the contract breaker is entitled to have that payment set off against 980 the damages he has to pay. However, he cannot seek to recover S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 29 any benefit he may have conferred upon the innocent party where he is guilty of breach of Contract. Were it otherwise, a contract breaker could take advantage of his wrong. This is against the principle and the policy of the law. 985 10.5 The FC cited Attorney General of Belize v. Belize Telecom Limited [2009] UKPC 11, where when delivering the Advice of the Board, Lord Hoffmann said: “The Court has no power to improve upon the instrument which it is called upon 990 to construe, whether it be a contract, a statute or articles of association. It cannot introduce terms to make it fairer or more reasonable. It is concerned only to discover what the instrument means. However, that meaning is not necessarily or always what the authors or parties to the document would have intended. It is the meaning which the instrument would convey to a reasonable 995 person having all the background knowledge which would reasonably be available to the audience to whom the instrument is addressed: see Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, 912-913. It is this objective meaning which is conventionally called the intention of the parties, or the intention of Parliament, or the intention of 1000 whatever person or body was or is deemed to have been the author of the instrument.” 10.6 A contract is to be interpreted under the following guidelines: (a) A Court interpreting a private contract is not confined to the four 1005 corners of the document. It is entitled to look at the factual matrix forming the background of the transaction. (b) The factual matrix that forms the transaction's background includes all material reasonably available to the parties. (c) The interpreting Court must disregard any part of the 1010 background that is declaratory of subjective intent only and (d) The Court should adopt an objective approach when interpreting a private contract. See Investors Compensation Scheme Ltd v. West Bromwich Building Society [1998] 1 All ER 98. As Lord Clyde said in 1015 Bank of Credit and Commerce International SA v. Munawar Ali [2001] 2 WLR 735: “The knowledge reasonably available to them (that is to say, the parties to the Contract) must include matters of law as well as matters of fact. The 1020 problem is not resolved by asking the parties what they thought they S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 30 intended. It is the imputed intention of the parties that the Court is concerned to ascertain…. The meaning of the agreement is to be discovered from the words they have used and read in the context of the circumstances in which they made the agreement. The exercise is not one 1025 where there are strict rules but one where the solution is to be found by considering the language used by the parties against the background of the surrounding circumstances”. [11] The Federal Court in Michael C. Solle v United Malayan Banking 1030 Corporation [1986] 1 MLJ 45, FC observed that the principles of construction to be applied are that the parties' intentions are gathered from the language used. They are presumed to have intended what they say. The common universal principle is that an agreement ought to receive that construction, which its language will admit, that will best effectuate the 1035 parties' intention to be collected from the whole arrangement. The Courts are to give effect to the terms of the Contract (if any). FINDINGS 1040 [12] I have examined all-cause papers, the evidence at the trial, and the parties' respective submissions in canvassing for their position in the present suit. Considering my observation in the totality of the evidence and my observations in the parties' respective arguments in the above paragraphs [7] 7.1-7.7 and [8] 8.1-8-7, I find that: 1045 12.1 In line with the principles stated by the Federal Court in Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 1 CLJ 269: (a) The starting point is for the Court to recognise that in an action for a breach of Contract, it is for the Court to determine who is 1050 the innocent party and who is the guilty party. (b) A breach of Contract is said to occur when a party to a Contract expressly or impliedly fails or refuses to perform or fails to S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 31 perform satisfactorily one or more of his contractual obligations. 1055 I am satisfied with the Ps' evidence at the trial that Phuong is the nominee of the D. They (Phuong and the D) have colluded and are collectively in breach of the Agreements to the detriment of the Ps. 1060 (c) I find D has failed to establish his defence to exonerate himself from this suit. I take his evidence with abundant caution. His evasiveness and farfetched testimony at the trial adversely impacted the credibility of his evidence. 1065 (d) The D needed to adduce the required genuine and compelling evidence to tilt the scale of evidence in his favour but failed to do so. Besides bare assertions and suggestive evidence, no convincing materials were adduced to establish D’s case. 1070 (e) I have examined the Bundles of Documents of parties (L.136- L.153) and considered the respective learned counsels' arguments. However, I can't find such probative materials that can persuade me to find in favour of the D. 1075 12.2 All things considered; it is my findings that: (a) The D's demeanour at the trial and his evidence are suspect. It led me to take it with abundant caution. It is my considered view that the evidence of the defendant is primarily untenable and cannot refute the allegations against him. 1080 (b) The facts at the trial convinced me that Van Thuy Hanh and Pham Thi Minh Phuong, under the Non-Exclusive Dealership Agreements, acted in the D's interest and benefit. There is S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 32 irrefutable evidence that they acted upon the instruction of the 1085 D. To hold otherwise would be against the evidence at the trial. As, as a director of P2, it is apparent that the D's action was not in the best interest or benefit of the company. (c) I find that the breaches under the Agreements, as argued, had 1090 been committed to the Ps' detriment. I find the farfetched arguments by the D unconvincing to challenge the Ps' evidence. (d) I am guided by the Federal Court in Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 1 CLJ 269; the starting 1095 point is for the Court to recognise that in an action for a breach of Contract, it is for the Court to determine who is the innocent party and who is the guilty party. In the circumstances of the case, I hold the D as the principal to Phuong liable to the Ps in this suit. 1100 12.3 Legal and Evidential Objections: (a) Pleading Objections: I find no merit in the D's argument. I agree with the Ps provided under O.18 r.7(1) RC 2012. Only material facts need to be pleaded and not evidence. That legal 1105 position is trite. The D failed to object to these issues promptly at trial and cannot now be allowed to raise this issue in his submission. (b) Hearsay Evidence: Similarly, I find this argument by the D 1110 unsustainable in the circumstances of this case. (c) Without Prejudice letter: As rightly pointed out by the Ps, I had ruled on 27.09.2022 in dismissing the preliminary S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 33 objection that these letters are to be admissible to give the 1115 court, the whole appreciation of the facts between the parties. This is no longer an issue and should not be relitigated in the D’s submission. (d) Failure to call Witnesses: I find this argument untenable. If 1120 the Ps fail or refuse to call those named witnesses, it does not prevent the D from issuing them a subpoena to attend court to offer their evidence if they are pertinent to the D’s case. (e) Sections 91 and 92 EA 1950: it is evident that the Ps does 1125 not dispute the Agreements or the terms therein. They argue that Phuong executed those Agreements as a nominee of the defendant. The D disputed this allegation in his amended pleadings. Sections 91 and 92 EA do not come into play in the circumstances. Evidence is produced to establish that 1130 allegation by the Ps and not to contradict or vary the Agreements. 12.4 Audio Recordings and the transcript in IDD1 and IDD2 are not admitted for uncertainty and incompliance with the evidentiary 1135 requirements. The recordings were clearly edited/tampered and was not a continuous recording. In Lim Peng Hock & Anor v Chuah Peng San & Anor [2021] 1 LNS 119, CA, it was ruled that the Court cannot take it lightly as to digital evidence. It is very fragile and could be easily altered. Therefore, the issue of authenticity and reliability 1140 are essential for digital evidence. The defendant had not proved the issue of non-tempering. Therefore, any reference to them is disallowed and does not carry any evidential weight in my determination. S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 34 1145 CONCLUSION [13] After appraising the evidence, all the relevant cause- papers and the submissions by the respective parties, I find that the Ps had discharged their burden on a balance of probabilities. Accordingly, I entered final judgment for the Ps as follows: 1150 13.1 P1/Apex Marble Sdn Bhd: (i) The sum of RM946,496.39, being the unremitted proceeds of the sale of the stock. (ii) The sum of RM3,303,671.00 is the retail value of the unreturned 1155 stock. (iii) Interest from the date of judgment at 5% until full realisation. (iv) Costs. 13.2 P2/Mcore Sdn Bhd: 1160 (i) The sum of RM2,249,751.08 is the unremitted proceeds of the sale of the stock. (ii) The sum of RM14,871,167.03 is the retail value of the unreturned stock. (iii) Interest from the date of judgment at 5% until full realisation. 1165 (iv) Costs. 13.3 Global costs of RM100K will be paid to the Ps within 30 days from the date hereof. Since damages were quantified, the Ps are not proceeding with prayers 2 (an inquiry into damages) and 3 (an 1170 account of profits). The Counterclaim is dismissed with costs for want of compelling evidence and is evidently without merit. Dated 19.11.2023. 1175 HAYATUL AKMAL ABDUL AZIZ JUDGE HIGH COURT OF MALAYA KUALA LUMPUR 1180 S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-22NCvC-668-10/2016 35 Counsels: Dhinesh Bhaskaran, together with Christal Wong and Jesryna Patel Messrs. Shearn Delamore & Co. 1185 Counsels for the plaintiff Chong Joo Tian Messrs. JT Chong Associates Counsels for the defendant 1190 S/N 8LtsXbEp50OiICkQ5mz9cw **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

B-01(A)-451-09/2020

PERAYU 1. ) PENGARAH TANAH DAN GALIAN SELANGOR 2. ) Pentadbir Tanah Daerah Klang RESPONDEN 1. ) PNSB ACMAR SDN.BHD 2. ) Ketua Pengarah Tanah Dan Galian Persekutuan

Compulsory acquisition under the Land Acquisition Act 1960; withdrawal from an acquisition; whether withdrawal permissible once actual physical possession of the land has been; or whether withdrawal is always possible for as long as the Form K has not been issued (even if physical possession has been taken).

19/11/2023

YA Dato' Azizul Azmi Bin AdnanKorumYA Datuk Hanipah Binti FarikullahYA Dato' Gunalan A/L MuniandyYA Dato' Azizul Azmi Bin Adnan

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=33a564b8-b64c-46e6-b3d1-e2daa2ac9cb2&Inline=true

Microsoft Word - PTG Selangor v PNSB Acmar Grounds of Judgment DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA (BIDANGKUASA RAYUAN) 1 RAYUAN SIVIL NO: B-01(A)-451-09/2020 ANTARA 1. PENGARAH TANAH DAN GALIAN SELANGOR …PERAYU-PERAYU 2. PENTADBIR TANAH DAERAH KLANG DAN 1. PNSB ACMAR SDN BHD …RESPONDEN-RESPONDEN 2. KETUA PENGARAH TANAH DAN GALIAN PERSEKUTUAN (Didengar bersama) RAYUAN SIVIL NO: B-01(A)-470-09/2020 ANTARA KETUA PENGARAH TANAH DAN GALIAN PERSEKUTUAN …PERAYU-PERAYU DAN 1. PNSB ACMAR SDN BHD …RESPONDEN-RESPONDEN 2. PENGARAH TANAH DAN GALIAN SELANGOR 3. PENTADBIR TANAH DAERAH KLANG 19/11/2023 21:20:56 B-01(A)-451-09/2020 Kand. 66 S/N uGSlM0y25kaz0eLaoqycsg **Note : Serial number will be used to verify the originality of this document via eFILING portal B-01(A)-451-09/2020 Pengarah Tanah & Galian Selangor v PNSB Acmar 2 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SEMAKAN KEHAKIMAN NO: BA-25-3-01/2019 ANTARA PNSB ACMAR SDN BHD …PEMOHON DAN 1. PENGARAH TANAH DAN GALIAN SELANGOR …RESPONDEN-RESPONDEN 2. PENTADBIR TANAH DAERAH KLANG 3. KETUA PENGARAH TANAH DAN GALIAN PERSEKUTUAN CORAM HANIPAH FARIKULLAH JCA M GUNALAN JCA AZIZUL AZMI ADNAN JCA JUDGMENT OF THE COURT INTRODUCTION 5 [2] There were two appeals before this court. They related to an application for judicial review made by the PNSB Acmar Sdn Bhd, the first respondent in both cases. At the High Court, PNSB Acmar successfully obtained an order declaring (among others) that a notice of withdrawal of a compulsory acquisition of a portion of its land was null and void. 10 [3] The appellants in both the appeals before us sought to challenge the decision of the High Court. In Appeal No. 451, the appellants were the Director S/N uGSlM0y25kaz0eLaoqycsg **Note : Serial number will be used to verify the originality of this document via eFILING portal B-01(A)-451-09/2020 Pengarah Tanah & Galian Selangor v PNSB Acmar 3 of Land and Mines for the state of Selangor and the land administrator for the district of Klang. In Appeal No. 471, the appellant was the Director General of the Department of Land and Mines of the Federal government. [4] We dismissed Appeal No. 451 but allowed Appeal No. 470. The reasons for our decision are set out here. This is the judgment of the court. 5 MATERIAL FACTS Notice of compulsory acquisition [5] PNSB Acmar owned a piece of land in Klang. On 16 February 2017, it received notice in Form D prescribed under the Land Acquisition Act 1960 that 0.8401 hectares of its land was to be compulsorily acquired for the purposes of 10 the construction of the LRT 3 project, which is intended to connect Klang to the existing light rail network in Kuala Lumpur and Petaling Jaya. The paymaster agency was Prasarana Malaysia Berhad. Enquiry and issuance of Form H [6] An enquiry was held in accordance with the provisions of the Land 15 Acquisition Act 1960 and the amount of compensation awarded to the first respondent was RM266,972,147. The relevant Form H was issued on 21 February 2018. The notice of withdrawal [7] On 3 July 2018, the Prime Minister’s department wrote to the Director 20 General of Land and Mines (the appellant in Appeal No. 470), informing him that the subject land was surplus to requirements and that the Bandar Baru Klang station would now be constructed on lands already acquired. On 7 September 2018, the district land administrator of Klang issued a notice of withdrawal from S/N uGSlM0y25kaz0eLaoqycsg **Note : Serial number will be used to verify the originality of this document via eFILING portal B-01(A)-451-09/2020 Pengarah Tanah & Galian Selangor v PNSB Acmar 4 acquisition in the prescribed form. The notice of withdrawal was subsequently published in the Selangor government gazette on 11 October 2018. [8] Section 22 of the Land Acquisition Act 1960 provides for the taking of formal possession of acquired lands by the issuance and service of a notice in Form K to the occupants and proprietor of such lands. It is not in dispute that 5 the Form K was never issued in respect of the subject land. Compensation for the withdrawal [9] An enquiry was subsequently held to ascertain the amount of compensation payable to the first respondent for the withdrawal of the compulsory acquisition. The final amount of compensation was ascertained on 10 13 February 2019 to be RM64,056,219, which included the costs of repurchase of units on the land that had been sold, the costs of cancelling financing facilities and reputational damage suffered by the first respondent. [10] This amount was paid to PNSB Acmar, and was received by it under protest. 15 At the High Court [11] PNSB Acmar challenged the withdrawal of the compulsory acquisition through its judicial review application at the High Court. PNSB Acmar sought (among others) an order of certiorari quashing the decision of the Klang land administrator to withdraw the compulsory acquisition and a declaration that the 20 withdrawal was null and void. In essence, PNSB Acmar sought to hold the authorities to their decision to compulsorily acquire the subject land, for which PNSB Acmar was to receive RM266,972,147 in compensation. By contrast, if the withdrawal was to take effect, PNSB Acmar would keep its land but would be entitled to RM64,056,219 as compensation. 25 S/N uGSlM0y25kaz0eLaoqycsg **Note : Serial number will be used to verify the originality of this document via eFILING portal B-01(A)-451-09/2020 Pengarah Tanah & Galian Selangor v PNSB Acmar 5 [12] The judicial review application was allowed by the High Court. Actual occupation of the subject land [13] The High Court made a finding of fact that the paymaster agency came into actual occupation of the subject land prior to the issuance of the Form K. The learned judge hearing the matter referred to police reports that had been 5 made by the representatives of PNSB Acmar, and dismissed the competing averments of the respondents as hearsay. [14] The first respondent’s application was supported by an affidavit affirmed by its general manager, Encik Muhammad Zali bin Md Shah. At paragraph 15 of his affidavit in support, he stated that the paymaster agency or its agents had 10 entered into occupation of the relevant portion of the subject land even before the Form H had been issued. Three police reports were exhibited (two of which were lodged prior to the issuance of the Form H), as well as photographs of the subject land. It may also be observed that two of the police reports were lodged by En Muhammad Zali himself. 15 [15] Paragraph 15 of the affidavit in support is reproduced below: 15. Saya sesungguhnya ingin menyatakan bahawa Responden-Responden secara langsung dan/atau tidak langsung melalui agen-agenya, kontraktor-kontraktornya, pemilik projek LRT3, pekerja-pekerjanya dan hamba-hambanya telah memasuki dan menduduki Tanah terjadual tersebut dan telah mengambil milikan dari Pemohon. 20 Saya ingin menyatakan bahawa beberapa laporan Polis telah dilaporkan yang bertarikh 27 November 2017, 30 January 2018 dan 25 April 2018 oleh Pemohon mengenai Responden-Responden dan/atau agen-agen dan kontraktor- kontraktornya mengambil milikan "taken possession" Tanah terjadual tersebut. Terdapat juga bukti gambar-gambar yang menunjukan bahawa Responden-25 Responden dan/atau agen-agen dan kontraktor-kontraktornya telah menduduki dan mengambil milikan Tanah terjadual tersebut. [16] An affidavit in opposition was affirmed by En Hasnan bin Hasbullah, whose title was “Penolong Pegawai Tanah lantikan Persekutuan”. In his affidavit, he S/N uGSlM0y25kaz0eLaoqycsg **Note : Serial number will be used to verify the originality of this document via eFILING portal B-01(A)-451-09/2020 Pengarah Tanah & Galian Selangor v PNSB Acmar 6 denied the averments of En Muhammad Zali, and asserted that the land administrator for Klang had not given any permission to the paymaster agency to take possession of the land, and that he had been informed that agents of the paymaster agency had only entered onto those portions of the subject land that were either road reserve or that had become state land. The specific averment 5 of En Hasnan was as follows: 18. Perenggan 15 Afidavit Sokongan Pemohon adalah dinafikan. Responden Kedua selanjutnya menyatakan bahawa Responden Kedua tidak pernah pada bila-bila masa menbenarkan agensi pemohon dan/atau agensi pembayar memasuki tanah terjadual. Tetapi Responden Kedua telah dimaklumkan bahawa agensi pemohon 10 melalui wakilnya hanya memasuki tanah dibahagian yang telah menjadi rizab jalan dan/atau yang telah menjadi tanah kerajaan. Oleh itu, Pemohon diletakkan atas bebanan bagi membuktikan bahawa Responden Kedua telah membenarkan agensi pemohon dan/atau agensi pembayar memasuki tanah Pemohon. [17] In a hearing on affidavits, if an assertion of fact is credibly disputed, the 15 court must proceed to hear the case without taking into account the disputed facts: Tay Bok Choon v Tahansan [1987] 1 MLJ 433 (Privy Council). But an assertion should not merely be taken at face value. A court would still be entitled to reject an assertion of fact if it is inconsistent with the deponent’s own averments (which is to say that it is self-contradictory), if it is vague or equivocal, 20 if it is inconsistent with undisputed contemporaneous documentary evidence or if it is inherently implausible in and of itself: see the decision of the Judicial Committee of the Privy Council on appeal from Malaysia in Eng Mee Yong v V Lethumanan [1979] 2 MLJ 212. Where, however, a credible assertion of fact goes unchallenged, then the court must accept that assertion as being 25 representative of the truth: Ng Hee Thoong v Public Bank Berhad [1995] 1 MLJ 281. Under order 41 rule 5(1) of the Rules of Court 2012, subject to certain exceptions (none of which apply in the present case), an affidavit may only contain such facts that the deponent is able of his own knowledge to prove. The equipollent provision in the Singapore Rules of the Supreme Court has been held 30 S/N uGSlM0y25kaz0eLaoqycsg **Note : Serial number will be used to verify the originality of this document via eFILING portal B-01(A)-451-09/2020 Pengarah Tanah & Galian Selangor v PNSB Acmar 7 in Wong Hong Toy v PP [1988] 2 MLJ 553 as enshrining the evidentiary rule against the admission of hearsay evidence in hearings conducted on the basis of affidavit evidence. [18] We were therefore of the view that the averment by En Hasnan to the effect that the agents of Prasarana Malaysia had only entered onto road reserve 5 or government lands was inadmissible as hearsay and could not constitute a credible denial of the averments made by En Mohammad Zali on behalf of PNSB Acmar. En Hasnan, by his own averment, did not have personal knowledge on whether or not the paymaster agency or its employees or agents had entered onto the subject land, and there was no affidavit affirmed by the representatives 10 or agent of Prasana Malaysia. By contrast, En Mohammad Zali’s averments were bolstered by the contemporaneous documents in the form of the police reports and photographs. For these reasons, we found that the first respondent has established that the paymaster agency or its employees and agents had entered into occupation of the subject land even before the issuance of the Form H on 15 21 February 2018. ISSUES [19] The key issue before the court was whether it was open to the State Authority to withdraw from the compulsory acquisition in the circumstances of the case. Under section 35 of the Land Acquisition Act 1960, it may do so where 20 possession of the land has not been taken. [20] The High Court held that possession in this case had taken place upon the issuance and service of Form H on 21 February 2018 and found support for this conclusion in three cases: Dato’ Fong Chow v Pentadbir Tanah Daerah Jerantut [1988] 3 MLJ 325, Hong Lee Trading & Construction v Taut Ying Realty [1991] 1 25 MLJ 250 and Fun Fatt v Kerajaan Malaysia [2020] 10 MLJ 1. S/N uGSlM0y25kaz0eLaoqycsg **Note : Serial number will be used to verify the originality of this document via eFILING portal B-01(A)-451-09/2020 Pengarah Tanah & Galian Selangor v PNSB Acmar 8 [21] A number of different grounds of appeal were raised by the appellants, but we were of the view that the grounds of appeal may be distilled into the following issues: (a) whether the time at which possession of the land is regarded for the purposes of section 35 as having been taken is: 5 (i) the time of the issuance of the Form H; (ii) the time of issuance of the Form K; or (iii) when actual possession of the land is taken. (b) whether the applicable interest rate for the calculation of late payment charges ought to be 8% per annum as awarded by the High 10 Court, or 5% per annum as specified by the amendment to section 32(1) of the Land Acquisition Act 1960 which took effect on 1 December 2017; (c) whether the Director General of the Federal Department of Land and Mines (the appellant in Appeal 470) ought to be jointly liable with the 15 land administrator for Klang and the state Director of the Department of Land and Mines to pay the compensation awarded and late payment charges imposed. It was advanced for the appellant in Appeal No 470 that the obligation to make the payment of compensation lay with the land administrator appointed under state land law, and not 20 the Federal Department of Land and Mines. [22] The appellants have also mounted a challenge on the finding of fact by the High Court that actual possession of the subject land had been taken by the S/N uGSlM0y25kaz0eLaoqycsg **Note : Serial number will be used to verify the originality of this document via eFILING portal B-01(A)-451-09/2020 Pengarah Tanah & Galian Selangor v PNSB Acmar 9 paymaster agency or its agents. We have already addressed this ground of appeal at paragraphs [13] to [18], ante. ANALYSIS AND DECISION Summary [23] Our findings in this case are summarised as follows: 5 (a) Section 18 of the Land Acquisition Act 1960 does not seek to prescribe the time at which possession takes place, but merely specifies that possession may be taken by the State upon the issuance of the Form H or at any time thereafter. It is an empowering or enabling provision, which grants the right to the Land Administrator to take possession of 10 the land after issuance and service of Form H, but is not a deeming provision specifying the legal presumption of possession; (b) Section 22 provides for a presumption of law that, once Form K has been issued by the land administrator, it is deemed to have taken formal possession of the subject land; 15 (c) However, possession can also be taken by being in actual physical possession of the land; (d) On a proper construction of section 35 of the Land Acquisition Act 1960, once the earlier of the following occurs: (i) actual physical possession of the land is taken; or 20 (ii) the Form K is issued, the compulsory acquisition can no longer be withdrawn; S/N uGSlM0y25kaz0eLaoqycsg **Note : Serial number will be used to verify the originality of this document via eFILING portal B-01(A)-451-09/2020 Pengarah Tanah & Galian Selangor v PNSB Acmar 10 (e) On the facts of the present case, the paymaster agency had entered into occupation of the subject lands even before the Form H had been issued. This amounted to trespass, for as long as the Form H had not yet been issued. Once the Form H was issued and the agency continued in occupation of the subject land, then actual physical 5 possession will have been acquired at that point by or on behalf of the State. (f) As regards the payment of late payment charges, because the applicable interest rate was 8% per annum at the time of the issuance of the Form D declaring that the first respondent’s land was required 10 for the LRT3 project, the court below was entirely correct to award interest at the rate of 8% per annum; and (g) The obligation to pay compensation lies with the land administrator of the state, and not with the Director General of the Department of Land and Mines. For this reason, the appeal in Appeal 470 was allowed. 15 [24] The analyses underlying the findings in the preceding paragraphs are set out below. The meaning of possession [25] Section 35 of the Land Acquisition Act 1960 governs the manner in which a withdrawal from an acquisition may be undertaken. Subsection (1) sets out the 20 main operative provision. It reads as follows: Section 35. Withdrawal from acquisition. (1) The State Authority shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. S/N uGSlM0y25kaz0eLaoqycsg **Note : Serial number will be used to verify the originality of this document via eFILING portal B-01(A)-451-09/2020 Pengarah Tanah & Galian Selangor v PNSB Acmar 11 [26] By the terms of section 35(1), withdrawal may only be possible where possession of the land in question has not yet been taken. The key and determinative question is the meaning of “possession” as used in section 35(1). [27] Section 18 of the Land Acquisition Act 1960 permits the land administrator to take possession of the land acquired upon the issuance and service of Form 5 H. Section 18 provides as follows: Section 18. General power to take possession. The Land Administrator may take possession— (a) of any land in respect of which an award has been made under section 14, such possession being taken at the time of the service upon the occupier of such 10 land of a notice in Form H, or at any time thereafter; (b) of any land specified in a Certificate of Urgency issued under section 19, whether or not any award has been made in respect of such land: Provided that the Land Administrator shall not take possession of any part of any land under paragraph (b) which is occupied by any building, except in accordance 15 with section 20. [28] In our considered view, section 18 of the Land Acquisition Act 1960 does not seek to prescribe the time at which possession takes place, but merely specifies that possession may be taken by the State upon the issuance of the Form H or at any time thereafter. It is an empowering or enabling provision, 20 which grants the right to the Land Administrator to take possession of the land after issuance and service of Form H. From a plain reading of section 18, it is clear that it anticipates a further act being carried out by the land administrator in order for possession to be taken. The words “at any time thereafter” at the end of paragraph (a) further supports the construction that section 18 is not a 25 deeming provision specifying the legal presumption of possession. If section 18 was intended to create a legal presumption of possession, then the legislature would have fixed a point in time for possession to take effect, rather than using S/N uGSlM0y25kaz0eLaoqycsg **Note : Serial number will be used to verify the originality of this document via eFILING portal B-01(A)-451-09/2020 Pengarah Tanah & Galian Selangor v PNSB Acmar 12 the form of words in paragraph (a). Quite clearly, in our view, something more must be done by the land administrator before it is deemed to have taken possession of the land in question. [29] That something more is that which is specified in section 22. [30] Section 22 provides for a presumption of law that, once Form K has been 5 issued by the land administrator, it is deemed to have taken formal possession of the subject land. [31] Section 22 provides as follows: Section 22. Formal possession. (1) The Land Administrator shall take formal possession of any scheduled land by 10 serving upon the occupier thereof or, if he cannot be found, by posting thereon, a notice in Form K. (2) A copy of the list of lands gazetted under subsection 8(1), or any relevant part thereof, shall be included as a schedule to the notice in Form K. (3) Upon taking possession of land under subsection (1) the Land Administrator 15 shall also serve a copy of the notice in Form K upon— (a) the registered proprietor of the land, where he is not the occupier; (b) the proper registering authority, where he is not the Land Administrator himself; and (c) the statutory body, person or corporation referred to in paragraph 23(a), and 20 the management corporation in respect of a subdivided building or land. [32] In our considered view, possession can also be taken by being in actual physical possession of the land. On a proper construction of section 35 of the Land Acquisition Act 1960, once actual possession of the land is taken, the compulsory acquisition can no longer be withdrawn. This construction is 25 supported by the fact that section 35 refers to “possession” and not “formal possession”. S/N uGSlM0y25kaz0eLaoqycsg **Note : Serial number will be used to verify the originality of this document via eFILING portal B-01(A)-451-09/2020 Pengarah Tanah & Galian Selangor v PNSB Acmar 13 [33] It is a well-established principle of statutory construction that the provisions of written law must be read in a cohesive manner and the courts are bound to give meaning to the words used in the statute and cannot treat such words as mere tautology or surplusage. In the case of Foo Loke Ying v. Television Broadcasts Limited [1985] 2 MLJ 35, the Supreme Court had held as follows: 5 On the presumption that Parliament does nothing in vain, the court must endeavour to give significance to every word of an enactment, and it is presumed that if a word or phrase appears in a statute, it was put there for a purpose and must not be disregarded. In Quebec Railway, Light, Heat and Power Co Ltd v Vandry [1920] AC 662, Lord Sumner in delivering the judgment of the Judicial Committee said (at page 10 676): Secondly, there is no reason why the usual rule should not apply to this as to other statutes — namely, that effect must be given, if possible, to all the words used for the legislature is deemed not to waste its words or to say anything in vain. 15 [34] The word “possession” in section 35 must therefore carry a meaning different from “formal possession”. The logical conclusion must be that “possession” encompasses something wider than “formal possession”; the latter term is merely a subset of “possession”, and possession can be obtained by being in actual occupation of the land in question. 20 [35] This construction commends itself to logic and common sense, as it would reduce the likelihood of an intentional delay in the issuance of the Form K. [36] On the facts of the present case, we are satisfied that the applicant (PNSB Acmar) has established that the paymaster agency had entered into occupation of the subject lands even before the Form H had been issued. This amounted to 25 trespass, for as long as the Form H had not yet been issued. This is because possession can only be taken at the earliest, upon the issuance of the Form H. Once the Form H is issued and the agency continues in occupation of the subject S/N uGSlM0y25kaz0eLaoqycsg **Note : Serial number will be used to verify the originality of this document via eFILING portal B-01(A)-451-09/2020 Pengarah Tanah & Galian Selangor v PNSB Acmar 14 land, then actual possession will have been acquired at that point by or on behalf of the State. [37] We are thus in agreement with the conclusion of the High Court, albeit for different reasons. On the facts of the present case, possession has been taken at the time of the issuance of the Form H, but only because the paymaster 5 agency was already in occupation of the subject land at that time. [38] The applicable principles may be summed up as follows: The land administrator may take possession of the land once the Form H has been issued. Exceptionally, the land administrator may, in urgent cases, take possession even before an award has been made, provided that the procedures set out in 10 sections 19 to 21 are adhered to. Once the Form K is issued and served, the land administrator is deemed to have taken possession of the subject land. If the land administrator or the paymaster agency or its employees or agents occupy and take actual possession of the land, possession will also have been taken for the purposes of section 35. In either case, withdrawal from the acquisition will no 15 longer be possible. [39] In the following paragraphs, we address specific points raised in the submissions of counsel to the extent that they have not been answered in the preceding paragraphs. [40] Learned counsel for the appellants in Appeal No. 451 cited the case of 20 Ishmael Lim Abdullah v Pesuruhjaya Tanah Persekutuan [2015] 2 MLJ 126 in support of the proposition that possession is only regarded to have been taken with the issuance of the Form K. In that case, a piece of land in the district of Gombak had been compulsorily acquired for the construction of a military college. Compensation had been paid to the proprietor at the time, and 25 S/N uGSlM0y25kaz0eLaoqycsg **Note : Serial number will be used to verify the originality of this document via eFILING portal B-01(A)-451-09/2020 Pengarah Tanah & Galian Selangor v PNSB Acmar 15 following the issuance of the Form K, the land was realienated to the Federal Lands Commissioner. Despite this, the registered proprietor was able to transfer the land to the appellant’s father, who then transferred the land to the appellant. [41] The Court of Appeal held that the acquisition of the land had been 5 completed by the issuance of the Form K, and as a consequence, the subsequent transfer by the previous registered proprietor to the appellant’s father was of no consequence or effect. This case did not deal with a withdrawal from an acquisition, but the Court of Appeal referred to section 35 in support of the conclusion that the acquisition was completed at the point of the issuance of the 10 Form K. Mah Weng Kwai JCA stated in that case: [46] Essentially, what s 35 of the Act means is that once possession of the land has been taken the acquisition process is complete and it will be too late for the state authority to withdraw from the acquisition. The acquisition process is deemed ended and final and the state authority cannot resile from its position. Likewise in this case, 15 once Borang K had been issued giving notice that possession has been formally taken of the land under s 22 of the Act it signalled the completion of the acquisition process and that the ownership of the land by the proprietor at the material time had terminated. The completion of the acquisition process did not depend on the endorsement of a memorial on the title. 20 [42] We are of the view that the conclusion of the Court of Appeal in Ishmael Lim Abdullah v Pesuruhjaya Tanah Persekutuan is not inconsistent with our finding in the present case. It will be observed that Ishmael Lim Abdullah v Pesuruhjaya Tanah Persekutuan was not a case dealing with actual physical occupation or possession of the land. Furthermore, the Court of Appeal in that 25 case did not rule that the issuance of Form K was the only way in which possession could be taken for the purposes of a compulsory acquisition. [43] Learned counsel for the appellants in Appeal No 451 further relied on the Federal Court case of Amitabha Guha v Pentadbir Tanah Hulu Langat [2021] 4 S/N uGSlM0y25kaz0eLaoqycsg **Note : Serial number will be used to verify the originality of this document via eFILING portal B-01(A)-451-09/2020 Pengarah Tanah & Galian Selangor v PNSB Acmar 16 MLJ 1 in support for his contention that possession for the purposes of section 35 means formal possession consequent upon the issuance of the Form K. That case involved the compulsory acquisition of land belonging to the appellant for the construction of the SILK expressway in Kajang. We were of the view that this case did not assist the appellants, for the following reasons: 5 (a) first, the finding of the Federal Court that possession took effect from the issuance of Form K was in the context of the calculation of late payment charges on the excess sum awarded by the court pursuant to section 48 of the Land Acquisition Act 1960, and not in the context of a withdrawal under section 35; 10 (b) second, the finding of the Federal Court that interest ran for the purposes of the calculation of late payment charges for the excess sum from the date of the issuance of the Form K turned upon the express words used in section 48, which referred to “the date on which the Land Administrator took possession of the land”. The Federal Court 15 explained in this context: [Section] 48 clearly stipulates that the computation of the late payment charges runs from the date on which the LA took possession of the land. Notwithstanding the fact that SILK took possession of the subject lands much earlier, we are of the view that the words of s 48 are clear and unequivocal; as 20 such, taken in its natural and ordinary meaning, it means what it says — that the computation starts from the date the LA took possession of the land. It can import of no other interpretation. By contrast, there is no such reference to the Land Administrator taking possession in section 35; 25 (c) thirdly and perhaps most significantly, the Federal Court found that, in the context of late payment charges payable on the compensation S/N uGSlM0y25kaz0eLaoqycsg **Note : Serial number will be used to verify the originality of this document via eFILING portal B-01(A)-451-09/2020 Pengarah Tanah & Galian Selangor v PNSB Acmar 17 awarded by the land administrator under section 32 of the Land Acquisition Act 1960, the late payment charges would commence on the date on which physical possession of the subject land had been taken by the paymaster agency. The reason was that the definition of “due date” in section 32(1C) made no reference to the land 5 administrator taking possession. The Federal Court explained: We observe that the meaning ascribed to the words ‘due date’ are explicitly defined for s 32 only. It envisages two alternative situations — (a) the date of taking possession; and (b) a date three months after the service of the Land Administrator’s award in Form H. We do not think that it can be interpreted to 10 mean that the ‘due date’ refers to the date of formal possession of the land after issuance of the notice in Form K as contended by the respondent; we say this because there is no stipulation to say that the taking of possession must be by the Land Administrator. Therefore, on the facts and on the law, such an interpretation cannot stand against the clear wordings of sub-s (1C). As such, 15 we are in agreement with the appellants that for the purposes of computation of late payment charges under s 32, the phrase ‘taking possession of the land’ in sub-s (1C) means taking physical possession of the land by SILK. Accordingly, far from supporting the contentions of the appellant, Amitabha Guha fortifies our conclusion that section 35 of the Land 20 Acquisition Act 1960—which like section 32 does not contain a reference to the land administrator taking possession—prevents a withdrawal once either formal or physical possession has been taken. [44] Learned counsel for the appellant also referred to the proceedings in parliament as recorded by Hansard, specifically to the speech of the Minister of 25 Natural Resources and Environment during the debate to approve the Land Acquisition (Amendment) Act 2016. The minister said, in relation to the amendment to section 35: Seksyen 35 akta ini dicadang dipinda bagi memperkemaskan prosedur berhubung penarikan balik pengambilan tanah sekiranya penarikan balik hendak dibuat sebelum 30 pemilikan formal dilaksanakan. S/N uGSlM0y25kaz0eLaoqycsg **Note : Serial number will be used to verify the originality of this document via eFILING portal B-01(A)-451-09/2020 Pengarah Tanah & Galian Selangor v PNSB Acmar 18 [45] Counsel for the appellants argued that the proceedings of Hansard thus showed that parliament had intended only for formal possession to operate as a bar to withdrawal. [46] In our judgment, the proceedings of Hansard cannot override the express words of the statute. Had parliament intended for withdrawal to be prohibited 5 only in the circumstances where formal possession has been taken by the issuance of the Form K, then it would have said so. [47] In the following paragraphs, we address the arguments advanced on behalf of the first respondent in support of the proposition that possession is taken when the Form H is issued. As explained earlier, in our judgment, the 10 issuance of Form H does not itself constitute the taking of possession of the acquired land, but merely triggers the right of the land administrator to take possession. Both the first respondent and the court below referred to three cases on this point. We examine these in turn. [48] The High Court case of Dato’ Fong Chow v Pentadbir Tanah Daerah 15 Jerantut [1988] 3 MLJ 325 is not authority for the proposition that possession is deemed to have been taken upon the issuance of the Form H. In that case, the plaintiff sought an order of court (among others) to compel the land administrator to pay the compensation sum. The court granted the order but ordered for interest to run only from the date of judgement. The court found 20 that possession had not been taken, despite the fact that the Form H had been issued more than four years prior to the suit. In any event, Dato’ Fong Chow has been overruled by the Court of Appeal in Ismail Bakar v Director of Land and Mines Kedah [2011] 5 MLJ 197, and hence reliance ought only to be placed on the former case with the utmost care. 25 S/N uGSlM0y25kaz0eLaoqycsg **Note : Serial number will be used to verify the originality of this document via eFILING portal B-01(A)-451-09/2020 Pengarah Tanah & Galian Selangor v PNSB Acmar 19 [49] In the case of Hong Lee Trading & Construction v Taut Ying Realty [1991] 1 MLJ 250, the issue was when an acquisition is deemed to have taken place, which affected the apportionment of compensation between the lessee and proprietor of the land in question. It may thus be observed that this case did not involve the land administrator at all. The court held that the land in question was 5 acquired when the memorial was entered onto the register document of title pursuant to section 23 of the Land Acquisition Act 1960 (which can only take place following the issuance of the Form K). It is clear that this case was concerned with the proper construction of the lease agreement entered between the parties, and not when an acquisition may be withdrawn under 10 section 35. [50] The final case relied upon by the first respondent was Fun Fatt v Kerajaan Malaysia [2020] 10 MLJ 1. Like the present case, the applicant in that case sought (among others) an order of certiorari to quash the decision of the government to withdraw from a compulsory acquisition. In that case, the 15 government began the acquisition process over land belonging to an estate of which the applicant was administrator. The land was to be acquired for the purposes of the construction of the Setiawangsa-Pantai Expressway (SPE). The Form H was issued on 9 October 2017. The evidence showed that actual physical possession of the land had been taken by the Datuk Bandar Kuala Lumpur and 20 the contractor appointed to undertake construction of the SPE sometime within a period one year after the issuance of the Form H. The Form K was never issued and the government purported to exercise the right to withdraw from the acquisition. S/N uGSlM0y25kaz0eLaoqycsg **Note : Serial number will be used to verify the originality of this document via eFILING portal B-01(A)-451-09/2020 Pengarah Tanah & Galian Selangor v PNSB Acmar 20 [51] The High Court allowed the application for judicial review and quashed the decision of the government to withdraw from the acquisition, holding as follows: [17] Based on the authorities above, the facts showed that a notice of the award in Form H dated 9 October 2017 pursuant to s16 of the Act was served on the applicant 5 on the same day. By plain reading of s18(a) of the Act, the second respondent had taken possession of the said land upon service of Form H. [52] We were unable to agree with this particular conclusion, because section 18(a) of the Land Acquisition Act 1960 does not, upon its proper construction, provide that possession is to be regarded as having been taken with the issuance 10 of the Form H. As explained, the issuance of Form H merely operates as a trigger for the right of the land administrator to take occupation or possession of the land. Nonetheless, in that case, because actual physical possession had in fact been taken sometime prior to 10 October 2018 (see paragraph 18 of the judgment in that case), it follows that the court ultimately came to the correct 15 decision that withdrawal was no longer possible. The government could not rely on its own failure to issue the Form K to justify withdrawing from the acquisition. The applicable rate for late payment charges [53] The High Court had allowed interest on the late payment charges at a rate of 8% per annum. The appellants argued that the applicable rate should have 20 been 5% per annum. [54] The applicable interest rate for late payment charges under section 32 of the Land Acquisition Act 1960 had been amended from 8% per annum to 5% per annum by the Land Acquisition (Amendment) Act 2016. This Amendment Act came into force on 1 December 2017. The Form D declaring that the first 25 respondent’s land was required for the LRT3 project in this case had been issued and published in the Selangor government gazette on 16 February 2017. It may S/N uGSlM0y25kaz0eLaoqycsg **Note : Serial number will be used to verify the originality of this document via eFILING portal B-01(A)-451-09/2020 Pengarah Tanah & Galian Selangor v PNSB Acmar 21 be observed that the amendments to section 32 had already come into force by the time the High Court pronounced the order in favour of the first respondent. [55] The starting point in the analysis of this issue must start with the Amendment Act itself, which contains a saving and transitional provision. This provision reads as follows: 5 43. All proceedings, actions or other matters required to be done under section 3F and 28, subsections 37(2) and (3) of the principal Act which are still pending or if already in progress, immediately before the coming into operation of this Act, shall be continued or concluded as if the principal Act had not been amended by this Act. [56] The present appeal was not one that arose from an application under 10 section 37, and thus would have been not be expressly saved by the transitional provision in section 43 of the Land Acquisition (Amendment) Act 2016. Be that as it may, we are of the view that the applicable interest rate should still be that which prevailed prior to the publication of the acquisition in the Selangor government gazette. The reason is that, based on the proper construction of the 15 Amendment Act, it cannot be construed to have retrospective effect to take away a substantive right of the first respondent. This precise point was considered by the Federal Court in Amitabha Guha v Pentadbir Tanah Hulu Langat [2021] 4 MLJ 1. That case involved an application under section 37(1) of the Land Acquisition Act 1960, which had been made prior to the coming into 20 force of the amendments to the principal Act, and which the Court of Appeal held was not subject to the saving and transitional provision in section 43 of the Amendment Act. The Federal Court overturned the decision of the Court of Appeal, holding that the applicable rate was 8% per annum and not 5%, because of the principle that the courts should favour a construction that does not give 25 retrospective effect to provisions of law that remove substantive rights. The Federal Court stated as follows: S/N uGSlM0y25kaz0eLaoqycsg **Note : Serial number will be used to verify the originality of this document via eFILING portal B-01(A)-451-09/2020 Pengarah Tanah & Galian Selangor v PNSB Acmar 22 The right to late payment charges is in the nature of a substantive right, particularly so in the case of late payment charges under s 32. As a general rule, statutory amendments that affect substantive rights do not operate retrospectively. First, the 2016 Amending Act did not expressly exclude the application of s 30(1)(b) of the Interpretation Acts which provides that the repeal of a written law in whole or in part 5 shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed law. The Privy Council also expressed the view that ‘[a]part from the Interpretation Statutes, there is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language 10 used’ (see Yew Bon Tew at p 2). That a retrospective operation should not be given to a statute to impair an existing right and that one should avoid a construction that inflicts a detriment was emphasized by the then Supreme Court in National Land Finance Co-Operative Society Limited, at p 106 (see also Society of La Salle Brothers at paras [43]–[45]; Tenaga Nasional Bhd v Kamarstone, at paras [6]–[7]). 15 [68] It must be borne in mind that the LAA 1960 is a special enactment dealing with the fundamental right to property under art 13 of the Federal Constitution. As a general rule, such statutes should be construed strictly and any doubt should be resolved in favour of the landowner so as to give meaning to the constitutional protection of a person’s right to his property (Ee Chong Pang at para [21]; Sistem 20 Lingkaran Lebuhraya Kajang Sdn Bhd at para [4]). [57] We are of the view that the same reasoning would apply to facts of the present case. Accordingly, because the applicable interest rate was 8% per annum at the time the acquisition of the land was published in the government gazette on 16 February 2017 (which was prior to the coming into force of the 25 amendments to section 32), the court below had not committed any appealable error in awarding interest on late payment charges at the rate of 8% per annum. [58] For the reasons explained above, the entirety of the appeal in Appeal No 451 by the Klang district land administrator and by the Director of the Department of Land and Mines was dismissed with costs of RM10,000, such 30 costs to be subject to an allocatur. The liability of the Director General [59] The final point of appeal relates to the liability of the Federal government. The High Court had granted reliefs against all the respondents in the action, S/N uGSlM0y25kaz0eLaoqycsg **Note : Serial number will be used to verify the originality of this document via eFILING portal B-01(A)-451-09/2020 Pengarah Tanah & Galian Selangor v PNSB Acmar 23 which included the Director General of the Federal Department of Land and Mines. [60] Under section 29 of the Land Acquisition Act 1960, the obligation to pay compensation lies with the land administrator. The expression “land administrator” is defined under the Act in the following terms: 5 “Land Administrator” means any Land Administrator or other officer appointed under the State land law, and includes an Assistant Land Administrator; [61] Accordingly, the Director General of the Federal Department of Land and Mines bore no liability for the payment of compensation under section 29. For this reason, we were of the view that the appeal in Appeal 470 must be allowed. 10 We allowed costs of RM5,000. 19 November 2023 Azizul Azmi Adnan 15 Judge of the Court of Appeal For PNSB Acmar Sdn Bhd: Mr Goik Kenzu, Dato’ Nik Suhaimi, Mr Goik Kenwayne & Ms Christie Ling—Messrs Goik, Ramesh & Loo For the Director of Land and Mines, Selangor and the Klang land administrator: En Khairul Nizam Bin Abu Bakar & Ms Husna Binti Abdul Halim—Assistant State Legal Advisors S/N uGSlM0y25kaz0eLaoqycsg **Note : Serial number will be used to verify the originality of this document via eFILING portal B-01(A)-451-09/2020 Pengarah Tanah & Galian Selangor v PNSB Acmar 24 For the Director General of Land and Mines of the Federal government Mr Noerazlim Saidil & Ms Natrah Mazman—Attorney General’s Chambers S/N uGSlM0y25kaz0eLaoqycsg **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

PB-41S-5-04/2022

PERAYU CHAI SOON PENG RESPONDEN Pendakwa Raya [Jabatan Kastam Diraja Malaysia (KDRM)]

Rayuan atas sabitan dan hukuman – Pertuduhan di bawah seksyen 135(1)(e) Akta Kastam 1967 yang boleh dihukum di bawah seksyen 135(1)(v)(aa) Akta yang sama – Elemen-elemen kesalahan - Sama ada pihak pendakwaan telah berjaya membuktikan satu kes prima facie di akhir kes pendakwaan – Sama ada Sabitan ke atas Tertuduh adalah selamat.

18/11/2023

YA Puan Fathiyah Binti Idris

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=c99b76d7-f721-4b5a-b275-9271510ac41a&Inline=true

Page 1 of 23 DALAM MAHKAMAH TINGGI MALAYA DI BUTTERWORTH DALAM NEGERI PULAU PINANG, MALAYSIA RAYUAN JENAYAH: PB-41S-5-04/2022 ANTARA CHAI SOON PENG … PERAYU DAN PENDAKWA RAYA … RESPONDEN ALASAN PENGHAKIMAN Pendahuluan [1] Di dalam rayuan ini pihak-pihak akan dirujuk sebagaimana mereka di Mahkamah Majistret iaitu Pendakwa Raya (PR) dan Tertuduh (OKT). Manakala Puan Majistret akan dirujuk sebagai Hakim Bicara. [2] OKT telah dituduh di Mahkamah Majistret Jawi, Pulau Pinang atas satu kesalahan di bawah seksyen 135(1)(e) Akta Kastam 1967 dan boleh dihukum di bawah seksyen 135(1)(v)(aa) Akta yang sama. OKT mengaku tidak bersalah dan perbicaraan penuh telah dijalankan di hadapan Hakim Bicara. Seramai 15 orang saksi pendakwaan dan seorang saksi pembelaan telah memberi keterangan. 18/11/2023 06:17:52 PB-41S-5-04/2022 Kand. 43 S/N 13abySH3WkuydZJxUQrEGg **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 2 of 23 [3] Di akhir perbicaraan, Hakim Bicara memutuskan bahawa OKT bersalah dan disabitkan kesalahannya sebagaimana pertuduhan. Selanjutnya Hakim Bicara telah menjatuhi ke atas OKT hukuman penjara 36 bulan dari tarikh sabitan. [4] Apabila prosiding di hadapan Hakim Bicara telah selesai pada hari tersebut, kes ini telah dipanggil semula pada pukul 12.30 tengah hari tanpa kehadiran peguam OKT, di mana Hakim Bicara telah memerintahkan OKT untuk membayar cukai sebanyak RM102,090.24 dan sekiranya gagal bayar, 12 bulan penjara. [5] Hakim bicara juga menolak permohonan pihak pembelaan untuk penggantungan pelaksanaan hukuman, memandangkan tiada faktor istimewa (“special circumstances”) yang ditunjukkan dalam kes ini. Maka, OKT telah menjalani hukuman penjara bermula pada 31 Mac 2022. OKT yang terkilan dengan keputusan Hakim Bicara telah memfailkan notis rayuan atas sabitan dan hukuman. [6] Pada 12.05.2022, peguam bela OKT telah memfailkan Permohonan Jenayah (No. Kes: PB-44-16-05/2022) di Mahkamah ini dan memohon untuk mendapatkan penggantungan pelaksanaan hukuman penjara. Pihak PR tiada bantahan terhadap permohonan itu, maka pada 23.05.2022, Mahkamah ini telah membenarkan permohonan tersebut. [7] Di akhir pendengaran rayuan, Mahkamah ini telah membenarkan rayuan dan mengakaskan sabitan dan hukuman yang dijatuhkan ke atas OKT. Justeru OKT dilepaskan dan dibebaskan daripada pertuduhan. S/N 13abySH3WkuydZJxUQrEGg **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 3 of 23 [8] Selanjutnya Mahkamah ini mendapati keterangan yang dikemukakan adalah jelas menunjukkan bahawa barang kes yang dirampas adalah barang larangan import seperti yang dinyatakan dalam Perintah Kastam (Larangan Mengenai Import) 2017. [9] Maka selaras dengan peruntukan di bawah s. 127 Akta Kastam 1967, Mahkamah ini memerintahkan kesemua barang kes tersebut dilucut hak dan diserahkan kepada Jabatan Kastam Diraja Malaysia untuk dilupuskan selepas tamat tempoh rayuan. [10] Pihak PR yang terkilan dengan keputusan Mahkamah ini, telah memfailkan Notis Rayuan pada 29.9.2023. Di sini dikemukakan alasan Mahkamah ini membenarkan rayuan OKT. Pertuduhan [11] Pertuduhan yang dikenakan terhadap OKT adalah seperti berikut: - “Bahawa kamu Chai Soon Peng (No. Kad Pengenalan: 861026- 10-5025) pada 25 Februari 2019 jam 17.45hrs di alamat Hentian Sebelah Sungai Bakap, Lebuhraya Utara Selatan (PLUS) Arah Utara, di dalam Negeri Pulau Pinang, dengan disedarinya terlibat dalam mengangkut barang-barang larangan iaitu: 16800 tin @ 5,376 liter minuman keras jenama Royal Stout (MDNP), menggunakan sebuah lori bernombor pendaftaran BPJ 1278 yang mengandungi intoxicating liquor yang dianggarkan bernilai RM43,061.76. Barang-barang tersebut adalah barang yang dilarang pengimportan di bawah Butiran 3, Bahagian II, Jadual Ketiga Perintah Kastam (Larangan Mengenai Import) 2017 [P.U.(A) 490], dan dengan itu kamu telah melakukan suatu S/N 13abySH3WkuydZJxUQrEGg **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 4 of 23 kesalahan di bawah seksyen 135(1)(e) Akta Kastam 1967 yang boleh dihukum di bawah seksyen 135 (1)(v)(aa) Akta yang sama.” Fakta Kes pendakwaan Secara ringkasnya kes pendakwaan seperti berikut: - [12] Pada 25.02.2019, SP7 dan pasukannya telah bertindak atas satu maklumat berkaitan aktiviti mengangkut barang larangan kastam oleh sebuah lori dengan nombor pendaftaran BPJ 1278 (lori tersebut) di sekitar kawasan Rehat dan Rawat (R&R) Alor Pongsu. Pada jam lebih kurang 5.30 petang, SP7 dan pasukannya telah berjaya mengesan dan menahan lori tersebut serta mengarahkan lori tersebut berhenti di kawasan R&R Hentian Sebelah Sungai Bakap, Lebuhraya Utara Selatan (PLUS) Arah Utara untuk pemeriksaan lanjut. [13] SP7 telah mengarahkan pemandu lori (OKT) untuk membuka kunci di bahagian belakang lori. OKT telah mematuhi arahan SP7 dan membuka kunci tersebut. SP7 serta pasukannya mendapati di dalam lori tersebut terdapat minuman keras beer yang tidak mempunyai label cukai kastam. [14] Selanjutnya SP7 telah mengeluarkan notis sitaan. SP5 pula telah melukis pelan lakar tempat kejadian dan SP6 telah merakam gambar barang kes dan gambar tempat kejadian. Setelah selesai mengambil tindakan di tempat kejadian, kemudiannya OKT dan barang kes telah dibawa ke pejabat SP7. [15] Selanjutnya SP7 telah mengambil tindakan iaitu membuat laporan polis Sg. Bakap 000581/19, menyediakan borang serah menyerah S/N 13abySH3WkuydZJxUQrEGg **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 5 of 23 barang kes, menyerahkan OKT dan barang kes (16800 tin minuman keras, sebuah lori dan satu set anak kunci) bersama semua dokumentasi kepada Pegawai Penyiasat, Mohammad Izat Amer bin Ghazali (SP15). Kesemua barang rampasan telah disimpan selamat di dalam stor penyimpanan barang kes. [16] Kemudiannya SP15 telah menghantar tiga (3) tin minuman keras Royal Stout tersebut ke Jabatan Kimia untuk dianalisis. Hasil analisis yang dijalankan mendapati ketiga-tiga tin tersebut mengandungi cecair yang merupakan “intoxicating liquor”. SP15 juga telah menghantar satu (1) tin minuman tersebut untuk penilaian. Penilaian telah dijalankan oleh Pegawai Penilai iaitu Ahmad Syafiq bin Hamdan (SP11). Setelah siasatan selesai dijalankan maka OKT dituduh dengan pertuduhan seperti di atas. Dapatan Hakim Bicara [17] Mahkamah ini mendapati bahawa Hakim Bicara telah mengambil perhatian terhadap tiga elemen pertuduhan yang harus dibuktikan oleh pihak PR melampaui keraguan yang munasabah, iaitu: - (a) Barang-barang tersebut adalah barangan larangan di bawah Perintah Kastam (Larangan Mengenai Import) 2017; (b) OKT dengan kesedaran dan pengetahuan mengangkut barang kes tersebut; dan (c) OKT mengetahui dan menyedari bahawa barang kes tersebut adalah barang larangan import. S/N 13abySH3WkuydZJxUQrEGg **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 6 of 23 [18] Bagi elemen pertama, Hakim Bicara berpendapat bahawa pihak PR telah berjaya membuktikan elemen ini berdasarkan keterangan Pegawai Penilai (SP11) yang telah mengeluarkan keputusan penilaian (P29) berdasarkan kepada sampel barang kes yang dihantar kepadanya dan keterangan Pegawai Penjenisan (SP9) yang telah mengeluarkan keputusan klarifikasi barangan bagi kes penguatkuasaan, di mana berdasarkan sampel barang kes yang diterima, minuman Royal Stout adalah di bawah kod tariff 2203.00.1900. Selanjutnya hasil analisis oleh Pegawai Kimia (SP8) mendapati cecair di dalam tin minuman keras tersebut mengandungi “intoxicating liquor”. Laporan Kimia (P17) telah disediakan oleh SP8. [19] Selanjutnya Hakim Bicara juga mendapati tiada bukti dokumentari yang dikemukakan di Mahkamah untuk menunjukkan bahawa cukai import telah dibayar terhadap barang rampasan tersebut. [20] Mahkamah ini juga mendapati bahawa Hakim Bicara telah mempertimbangkan hujahan pihak OKT mengenai pemakaian seksyen 22 dan 22A Akta Kastam 1967. Hakim bicara tidak bersetuju dengan hujahan pihak pembelaan bahawa kuasa untuk membuat klasifikasi atau penjenisan terletak kepada Ketua Pengarah Kastam. Selanjutnya Hakim Bicara telah merujuk kepada seksyen 11(1) Akta Kastam 1967 dan juga Perintah Kastam (Larangan Mengenai Import) 2017 dan Hakim Bicara telah memutuskan bahawa keputusan penilaian oleh SP11 dan keputusan penjenisan oleh SP9 adalah betul melainkan dibuktikan sebaliknya. [21] Mengenai elemen kedua, iaitu OKT mengangkut barang kes tersebut, Hakim Bicara telah meneliti keterangan SP7 bahawa semasa ditahan, S/N 13abySH3WkuydZJxUQrEGg **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 7 of 23 OKT sedang memandu lori yang di dalamnya mengandungi 16800 tin minuman keras Royal Stout. [22] Hakim Bicara berpendapat bahawa keterangan SP7 adalah jelas dan tidak dapat menyangkal fakta bahawa semasa ditahan OKT sedang memandu dan mengangkut 16800 tin minuman keras yang dilarang pengimportannya. [23] Selanjutnya, elemen ketiga yang mesti dibuktikan bahawa OKT mengetahui dan menyedari barang kes tersebut adalah barang larangan import. Hakim Bicara menerima hujahan pihak PR yang merujuk kepada kes Parlan Dadeh v PP (2008) 6 MLJ 19; (2009) 1 CLJ 717; (2008) 2 MLRA 763 yang memutuskan bahawa: - “[25] The law is clear and well settled. Proof of knowledge is very often a matter of inference. The material from which the inference of knowledge can be drawn varies from case to case.” [24] Hakim Bicara juga telah merujuk kepada seksyen 8 dan 9 Akta Keterangan bahawa tingkah laku seseorang tertuduh adalah relevan dan beliau mendapati keterangan saksi-saksi pendakwaan bahawa OKT tidak cuba melarikan diri, OKT telah dengan sendiri membuka pad lock pada pintu belakang lori. Tiada keterangan bahawa OKT mengganggu atau menghalang SP7 dan anggota yang lain melaksanakan tugas mereka. SP7 mengesahkan bahawa pada sepanjang masa OKT memberi kerjasama kepada pihak Kastam. Hakim Bicara juga mendapati tiada sebarang keterangan oleh saksi- saksi pendakwaan mahu pun dalam laporan polis bahawa OKT menunjukkan reaksi terkejut atau gelisah semasa serbuan dijalankan. Hakim Bicara juga menerima keterangan SP7 bahawa OKT S/N 13abySH3WkuydZJxUQrEGg **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 8 of 23 memberitahunya bahawa OKT tahu barang yang dibawa adalah bir dan tidak berkastam. [25] Hakim Bicara selanjutnya merumuskan bahawa pihak PR telah berjaya membuktikan bahawa OKT mempunyai pengetahuan berkenaan penyimpanan barang-barang kes yang dirampas dari lori tersebut. (Rujuk Rekod Rayuan Jilid 1 di muka surat 34/perenggan 49) [26] Mahkamah ini mendapati rumusan Hakim Bicara berhubung dengan pembuktian elemen ketiga adalah mengelirukan kerana— (a) rumusan tersebut tidak menjurus kepada satu dapatan sama ada OKT mengetahui dan menyedari barang kes tersebut adalah barang larangan import; (b) rumusan bahawa “OKT mempunyai pengetahuan berkenaan penyimpanan barang-barang kes yang dirampas dari lori tersebut” adalah tidak konsisten dengan hal perkara yang menjadi teras pertuduhan iaitu “mengangkut barang-barang larangan”; dan (c) kesalahan “menyimpan barang-barang larangan” sebagaimana yang diperuntukkan dalam seksyen 135(1)(d) Akta Kastam 1967 dan “mengangkut barang-barang larangan” sebagaimana yang diperuntukkan dalam seksyen 135(1)(e) Akta yang sama adalah 2 cabang (limb) kesalahan yang berbeza yang memerlukan pembuktian elemen yang berbeza. S/N 13abySH3WkuydZJxUQrEGg **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 9 of 23 [27] Berdasarkan dapatan-dapatan Hakim Bicara seperti yang tersebut di atas, maka pada akhir kes pendakwaan, dan setelah melakukan penilaian maksimum terhadap keterangan yang dikemukakan oleh pihak PR, maka Hakim Bicara memutuskan bahawa pihak pendakwaan telah berjaya membuktikan kes prima facie dan memanggil OKT untuk membela diri. Kes pembelaan [28] Pihak pembelaan hanya mengemukakan seorang saksi iaitu OKT sendiri sebagai SD1. Keterangan OKT bahawa dia telah menerima upah sebanyak RM150.00 daripada seorang bernama Jimmie untuk memandu lori dengan nombor pendaftaran BPJ 1278 yang ditahan oleh pihak Kastam. [29] Menurut OKT bahawa dia tahu lori tersebut berisi minuman keras tetapi OKT tidak mengetahui sama ada cukai minuman keras tersebut telah dibayar atau tidak. OKT tidak melarikan diri semasa ditahan dan OKT telah mematuhi arahan pihak Kastam untuk memberhentikan lori dan membuka kunci bahagian belakang lori tersebut. Dapatan Hakim Bicara terhadap kes pembelaan [30] Berdasarkan keterangan OKT, dan berdasarkan keterangan saksi- saksi pendakwaan, Hakim Bicara berpuas hati bahawa OKT memandu lori BPJ 1278 secara berseorangan semasa ditahan. Hakim Bicara S/N 13abySH3WkuydZJxUQrEGg **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 10 of 23 mendapati bahawa pemilik lori adalah sebuah Syarikat Intra Pyramid yang dimiliki oleh Wong Wee Kong. [31] Mengenai satu watak yang disebut oleh OKT, iaitu Jimmie yang dikatakan telah mengupahnya untuk memandu lori tersebut, Hakim Bicara menerima hujahan pihak PR bahawa OKT tidak membuat laporan polis mengenai Jimmie kerana OKT tahu bahawa barang- barang yang diangkut di dalam lori tersebut adalah barang yang tidak dibayar duti cukai. [32] Hakim Bicara telah meneliti keterangan OKT bahawa OKT tahu mengenai minuman bir yang diangkut di belakang lori tersebut namun OKT tidak pasti sama ada barang tersebut bercukai duti atau tidak. Selanjutnya Hakim Bicara telah merujuk keterangan SP7 yang menyatakan bahawa OKT mengaku dan mengetahui barang tersebut adalah bir dan tidak berkastam. [33] Akhirnya Hakim bicara berpendapat bahawa keterangan OKT tidak berjaya menimbulkan keraguan yang munasabah terhadap kes pendakwaan. Prinsip Campur tangan Mahkamah dalam mendengar Rayuan. [34] Seksyen 316 Kanun Prosedur Jenayah memberikan kuasa kepada Mahkamah Tinggi dalam menjalankan bidang kuasanya sebagai Mahkamah yang mendengar rayuan. S/N 13abySH3WkuydZJxUQrEGg **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 11 of 23 [35] Selain daripada seksyen 316 Kanun Prosedur Jenayah, kes-kes yang diputuskan telah menjelaskan prinsip-prinsip yang berkaitan dengan campur tangan Mahkamah yang mendengar rayuan. [36] Privy Council dalam kes Sheo Swarp v. The King Emperor AIR [1934] PC 227 menyatakan bahawa sebelum mahkamah rayuan campur tangan dalam penemuan fakta, ia harus mempertimbangkan beberapa perkara, Lord Russell menyatakan: - "...the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witness; (2) the presumption of innocence in favour of the accused, a presumption is certainly not weaken by the fact that he has been acquitted at his trail; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived by a Judge who had the advantage of seeing the witnesses. To state this however is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice." [37] Selanjutnya Mahkamah Persekutuan di dalam kes Lim Kheak Teong v. PP [1984] 1 CLJ Rep 207; [1984] 2 CLJ 219; [1985] 1 MLJ 38 telah mengikuti keputusan di dalam kes Sheo Swarp v. The King Emperor AIR [1934] PC 227 seperti di atas. [38] Mahkamah ini juga merujuk kepada kes yang telah diputuskan oleh Mohd Zawawi Salleh JCA (pada ketika itu) iaitu P'ng Hun Sun v. Dato' Yip Yee Foo [2013] 1 LNS 320; [2013] 2 AMCR 350: S/N 13abySH3WkuydZJxUQrEGg **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 12 of 23 "[13] Application of the correct standard review has not been proved exceedingly difficult in cases involving purely factual or purely legal questions. It is trite that the appropriate standard of review for purely legal questions is de novo review where the appellate court is not required to give evidence to the rulings of the trial judge. Rather, it is free to perform its own analysis of the legal issue presented. When the finding of the trial judge is factual, however, the fact finder's decision cannot be disturbed on appeal unless the decision of the fact finder is plainly wrong (see China Airlines Ltd v. Maltran Air Corporation Sdn Bhd (formerly known as Maltran Air Services Corporation Sdn Bhd) (and Another Appeal) [1996] 3 CLJ 163; [1996] 2 AMR 2233; [1996] 2 MLJ 517); Zaharah A Kadir v. Ramuna Bauxite Pte Ltd & Anor [2011] 1 LNS 1015; [2012] 1 AMR 209, Kyros International Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri [2013] 3 CLJ 813; [2013] 1 LNS 1; [2013] 4 AMR 55; [2013] 2 MLJ 650). The findings of fact of the trial judge can only be reversed when it is positively demonstrated to the appellate court that: (a) by reason of some non-direction or mis-direction or otherwise the judge erred in accepting the evidence which he or she did accept; or (b) in assessing and evaluating the evidence the judge has taken into account some mater which he or she ought not to have taken into account, or failed to take into account some matter which he or she ought to have taken into account; or (c) it unmistakenly appears from the evidence itself, or from the unsatisfactory reasons given by the judge for accepting it, that he or she cannot have taken proper advantage of his or her having seen and heard the witnesses; or S/N 13abySH3WkuydZJxUQrEGg **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 13 of 23 (d) in so far aside judge has relied on manner and demeanour, there are other circumstances which indicate that the evidence of the witnesses which he or she accepted is not credible, as for instance, where those witnesses have on some collateral matter deliberately given an untrue answer. [14] What, then, is the appropriate standard of review for the appellate court to apply in mixed question of fact and law? In our view, the appropriate standard of review in this situation would be to give appropriate deference to the trial judge's factual finding but to reserve for the appellate court the ability to independently evaluate the legal effect of those factual finding." [39] Selanjutnya seksyen 316 dan prinsip-prinsip dalam campur tangan Mahkamah Rayuan juga dibincangkan di dalam buku Mallal's Criminal Procedure (Edisi ke-8) di muka surat 635, seperti berikut: "As a general rule, an appellate court will not interfere with the findings of fact by the lower court. However, there are exceptions to this general rule. An appellate court is always empowered to interfere and must interfere if the findings of fact of the trial judge suffer from some serious error or the decision is against the weight of evidence. In such a case the appellate court has a duty to make up and must make up its own mind, not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of the witnesses comes into question but with full liberty to draw its own inference from the facts proved or admitted and to decide accordingly." S/N 13abySH3WkuydZJxUQrEGg **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 14 of 23 Rayuan di Mahkamah ini [40] Mahkamah ini telah meneliti dan mempertimbangkan isu-isu yang dinyatakan oleh pihak OKT dalam Petisyen Rayuannya (rujuk Rekod Rayuan Jilid 1 di m/s 11) dan hujahannya yang menyatakan bahawa Hakim Bicara terkhilaf dari segi undang-undang dan fakta apabila: - (a) bergantung kepada keterangan SP7 untuk membuktikan elemen pengetahuan dan keterangan SP7 bahawa OKT mengakui barang tersebut adalah tidak berkastam; (b) tidak mengambil kira tingkah laku OKT yang positif; (c) tidak mengambil kira kegagalan pihak PR untuk memanggil pemilik syarikat Intra Pyramid Sdn Bhd iaitu Wong Wee Kong atau rakan-rakan kongsi yang lain sebagai saksi; (d) memutuskan pihak PR berjaya membuktikan bahawa barang kes adalah barang larangan import menurut Perintah Kastam (Larangan Mengenai Import) 2017, tanpa keterangan dokumentasi oleh OKT; (e) khilaf dalam mentafsir kepentingan Seksyen 22, Seksyen 22A dan seksyen 3(3) AK 1967; dan (f) mengarahkan OKT membayar cukai sebanyak RM102,090.24 selepas Mahkamah mensabit dan menjatuhi OKT dengan hukuman penjara selama 36 bulan. S/N 13abySH3WkuydZJxUQrEGg **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 15 of 23 Dapatan Mahkamah Elemen Pertama: Barang rampasan tersebut adalah Barang Larangan Import [41] Di bawah seksyen 2 Akta Kastam 1967 telah memberi definisi "barang- barang larangan" iaitu barang-barang yang mana import atau eksportnya dilarang, sama ada dengan mutlak, atau dengan bersyarat oleh suatu perintah di bawah seksyen 31 atau mana-mana undang- undang bertulis yang lain. [42] Manakala Perintah Kastam (Larangan Mengenai Import) Pindaan 2017 merupakan satu perintah yang digubal di bawah seksyen 31(1) Akta Kastam 1967 bahawa Menteri boleh, dengan perintah: (a) melarang pengimportan ke dalam, atau pengeksportan dari, Malaysia atau mana bahagian daripadanya atau kelas barang- barang; dan (b) melarang pengimportan ke dalam, atau pengeksportan dari, Malaysia atau mana-mana bahagian daripadanya atau tempat yang dinyatakan. [43] Mahkamah ini bersetuju dengan dapatan Hakim Bicara bahawa keterangan saksi-saksi pendakwaan jelas menunjukkan bahawa barang rampasan tersebut adalah barang larangan import di bawah Perintah Kastam (Larangan Mengenai Import) 2017. [44] Tiada sebarang bukti dokumentari yang dikemukakan di Mahkamah untuk menunjukkan bahawa syarat-syarat atau cara pengimportan yang ditetapkan telah dipatuhi oleh OKT. S/N 13abySH3WkuydZJxUQrEGg **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 16 of 23 [45] Mahkamah ini berpendapat bahawa pihak pendakwaan telah berjaya membuktikan melampaui keraguan yang munasabah bahawa sebanyak 16800 tin minuman keras jenama Royal Stout yang dirampas adalah barang larangan import di mana pengimportannya adalah tertakluk kepada cara yang diperuntukkan dalam Butiran 3, Bahagian II, Jadual Ketiga (minuman keras) dalam Perintah Kastam (Larangan Mengenai Import 2017). Selanjutnya telah dibuktikan juga bahawa barang rampasan tersebut adalah merupakan “intoxicating liquor” seperti yang ditakrifkan di bawah seksyen 2(1) Akta Kastam 1967. Elemen Kedua: sama ada OKT dengan kesedaran dan pengetahuan mengangkut barang kes tersebut. [46] Mahkamah ini merujuk kepada definisi “angkut” seperti mana yang dinyatakan dalam Kamus Dewan Bahasa Pustaka – iaitu membawa dari satu tempat ke tempat lain. Dalam kes ini terdapat keterangan yang menunjukkan bahawa sebelum ditahan, motolori dalam keadaan bergerak untuk menuju ke satu tempat yang lain. Mahkamah berpendapat bahawa keadaan motolori yang bergerak sebelum ditahan adalah memenuhi definisi “angkut” sebagaimana yang dinyatakan di atas. [47] Semasa ditahan, OKT seorang sahaja berada di dalam motolori tersebut dan OKT mengaku bahawa dia adalah pemandu lori BPJ 1278 yang digunakan untuk mengangkut sejumlah 16800 tin minuman keras jenama Royal Stout, yang merupakan barang rampasan dalam S/N 13abySH3WkuydZJxUQrEGg **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 17 of 23 kes ini. OKT juga sedar dan tahu bahawa barang yang diangkut adalah minuman keras jenama Royal Stout. Maka Mahkamah ini berpuas hati bahawa perbuatan mengangkut telah dilakukan oleh OKT. Elemen ketiga: Sama ada OKT mengetahui dan menyedari bahawa barang kes tersebut adalah barang larangan import [48] Pihak pembelaan berhujah bahawa OKT tidak mempunyai pengetahuan berkenaan barang-barang yang dijumpai di dalam lori tersebut adalah barang larangan import. OKT juga mendakwa bahawa barang-barang tersebut bukan miliknya, dia hanya dibayar upah RM150.00 untuk memandu lori tersebut. [49] Selain dua elemen di atas, elemen ketiga ini merupakan elemen utama yang perlu diambil kira oleh Mahkamah dalam rayuan ini. Ini membabitkan elemen pertama iaitu barang tersebut adalah barang larangan import dan elemen ketiga, OKT sedar barang itu adalah barang larangan import. Apabila kedua-dua elemen ini bergabung ia akan menunjukkan bahawa OKT mempunyai pengetahuan bahawa barangan yang dibawa adalah barang larangan import di bawah Perintah Kastam (Larangan Mengenai Import) 2017. [50] Pihak pendakwaan di dalam membuktikan elemen pengetahuan ini telah merujuk kepada anggapan di bawah seksyen 135(2) Akta Kastam 1967. Seksyen ini memperuntukkan bahawa: “Dalam mana-mana pendakwaan di bawah seksyen ini atau seksyen 139, apa-apa barang-barang berduti, tak berkastam atau S/N 13abySH3WkuydZJxUQrEGg **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 18 of 23 larangan hendaklah disifatkan barang-barang berduti, tak berkastam atau larangan, mengikut mana-mana yang berkenaan, dengan disedari oleh defendan melainkan jika dibuktikan sebaliknya oleh defendan itu.” [51] Di bawah seksyen 135(2) Akta tersebut, satu anggapan undang- undang akan timbul bahawa pihak OKT mempunyai pengetahuan bahawa barang yang diangkutnya adalah barang larangan import kecuali jika OKT dapat membuktikan sebaliknya. [52] Pihak OKT boleh mematahkan anggapan ini berdasarkan keterangan mengikut keadaan di mana adalah munasabah untuk disimpulkan atas imbangan kebarangkalian, bahawa adalah mustahil untuk dia mengetahui mengenai status barangan tersebut. [53] Meneliti alasan penghakiman oleh Hakim Bicara, Mahkamah ini boleh membuat kesimpulan bahawa Hakim Bicara tidak percaya kepada versi pembelaan dan cenderung untuk menerima keterangan SP7 bahawa OKT telah mengaku kepada SP7 bahawa barang yang diangkut di dalam lori tersebut adalah bir dan tidak berkastam. [54] Isu di sini, adakah pengakuan tersebut dibuat oleh OKT? Mahkamah ini telah meneliti rekod rayuan dan mengambil perhatian kepada fakta- fakta berikut yang berkaitan dengan isu ini, iaitu: - (a) Hanya SP7 yang mendengar pengakuan yang dikatakan dibuat oleh OKT. (b) Tiada anggota serbuan yang lain memberi keterangan bahawa mereka juga mendengar pengakuan OKT. S/N 13abySH3WkuydZJxUQrEGg **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 19 of 23 (c) Dalam pemeriksaan utama, keterangan OKT seperti berikut (Rujuk RR Jilid 2 m/s 73) “saya bekerja sebagai pemandu lori. Saya memandu lori atas arahan Jimmie. Lori ditahan oleh Kastam. Lori ada disealkan. Saya cuma tahu dalam lori ada minuman keras, sama ada dibayar duti saya tidak pasti. Saya tidak tahu sama ada minuman keras dibayar duti atau tidak. Jimmie ada beri upah RM150.00. Apabila saya keluar dari lokap, saya cuba hubungi Jimmie tetapi tidak dapat. Semasa lori ditahan oleh kastam, saya tidak cuba lari sebab saya tidak tahu tentang bayaran duti. Saya bagi kerjasama kepada kastam.” (d) Pada pandangan Mahkamah ini, keterangan OKT yang tersebut adalah munasabah, tambahan pula semasa SP7 disoal balas dengan merujuk kepada rakaman percakapan pada soalan 21, SP7 setuju bahawa OKT hanya tahu tentang muatan beer dan SP7 tidak bertanya mengenai pengetahuan OKT bahawa barang itu barang larangan import. SP7 setuju bahawa OKT hanyalah pemandu lori dan OKT tiada pengetahuan bahawa barang dalam lori adalah barang tidak berkastam. (Rujuk RR Jilid2 muka surat 63). (e) Ketika OKT diperiksa balas, tidak ada soalan yang diajukan kepadanya bahawa dia mengetahui barang dalam lori adalah barang larangan import. (f) Mahkamah ini merujuk kepada keputusan Mahkamah Rayuan dalam kes Mohamad Nazarie bin Halidi v. PP dan yang lain [2019] 6 CLJ 61; [2019] MLJU 232, di mana Mahkamah Rayuan S/N 13abySH3WkuydZJxUQrEGg **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 20 of 23 juga merujuk kepada keputusan dalam kes Wong Swee Chin v PP (1980) 1 LNS 138 dan membuat pemerhatian berikut: “However, as noted by the learned trial Judge, there were no such allegations put to PW1 nor to the police officer concerned when these key witnesses were in the witness box during cross- examination. It needs no reiteration from us that failure to cross-examine a witness amounts in law, to accepting the testimony that was not so cross- examined. [See the case of Wong Swee Chin v. PP [1980] 1 LNS 138.]” (g) Selanjutnya, Mahkamah ini mendapati Hakim Bicara gagal membuat penilaian sewajarnya berhubung dengan isu kelakuan (conduct) OKT semasa ditahan oleh pihak Kastam. (h) Hakim Bicara dalam Alasan Penghakimannya mendapati bahawa OKT bukan sahaja tidak cuba melarikan diri, malah memberikan kerjasama yang baik semasa ditahan oleh pihak Kastam. Walau bagaimanapun, fakta ini tidak diberikan pertimbangan sewajarnya oleh Hakim Bicara sedangkan fakta ini adalah relevan di bawah seksyen 8 Akta Keterangan 1950. (i) Mahkamah ini mendapati tingkah laku OKT bahawa dia tidak cuba melarikan diri semasa serbuan, adalah konsisten dengan dakwaannya bahawa dia tidak mengetahui status barangan tersebut yang merupakan barang larangan import. (j) Berdasarkan alasan yang tersebut di atas, Mahkamah ini cenderung untuk membuat kesimpulan bahawa OKT tidak pernah membuat pengakuan kepada SP7 bahawa dia S/N 13abySH3WkuydZJxUQrEGg **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 21 of 23 mengetahui barang-barang yang dipertikaikan itu adalah barangan larangan import. [55] Mahkamah ini mendapati bahawa Hakim Bicara telah terkhilaf apabila memutuskan bahawa pihak pendakwaan telah berjaya membuktikan kes prima facie dan memanggil OKT untuk membela diri. [56] Berdasarkan keterangan saksi-saksi pendakwaan, Mahkamah ini mendapati pihak PR telah gagal membuktikan OKT mempunyai pengetahuan bahawa barang tersebut adalah barang larangan import. [57] Memandangkan OKT telah dipanggil membela diri, maka Mahkamah ini mendapati OKT telah berjaya mematahkan anggapan di bawah seksyen 135(2) Akta Kastam 1967, bahawa OKT tiada pengetahuan mengenai status barangan tersebut. Tingkah laku OKT semasa ditahan, sepertimana disahkan oleh SP7 bahawa dia tidak cuba melarikan diri, malahan dia telah menurut arahan SP7 untuk membuka bahagian belakang lori tersebut tanpa berdolak dalih, maka atas imbangan kebarangkalian tingkah laku OKT yang sedemikian menunjukkan bahawa dia tidak tahu bahawa barang yang dibawa itu tidak mematuhi Perintah Kastam (Larangan Mengenai Import) 2017. OKT hanya tahu barang yang diangkut di dalam lori tersebut adalah bir/minuman keras. S/N 13abySH3WkuydZJxUQrEGg **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 22 of 23 Kesimpulan [58] Sebagai kesimpulan, Mahkamah ini berpendapat bahawa Hakim Bicara telah terkhilaf dalam dapatannya bahawa OKT mempunyai pengetahuan bahawa barang tersebut adalah barang larangan import. Oleh itu Mahkamah ini mendapati terdapat alasan yang munasabah untuk Mahkamah ini mengganggu dapatan Hakim Bicara yang tersebut. [59] Setelah mempertimbangkan keterangan semua saksi dalam kes pendakwaan dan pembelaan, maka Mahkamah memutuskan bahawa perintah sabitan oleh Hakim Bicara adalah tidak selamat. Maka rayuan ini dibenarkan, dan perintah sabitan dan hukuman oleh Hakim Bicara diketepikan. Bertarikh: 18 November 2023. ………………………….. (FATHIYAH BINTI IDRIS) Pesuruhjaya Kehakiman Mahkamah Tinggi Butterworth Pulau Pinang S/N 13abySH3WkuydZJxUQrEGg **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 23 of 23 PIHAK-PIHAK: Bagi pihak Perayu: Kwang Sok Kin bersama V. Parthipan Peguam Bela dan Peguam Cara Tetuan Kwang Lim & Azni Pulau Pinang Bagi pihak Responden: Nur Anida binti Mohd Nasir Timbalan Pendakwa Raya Jabatan Kastam Diraja Malaysia Putrajaya S/N 13abySH3WkuydZJxUQrEGg **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

BB-B52NCC-31-04/2023

PLAINTIF AMBANK (M) BERHAD DEFENDAN 1. ) BISTROAMERICANA (SP) SDN BHD 2. ) CHASWOOD RESOURCES HOLDINGS LIMITED

Penghakiman terus - Skim Penyusunan di bawah seksyen 366(3) Akta Syarikat 2016 tidak dimuktamadkan - adakah penyelesaian melalui Skim Penyusunan semula suatu penghakiman muktamad - adakah Plaintif selaku salahsatu pemiutang dalam Skim Penyusunan boleh membatalkan Skim secara unilateral - adakah Plaintif berhak meneruskan tuntutan asal berdasarkan Sijil perakuan keberhutangan

17/11/2023

Puan Sazlina binti Safie

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=c80a1726-8e8f-4fd9-92a7-1e9df03a33d3&Inline=true

Microsoft Word - AP-BB-B52NCC-31-04-2023-O.14 1 DALAM MAHKAMAH SESYEN PETALING JAYA DALAM NEGERI SELANGOR DARUL EHSAN WRIT SAMAN NO – BB-B52NCC-31-04/2023 ANTARA AMBANK (M) BERHAD [COMPANY NO.: 196901000166] [TETUAN LEE & KOH] …PLAINTIF DAN 1. BISTROAMERICANA (SP) SDN BHD [COMPANY NO.: 200701022557] [TETUAN CHELLAM WONG] 2. CHASWOOD RESOURCES HOLDINGS LIMITED [COMPANY NO.: 200401894-D] …DEFENDAN-DEFENDAN ALASAN PENGHAKIMAN (RAYUAN INTERLOKUTORI) LATARBELAKANG KES Ini adalah rayuan Perayu/Defendan Pertama BISTROAMERICANA (SP) SDN BHD [COMPANY NO.:200701022557] melalui Notis Rayuan di 17/11/2023 14:45:34 BB-B52NCC-31-04/2023 Kand. 41 S/N JhcKyIO2USpx6d8Doz0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Lampiran 38 terhadap keputusan Mahkamah ini bertarikh 26/9/2023 yang membenarkan permohonan Plaintif untuk suatu Penghakiman Terus dengan kos terhadap Defendan Pertama. KEPUTUSAN DAN DAPATAN MAHKAMAH [1] Pada 26/9/2023, Mahkamah telah membenarkan Lampiran 23 permohonan Plaintif untuk merekodkan Penghakiman Terus terhadap Defendan Pertama dengan kos ditanggung oleh pihak Defendan Pertama. Kos ditetapkan RM2,000.00 (tidak termasuk disbursement). [2] Notis Permohonan Lampiran 23 adalah permohonan Plaintif untuk suatu penghakiman terhadap Defendan Pertama di bawah Aturan 14 Kaedah 1 Kaedah-Kaedah Mahkamah 2012 yang menyatakan bahawa Defendan Pertama hendaklah membayar Plaintif untuk jumlah seperti berikut: (a) Jumlah sebanyak RM848,392.52 dikira setakat 31/12/2022 di bawah satu Kemudahan Pinjaman Terma; (b) Faedah berterusan ke atas jumlah RM848,392.52 pada kadar 3.00% setahun atas Kadar Pinjaman Asas (BLR) Plaintif (kadar semasa pada 31/12/2022 adalah 6.45% setahun S/N JhcKyIO2USpx6d8Doz0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 tertakluk kepada perubahan dari masa ke semasa) [“Kadar Yang Ditetapkan”] dikira pada kiraan harian beserta faedah ingkar pada kadar 1.00% setahun atas “Kadar Yang Ditetapkan” tersebut dikira pada kadar harian pada 1/1/2023 sehingga ke tarikh penyelesaian penuh; (c) Kos tindakan dan permohonan ini; (d) Lain-lain relief atau perintah lanjut dan/atau selainnya yang dianggap sesuai dan patut oleh Mahkamah yang Mulia ini. [3] Alasan permohonan Plaintif adalah dinyatakan dalam affidavit sokongan yang mana antara lain menyatakan bahawa: 1) Atas permintaan Defendan Pertama dan melalui Surat Tawaran bertarikh 11/3/2014 (selepas ini dirujuk sebagai Surat Tawaran Pertama) yang telah diterima melalui Resolusi Lembaga Pengarah bertarikh 25/3/2014 dan Perjanjian kemudahan bertarikh 16/6/2014 (selepas ini dirujuk sebagai Perjanjian Kemudahan tersebut, Plaintif telah bersetuju memberi kemudahan perbankan pinjaman terma dengan had berjumlah RM2,000,000.00 kepada Defendan Pertama (selepas ini dirujuk sebagai Kemudahan Tersebut) beserta dengan kadar faedah yang telah ditetapkan oleh Plaintif dari masa ke semasa dan tertakluk kepada terma-terma dan S/N JhcKyIO2USpx6d8Doz0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 syarat-syarat yang terkandung di bawah Surat Tawaran Pertama tersebut dan Perjanjian Kemudahan Tersebut. 2) Salinan Tawaran Pertama dieksibitkan sebagai “KAS-1”, Resolusi Pengarah sebagai eksibit “KAS-2” dan Perjanjian Kemudahan sebagai “KAS-3”. 3) Sebagai balasan, Defendan Pertama telah melaksanakan satu Debentur bertarikh 16/6/2014 yang memihak kepada Plaintif melalui gadaian tetap dan terapung pertama ke atas segala aset-aset Defendan Pertama di masa kini dan masa hadapan tertakluk kepada terma dan syarat Debentur tersebut. 4) Salinan Debentur dieksibitkan sebagai “KAS-4”. 5) Sebagai balasan seterusnya, satu Surat Subordinat bertarikh 16/6/2014 telah ditandatangan oleh Syarikat Chaswood Resources Sdn Bhd No. syarikat 571942-Mahkamah, seorang Andrew Roach Reddy (No. K/P:571130-10-5417) dan Nicol Roach Reddy (No. K/P: 810728-14-6139) telah bersetuju bahawa mana-mana pinjaman dan pendahuluan yang telah diberikan kepada Defendan Pertama akan disubordinatkan kepada kemudahan tersebut sehingga kemudahan tersebut dibayar dan diselesaikan sepenuhnya kepada Plaintif tertakluk kepada terma dan syarat. S/N JhcKyIO2USpx6d8Doz0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 6) Salinan Surat Subordinat dieksibitkan sebagai “KAS-5”. 7) Melalui Garenti dan Indemnity bertarikh 1/7/2014, Defendan Kedua telah secara bersesama dan berasingan bersetuju untuk menjamin pembayaran yang kena dibayar melalui pinjaman tersebut oleh Defendan Pertama dan selanjutnya menanggung rugi Plaintif untuk segala tuntutan, kehilangan, kerugian dan kos lanjutan dari keingkaran Defendan Pertama. 8) Salinan Gerenti Korporat dieksibitkan sebagai “KAS-6”. 9) Melalui Surat Tawaran bertarikh 20/8/2014 (Surat Tawaran Kedua) yang telah dipersetujui dan ditandatangan oleh Defendan Pertama, Plaintif telah menyemak semula Kemudahan Tersebut tertakluk kepada terma dan syarat di bawah Surat Tawaran Kedua. 10) Surat Tawaran kedua dieksibitkan sebagai “KAS-7”. 11) Atas permintaan Defendan Pertama dan melalui Surat Tawaran bertarikh 29/4/2015 (Surat Tawaran Ketiga), Plaintif telah selanjutnya bersetuju untuk memperbaharui Kemudahan Tersebut tertakluk kepada terma dan syarat yang terkandung di bawah Surat Tawaran Ketiga. 12) Surat Tawaran Ketiga dieksibitkan sebagai “KAS-8”. S/N JhcKyIO2USpx6d8Doz0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 13) Defendan Pertama telah gagal mengawal selia Kemudahan Tersebut apabila gagal, enggan dan/atau cuai membuat pembayaran menurut terma-terma dan syarat-syarat yang telah dipersetujui sekalipun tuntutan dan peringatan berulangkali telah diberikan oleh Plaintif. 14) Melalui surat bertarikh 29/6/2018, Plaintif telah memberi notis kepada Defendan Pertama dan memaklumkan lanjutan dari ketidakaturan penyeliaan akaun kemudahan yang berterusan oleh Defendan Pertama, kadar faedah yang ditetapkan di bawah Kemudahan Tersebut telah disemak semula dan dipinda serta merta. 15) Surat bertarikh 29/6/2018 dieksibitkan sebagai “KAS-9”. 16) Lanjutan daripada keingkaran berterusan Defendan Pertama, Plaintif telah melalui peguamcaranya menghantar Notis Penamatan dan Tuntutan bertarikh 4/7/2018 kepada Defendan Pertama dan Defendan Kedua menarik balik dan membatalkan Kemudahan tersebut serta menuntut bayaran keseluruhan tunggakan di bawah Kemudahan tersebut sebanyak RM974,149.56 setakat 30/6/2018 beserta faedah. 17) Notis Penamatan dan Tuntutan bertarikh 4/7/2018 dieksibitkan sebagai “KAS-10”. S/N JhcKyIO2USpx6d8Doz0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 18) Selanjutnya, Defendan Pertama beserta lain-lain syarikat di bawah Syarikat Chaswood Resources Sdn Bhd (CRSB) sebagai pemohon telah memperolehi satu Perintah Halangan bertarikh 4/7/2018 (Perintah Halangan) di Mahkamah Tinggi Kuala Lumpur dan Perintah Halangan berkuatkuasa sehingga 15/11/2018. 19) Perintah Halangan dieksibiytkan sebagai “KAS-11”. 20) Pada 14/1/2019, Mahkamah Tinggi Kuala Lumpur telah memberi kelulusan dan sanksi kepada CRSB dan lain-lain pemohon termasuk Defendan Pertama untuk satu Skim Penyusunan Semula yang telah diluluskan di bawah seksyen 366(3) Akta Syarikat 2016. 21) Eksibitkan “KAS-12” adalah perintah Mahkamah Tinggi Kuala Lumpur, eksibit “KAS-13” adalah “Explanatory Statement” dan “KAS-14” adalah “Addendum kepada Sxplanatory Statement. 22) Adalah menjadi satu terma bahawa jelas dan tersurat bahawa Penyusunan semula termasuk hutang-hutang Defendan Pertama dan CRSB kepada Plaintif perlu disempurnakan dalam tempoh 12 bulan dan jika gagal, para pemiutang skim boleh menarik balik kelulusan yang diberikan di bawah skim S/N JhcKyIO2USpx6d8Doz0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 tersebut dan berhak meneruskan remedy sedia ada sebelum ini. 23) Setakat 30/9/2021, Plaintif hanya menerima RM1,708,920.00 di bawah Skim Penyusunan semula tersebut. Seteah mengambil kira bayaran dan pengenepian (waiver), masih terdapat lagi baki bayaran sebanyak RM786,000.00 yang perlu dibayar kepada Plaintif di bawah Skim Penyusunan Semula tersebut. 24) Defendan Pertama dan CRSB masih enggan dan gagal untuk menyempurnakan dan menyelesaikan Skim Penyusunan Tersebut. 25) Pada 15/10/2021, melalui satu Resolusi Lembaga Pengarah, CRSB telah memutuskan bahawa syarikat CRSB digulungkan melalui penggulungan sukarela pemiutang menurut seksyen 439 (1)(a) Akta Syarikat 2016. 26) Resolusi Lembaga Pengarah dieksibitkan sebagai “KAS-18”. 27) Lanjutan itu, Plaintif telah melalui peguamcara menghantar Notis Tuntutan bertarikh 6/1/2023 kepada Defendan Pertama dan Notis Tuntutan bertarikh 17/2/2023 kepada Defendan Kedua selaku penjamin memaklumkan bahawa Plaintif menarik balik skim Penyusunan tersebut dan akan S/N JhcKyIO2USpx6d8Doz0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 meneruskan dengan remedy sedia ada Plaintif untuk tuntutan asal tertunggak sebanyak RM848,329.52 setakat 31/12/2022 beserta faedah bagi Kemudahan yang telah dibatalkan tersebut. 28) Notis tuntutan dieksibitkan sebagai “KAS-19”. 29) Defendan Pertama dan Defendan Kedua masih enggan, gagal dan/atau cuai membuat bayaran tunggakan tersebut. 30) Plaintif telah menghantar Salinan Perakuan Keberhutangan sebagaimana di eksibit “KAS-2”. 31) Defendan Pertama telah memasukkan kehadiran dalam tindakan ini dan Plaintif percaya pihak Defendan Pertama tidak ada pembelaan dan/atau isu untuk dibicarakan dalam tindakan ini. [4] Defendan Pertama telah memfailkan pembelaan dan affidavit jawapan yang mana antaranya menyatakan seperti berikut: 1) Tarikh potong (Cut-off date) yang dipersetujui dalam Skim Pengaturan ditetapkan pada 30/9/2018, wang terhutang oleh Defendan Pertama kepada Plaintif hanya boleh dikira sehingga 30/9/2018 mengikut terma Skim Pengaturan. S/N JhcKyIO2USpx6d8Doz0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 2) Defendan hanya mengakui hutang setakat mana jumlah wang yang terhutang oleh Defendan Pertama, CRSB dan Bistroamericana (BB) Sdn Bhd kepada Plaintif pada 30/9/2018 berjumlah RM3,067,000.00 dan pihak-pihak telah memasuki Skim Pengaturan dengan terma-terma dan syarat-syarat untuk penyelesaian penuh. 3) Defendan Pertama kelulusan yang diberikan kepada Skim Pengaturan oleh pemiutangnya tidak ditarik balik secara berkesan kerana: a) Skim masih sah dan mengikat pihak-pihak walaupun tidak lengkap selepas tempoh duabelas (12) bulan; b) Pemiutang Skim telah bersetuju dengan perlanjutan masa untuk menyelesaikan Skim Pengaturan; c) Oleh kerana kelulusan yang diberi kepada Skim Pengaturan memerlukan 75% Pemiutang Skim secara nilai, pembatalan sebanyak 75% daripada Pemiutang Skim dikehendaki untuk kelulusan Skim ditarik balik dengan berkesan; d) Defendan Pertama telah melaksanakan Skim Pengaturan dan bergantung kepada persetujuan Plaintif untuk lanjutan masa; dan S/N JhcKyIO2USpx6d8Doz0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 e) Oleh kerana ini adalah isu undang-undang, ia akan dihuraikan dengan lebih lanjut semasa perbicaraan kelak. 4) Rancangan “Proposed Malaysia Sale” diakui dan dipersetujui mengikut terma dan skim pengaturan dan ini bermaksud: a) Plaintif melalui surat bertarikh 21/8/2019 telah bersetuju bahawa RM1,708,918.00 daripada “Proposed Malaysia Sale” hendaklah digunakan sebagai penyelesaian penuh dan muktamad bagi pelepasan semua sekuriti ke atas aset anak syarikatnya (termasuk Defendan Pertama); b) Terma dan syarat penyelesaian di bawah Skim Pengaturan masih boleh dikuatkuasakan terhadap dan diselesaikan oleh CRSB sahaja; c) Bayaran akhir mengikut pelan pembayaran telah dibuat pada 30/9/2021. 5) Plaintif telah bersetuju untuk lanjutan masa bagi menyelesaikan Skim Pengaturan selama-lamanya dengan mengambilkira keadaan berikut: a) Keadaan pasaran yang disebabkan pendemik Covid-19; b) Plaintif telah menerima pembayaran akhir pelan “Proposed Malaysia Sale” tanpa menimbulkan atau S/N JhcKyIO2USpx6d8Doz0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 mempertikaikan bahawa ia dilakukan lewat selepas 31/3/2021; c) Plaintif tidak membangkitkan isu menarik balik kelulusan yang diberikan kepada Skim Pengaturan pada masa itu. 6) Defendan Pertama menyatakan bahawa Plaintif telah menerima RM1,708,920.00 sebagai balasan melengkapkan komponen “Penyelesaian melalui Jualan Perniagaan” dalam Skim Pengaturan bagi baki dan menyatakan bahawa “Penyelesaian melalui Jualan Perniagaan” tidak disiapkan kerana keadaan pasaran terjejas disebabkan pendamik Covid- 19, keengganan Plaintif terhadap tawaran pembeli walaupun ia merupakan tawaran yang munasabah berdasarkan nilai pasaran semasa dan ia sama sekali tidak disebabkan oleh kesalahan Defendan Pertama. 7) “Penyelesaian melalui Terbitan Saham” tidak lengkap dan lewat disebabkan oleh sekuriti-sekuriti Defendan Kedua yang dinyahsenaraikan oleh SGX-ST pada 20/3/2023. 8) Skim Pengaturan tidak boleh ditarik balik secara unilateral oleh Plaintif. Secara alternative, jika Plaintif telah Berjaya menarik balik kelulusan yang diberikan kepada Skim Pengaturan, Plaintif masih terikat dengan terma dan syarat-syaratnya S/N JhcKyIO2USpx6d8Doz0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 kerana Plaintif sahaja tidak terdiri daripada 75% Pemiutang Skim dalam nilai. 9) Defendan Pertama percaya terdapat isu-isu untuk dibicarakan dan sepatutnya tidak diputuskan melalui penghakiman ringkas ini. [5] Plaintif dalam affidavit jawapan menjawab isu berbangkit sebagaimana berikut: a) Tarikh potong (cut-off date) di bawah Skim Penyusunan tidak lagi terpakai lanjutan daripada penarikan semula dan pembatalan Skim Penyusunan tersebut oleh Plaintif di mana Plaintif berhak untuk menguatkuasakan dan melaksanakan segala hak dan remedy sedia ada sebelum ini dan menuntut keseluruhan jumlah tertunggak serta faedah berterusan daripada Defendan Pertama. b) Penyelesaian melalui jualan adalah hanya sebahagian daripada proses penyelesaian penuh di bawah Skim Penyusunan. c) Plaintif menolak tawaran pembelian hartanah kerana tawaran pembelian adalah jauh lebih rendah daripada jumlah penyelesaian di bawah Skim dan fakta menunjukkan bahawa ketidakpatuhan CRSB dan Defendan Pertama akan terma dan S/N JhcKyIO2USpx6d8Doz0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 syarat penyelesaian di bawa Skim tersebut tidak boleh dipinda sewenang-wenangnya oleh CRSB atau Defendan Pertama. d) Plaintif tidak ada sebarang tanggunjawab untuk menerima tawaran pembelian hartanah tersebut yang tidak mematuhi syarat dan terma Skim. e) Pasaran jatuh disebabkan pendemik Covid-19 bukanlah alasan yang sah dan munasabah untuk tidak mematuhi terma dan syarat Skim Penyusunan. f) CRSB hanya memohon lanjutan masa sehingga 31/3/2021 untuk sempurnakan Skim Penyusunan. Rujuk eksibit “GKM-1”. g) Tiada sebarang peruntukan di bawah terma-terma dan syarat- syarat Skim Penyusunan tersebut bahawa pembatalan memerlukan kelulusan 75% pemiutang Skim. h) Tiada lanjutan masa lagi bagi Skim Penyusunan dari CRSB atau Defendan Pertama yang menunjukkan mereka sudah tidak berniat serta berkeupayaan untuk melengkapkan Skim Penyusunan tersebut. i) Plaintif tidak pernah bersetuju bahawa jumlah penyelesaian di bawah penjualan perniagaan tersebut adalah sebagai S/N JhcKyIO2USpx6d8Doz0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 penyelesaian penuh dan muktamad ke atas aset-aset anak syarikat CRSB termasuk Defendan Pertama. [7] Mahkamah telah menilai kesemua kertas kuasa yang difailkan sebelum memutuskan perkara ini. Notis Permohonan Plaintif dalah berdasarkan Aturan 14 Kaedah-Kaedah Mahkamah 2012 telah memperuntukkan seperti berikut:- “1. (1) Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has entered an appearance in the action, the plaintiff may, on the ground that defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part thereof except as to the amount of any damages claimed, apply to the Court for judgment against that defendant.” [8] Dalam kes CEMPAKA FINANCE BHD V HO LAI YING (TRADING AS KH TRADING) & ANOR [2006] 2 MLJ 685, Mahkamah Persekutuan telah memutuskan bahawa:- “In an application under O14, the burden is on the plaintiff to establish the following conditions: that the defendant must have entered appearance; that the statement of claim must have been served on the defendant; that the affidavit in support must comply with r 2 of O14 in that it must verify the facts on which the claim is S/N JhcKyIO2USpx6d8Doz0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 based and must state the deponent’s belief that there is no defence to the claim. Once those conditions are fulfilled, the burden then shifts to the defendant to raise triable issues.” [9] Pada dapatan Mahkamah, walaupun jika dilihat daripada affidavit- afidavit kedua-dua pihak kelihatan seperti wujudnya satu pertikaian yang rumit, sebenarnya isu yang berbangkit adalah kesan daripada satu Skim Penyusunan yang telah dimasuki kedua-dua pihak (dan juga Defendan Kedua/CRSB dalam tindakan ini). [10] Skim Penyusunan tersebut tertakluk kepada terma-terma dan syarat-syarat nyata. Mahkamah merujuk semula kepada Skim Penyusunan tersebut yang dieksibitkan khususnya sebagai “KAS- 13” dan “KAS-14”. [11] Defendan Pertama sendiri mengakui dalam affidavit-afidavit mereka bahawa Skim Penyusunan tidak lengkap selepas duabelas (12) bulan dan telah gagal disempurnakan. [12] Defendan Pertama juga gagal menunjukkan bahawa pihak-pihak berniat untuk melanjutkan tempoh Skim atau terdapat persetujuan untuk satu lanjutan masa. Penyataan Defendan Pertama “Plaintif telah bersetuju untuk lanjutan masa bagi menyelesaikan Skim Pengaturan selama-lamanya” tidak berasas. S/N JhcKyIO2USpx6d8Doz0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 [13] Defendan Pertama sendiri memberikan satu tarikh potong (Cut-of date) dalam afidavit mereka. Jika dilihat eksibit-eksibit yang dikemukakan, pihak-pihak bergantung sepenuhnya dengan terma- terma dan syarat yang dinyatakan. [14] Sebagai contoh, jika dirujuk eksibit “KAS-15” (surat Chaswood kepada Plaintif) dan “KAS-16” (Surat balasan Plaintif kepada Chaswood), diakhir surat, Plaintif menekankan bahawa cadangan dipersetujui “subject to the terms and condition as stated in the explanatory statement dated 18/10/2018 of the Proposed SOA”. [15] Alasan yang dikemukakan Defendan Pertama berhubung kegagalan pelaksanaan Skim Penyusunan (seperti pendemik Covid-19) tidak termasuk dalam terma skim penyelesaian. Tiada peruntukan sebagaimana dalam kontrak wujudnya isu “force majeure” di sini. [16] Skim ini juga memperuntukkan secara jelas jumlah sesuatu hartanah dinilai sebagai contoh hartanah yang dinilai pada kadar RM280,000.00 tetapi hanya ingin dijual dengan harga lebih rendah dari apa yang dijangkakan. [17] Mahkamah percaya Skim ini dibuat untuk menjaga kepentingan semua pihak dan tiada terma menunjukkan apa yang ditetapkan perlu dan wajib diterima pakai oleh pemiutang-pemiutang S/N JhcKyIO2USpx6d8Doz0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 sedangkan ia tidak menggambarkan syarat dan terma yang nyatakan. [18] Berhubung isu bahawa Plaintif tidak boleh menamatkan atau membatalkan Skim secara unilateral atau tidak boleh berbuat demikian kerana Defendan Pertama mendakwa pembatalan Skim Penyusunan tersebut pembatalan memerlukan kelulusan 75% pemiutang Skim. [19] Mahkamah mencari dimana ada dinyatakan perkara ini dan sepanjang affidavit yang dikemukakan, Defendan Pertama tidak pernah merujuk secara jelas berhubung perkara ini. [20] Secara asasnya, Plaintif telah bergantung kepada Sijil Perakuan Keberhutangan (Debtor’s Statement) sebagaimana dieksibit “KAS- 20” bagi tuntutan mereka. [21] Mahkamah merujuk kepada kes CEMPAKA FINANCE BHD v. HO LAI YING & ANOR, FEDERAL COURT, PUTRAJAYA [2006] 3 CLJ 544 yang mana telah diputuskan: (i) whether a certificate of indebtedness issued in accordance with the express provisions of the contract which provide that the certificate is final and conclusive of the matters stated therein, is final and conclusive evidence of the amount in the absence of any manifest error on the certificate; S/N JhcKyIO2USpx6d8Doz0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 (ii) whether apart from producing a certificate of indebtedness pursuant to the contract which provided that the certificate was final and conclusive of the matters stated therein, the plaintiff/appellant had a further obligation to produce statements of account to prove the debt in an application for summary judgment. Held:(3) In the circumstances and given the authorities cited, the answer to the first question was in the affirmative whereas the second question had to be answered in the negative. Having considered the questions in the context of the established facts, it was appropriate to allow this appeal with costs. (para 7) In the instant case, there is such a certificate of indebtedness under the hand of an authorised officer of the plaintiff bank. The judgment of Shankar J in MIMB v. G & C Securities (unreported) and the judgment of Bank Bumiputra Malaysia Bhd v. Doric Development Sdn Bhd [1988] 1 CLJ 361 (Rep); [1988] 1 CLJ 311; [1988] 1 MLJ 462, 463 provided authority for the proposition that such a certificate is indeed binding unless there is manifest error. The certificate of indebtedness, exh. P3, issued in accordance with cls. 27 and 7.03 aforesaid, is lucid enough. There is nothing to indicate or suggest any manifest error on the face of the said certificate nor is any fraud shown. S/N JhcKyIO2USpx6d8Doz0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 [22] Sijil Perakuan Keberhutangan tidak dicabar. Defendan Pertama dan Defendan kedua pula telah secara tidak langsung mengakui tuntutan atau tunggakan ini apabila memasukkan satu perintah melalui perintah Mahkamah bagi satu Skim Penyusunan antara pemiutang-pemiutang mereka. [23] Mahkamah merujuk kepada kes VITHAL KUMAR JAYARAMAN v. AZMAN MD NOR, COURT OF APPEAL, PUTRAJAYA [2010] 3 CLJ 332 yang memutuskan: [30] With the admissions (based on the three documents) the court is satisfied the 1st defendant has no defence to the action and the plaintiff is able to obtain judgment under O. 27 r. 3, RHC 1980. The admissions alone manage to fulfil the evidential requirements for the plaintiff to establish his claim against the 1st defendant. Thus, judgment may be given without having to wait for the determination of any other question between the parties. Is not necessary for the action to go for full trial. All the relevant issues to establish the plaintiff's claim against the 1st defendant have sufficiently been proved by the said admissions, to enable the plaintiff to obtain judgment as claimed. Therefore, there is no question that the said admissions are inextricably intertwined with the issues at trial, as argued by the counsel for the 1st defendant. S/N JhcKyIO2USpx6d8Doz0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 [24] Mahkamah memdapati bahawa Skim Penyusunan ini adalah dimulakan oleh Defendan-Defendan/CRSB. Ini adalah inisatif mereka sendiri dan perintah yang diberikan Mahkamah adalah pada satu tempoh yang telah ditetapkan. Adalah tidak adil untuk meletakkan Plaintif atau mana-mana pemiutang Defendan- Defendan dalam satu keadaan terikat dengan apa-apa skim atau penyusunan yang tidak dapat dipatuhi atau dilaksanakan. [25] Mahkamah merujuk kepada klausa 5 “Explanatory Statement to Scheme Creditors” bertarikh 18/10/2018 yang memperuntukkan: “In the event that the PSOA is not completed within 12 months from the date of the CCM, the Scheme Creditors may revoke the approval given at the CCM and the Scheme Creditors shall be entitled to enforce their rights”. [26] Mahkamah sekali lagi menekankan bahawa dalam tindakan ini,tiada apa-apa perintah atau lanjutan masa lagi diberikan selepas tamat tempoh yang ditetapkan. Tambahan pula, pada akhirnya, Defendan Kedua telah mengusulkan untuk penggulungan syarikat secara sukarela. Ini menunjukkan bahawa Defendan Kedua sendiri sudah tidak mampu untuk melaksanakan Skim penyusunan yang mereka sendiri minta dan aturkan. S/N JhcKyIO2USpx6d8Doz0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 [27] Adakah penyelesaian di mana Plaintif telah menerima RM1,708,920.00 daripada skim penyelesaian tersebut adalah satu penghakiman muktamad (full and final settlement)? [28] Dalam tindakan ini, Mahkamah dapati Defendan Pertama tidak pernah mempertikaikan jumlah tunggakan atau tuntutan Plaintif. Mahkamah merujuk semula kepada Surat bertarikh 16/8/2019 (eksibit “KAS-15” dan “KAS-16”), Mahkamah percaya ia adalah jelas bahawa pelan penjualan perniagaan (Proposed Malaysia Sale) di bawah Skim Penyusunan tersebut hanya berjaya mendapatkan hasil dan membayar sebahagian daripada tuntutan Plaintif. [29] Masih terdapat baki tunggakan daripada jumlah tuntutan asal Plaintif dan melalui surat bertarikh 10/9/2020, CRSB telah memohon bahawa baki pembayaran bagi Proposed Malaysia Sale dibayar secara berperingkat dan tempoh dilanjutkan sehingga 31/3/2021. [30] Sehingga tarikh tersebut, baki terhutang masih belum dilangsaikan. Memandangkan writ saman ini difailkan lebih dari dari 24 bulan dari tarikh lanjutan dan baki masih terakru, Mahkamah percaya Plaintif berhak menuntut baki tertunggal dan berhak memilih pada awanya untuk membatalkan skim penyusunan yang tidak dapat dimuktamadkan. S/N JhcKyIO2USpx6d8Doz0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 [31] Dalam keadaan ini, Mahkamah membuat dapatan bahawa jumlah penyelesaian yang telah dibuat oleh Defendan kepada Plaintif sebelum ini bukan satu penghakiman yang muktamad. [32] Mahkamah merujuk kepada eksibit “KAS-15” di mana diakhir surat Chaswood kepada Plaintif ada dinyatakan “…For the purposes of the completion of the Porposed Malaysia Sale, we would require your formal written agreement to the Proposed Malaysia Sale and that and amount of RM1,708,918.00 from the consideration will be accepted as the full and final settlement …” [33] Plaintif menjawab melalui surat di eksibit “KAS-16” seperti berikut “…the bank is agreeable to the Proposed Malaysia Sale subject to the terms and conditions as stated in the Explanatory statement dated 18/10/2018 of the Proposed SOA.” [34] Oleh demikian, Mahkamah dapati bahawa asas skim ini adalah apa yang dinyatakann pada 18/10/2018 tertakluk kepada terma-terma dan syarat-syarat yang terkandung di dalamnya. [35] Mahkamah sekali lagi menekankan bahawa isu-isu yang dibangkitkan oleh Defendan Pertama adalah telah dijawab melalui eksibit yang dikemukakan. Isu berbangkit juga bukan lagi isu untuk dibicarakan dengan memanggil saksi-saksi memandangkan jumlah terhutang tidak dipertikaikan, satu skim penyusunan telah dibuat, S/N JhcKyIO2USpx6d8Doz0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 skim tersebut telah tamat tempoh dan Defendan Pertama akui sendiri skim itu gagal dilaksanakan dalam tempoh yang diperuntukkan. [36] Isu samada keadaan ekonomi semasa atau pendemik Covid-19 bukanlah satu isu untuk dibicarakan. Isu lain yang dibangkitkan oleh Defendan Pertama dalam hujahan bertulis mereka adalah bahawa “whether any repudiatory breach subsists within the SOA and/or the conducts of D1” juga telah dijawab sendiri dari affidavit-afidavit yang dikemukakan. [37] Dalam kes HSBC BANK MALAYSIA BERHAD V PEGGY FOO ANOR JUDY FOO @ JEE NGOR [2009] MLJU 1280, Pesuruhjaya Kehakiman Mahkamah Tinggi Kamardin Bin Hashim dalam tersebut telah memutuskan bahawa:- “…Defendan-Defendan telah gagal untuk membangkitkan sebarang isu bona fide yang boleh dibicarakan samada dari segi fakta mahupun undang-undang. Defendan-Defendan juga telah gagal menunjukkan kepada Mahkamah ini bahawa ada alasan-alasan yang lain mewajarkan satu bicara penuh diadakan bagi tuntutan Plaintif disini. Jelas daripada afidavit-afidavit yang diikrarkan oleh deponan yang sama bagi Plaintif bahawa satu prima facie kes telah dibuktikan. Defendan-Defendan cuba meletakkan kesalahan S/N JhcKyIO2USpx6d8Doz0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 kepada pihak ketiga yang tidak menjadi priviti kepada perjanjian antara mereka dengan Plaintif adalah tidak berasas dan tidak menjadikannya satu isu untuk dibicarakan. Lain-lain isu yang cuba ditunjukkan oleh Defendan-Defendan dalam pembelaan dan hujahan mereka adalah merupakan isu-isu yang remeh dan 'afterthought' hanya bertujuan untuk melengahkan tuntutan Plaintif terhadap mereka…” [38] Dalam kes ICM TRADING SDN BHD V PERNIAGAAN AZMAN BERSAUDARA [2006] 7 MLJ 459 pula, Mahkamah telah memutuskan bahawa:- “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 party in an 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 not triable.” [39] Oleh demikian, Mahkamah percaya bahawa kes ini adalah satu kes yang sesuai untuk direkodkan satu penghakiman terus. Mahkamah membenarkan Lampiran 23 permohonan Plaintif untuk merekodkan Penghakiman Terus terhadap Defendan Pertama dengan kos S/N JhcKyIO2USpx6d8Doz0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 ditanggung oleh pihak Defendan Pertama. Kos ditetapkan RM2,000.00. Sekian untuk pertimbangan YAH. Disediakan oleh: …Sazlina Safie... Sazlina Bt Safie Hakim Sesyen, Mahkamah Sesyen 3 Sivil, Mahkamah Sesyen Petaling Jaya, Selangor. Tarikh :17/11/2023 PEGUAMCARA PLAINTIF: PN. NADIAH AIMAN BINTI NAZRI [TETUAN LEE & KOH] PEGUAMCARA DEFENDAN: EN. LIM LI HUANG [TETUAN CHELLAM WONG] S/N JhcKyIO2USpx6d8Doz0w **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

BA-45-28-09/2020

PENDAKWA RAYA Pendakwa Raya [Pendakwa Raya] TERTUDUH MOHAMMAD ASYRAAF BIN HASHIM

Pengetahuan jenis dadah- dadah berbahaya atau tembakau-fakta pendakwaan yang berbeza pada tahap kes pendakwaan-pembelaan yang konsisten-jika keraguan berjaya ditimbulkan.

17/11/2023

YA Puan Nurulhuda Nur'aini Binti Mohamad Nor

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=f9f5434d-c6e9-42aa-8234-cb608d4972cc&Inline=true

1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN PERBICARAAN JENAYAH NO: BA-45A-50-08/2020 PENDAKWA RAYA … PENDAKWAAN DAN 1. MOHAMMAD ASYRAAF BIN HASHIM & 2. MUHAMMAD ALIFF AFIQQI BIN RAZALI PERBICARAAN JENAYAH NO: BA-45-27-09/2020 PENDAKWA RAYA … PENDAKWAAN DAN MUHAMMAD ALIFF AFIQQI BIN RAZALI …TERTUDUH PERBICARAAN JENAYAH NO: BA-45-28-09/2020 PENDAKWA RAYA … PENDAKWAAN DAN MOHAMMAD ASYRAAF BIN HASHIM … ALASAN PENGHAKIMAN 17/11/2023 12:22:42 BA-45-28-09/2020 Kand. 13 S/N TUP1enGqkKCNMtgjUlyzA **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Pengenalan [1] Tertuduh pertama adalah seorang pelajar Kolej Universiti Islam Antarabangsa (KUIS) manakala tertuduh kedua yang bukan pelajar KUIS, menumpang bilik tertuduh pertama pada hari tangkapan. Kedua-dua tertuduh menghadapi pertuduhan dengan niat bersama mengedar dadah dan pertuduhan memiliki dadah. Masing-masing turut menghadapi pertuduhan memiliki dadah yang dipertuduhkan secara berasingan. [2] Pertuduhan terhadap kedua-dua tertuduh adalah seperti berikut: BA-45A-50-08/2020 pertuduhan mengedar dadah terhadap kedua- dua OKT Bahawa kamu bersama-sama pada 10 Februari 2020 jam lebih kurang antara 11 hingga 12 malam bertempat di Bilik P1-1004-B, Tingkat 10, Blok P1, di asrama Kolej Universiti Islam Antarabangsa Selangor (KUIS) di dalam Daerah Hulu Langat di dalam Negeri Selangor Darul Ehsan telah mengedar dadah berbahaya iaitu cannabis seberat 290.95 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B (1)(a) Akta Dadah Berbahaya 1952 dibaca dengan seksyen 34 Kanun Keseksaan dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama. BA-45A-50-08/2020 pertuduhan memiliki dadah terhadap kedua-dua OKT Bahawa kamu bersama-sama pada 10 Februari 2020 jam lebih kurang antara 11 hingga 12 malam bertempat di Bilik P1-1004-B, Tingkat 10, Blok P1, di asrama Kolej Universiti Islam Antarabangsa Selangor (KUIS) di dalam Daerah Hulu Langat di dalam Negeri Selangor Darul Ehsan telah S/N TUP1enGqkKCNMtgjUlyzA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 didapati dalam milikan kamu dadah berbahaya iaitu cannabis seberat 0.77 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 6 Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 6 Akta yang sama dibaca dengan seksyen 34 Kanun Keseksaan. BA-45-27-09/2020 pertuduhan memiliki dadah terhadap OKT2 Bahawa kamu pada 10 Februari 2020 jam lebih kurang antara 11 hingga 12 malam bertempat di Bilik P1-1004-B, Tingkat 10, Blok P1, di asrama Kolej Universiti Islam Antarabangsa Selangor (KUIS) di dalam Daerah Hulu Langat di dalam Negeri Selangor Darul Ehsan telah didapati dalam milikan kamu dadah berbahaya iaitu cannabis seberat 12.35gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 6 Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 6 Akta yang sama. BA-45-28-09/2020 pertuduhan memiliki dadah terhadap OKT1 Bahawa kamu pada 10 Februari 2020 jam lebih kurang antara 11 hingga 12 malam bertempat di Bilik P1-1004-B, Tingkat 10, Blok P1, di asrama Kolej Universiti Islam Antarabangsa Selangor (KUIS) di dalam Daerah Hulu Langat di dalam Negeri Selangor Darul Ehsan telah didapati dalam milikan kamu dadah berbahaya iaitu cannabis seberat 0.86gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 6 Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 6 Akta yang sama. S/N TUP1enGqkKCNMtgjUlyzA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 [3] Bagi pertuduhan pertama, dadah ditemui dalam tin berwarna emas CHOCO BEAR yang dibaling keluar oleh OKT2 dari tingkap bilik asrama OKT1 ketika pemeriksaan premis dilakukan oleh warden/felo yang terdiri di antaranya SP3 (Ustaz Asri) dan SP6 (ustaz Hafiz). Bagi pertuduhan kedua memiliki dadah oleh kedua-dua OKT, dadah ditemui di atas sekeping kertas terbuka di atas deretan 3 meja yang mengadap dinding, terletak berhampiran tingkap di mana tin berwarna emas dibaling (lihat rajah kasar P14A). [4] Semasa rondaan oleh pasukan warden KUIS dibuat dan pasukan warden memasuki asrama OKT1 di aras 10 parcel 1 unit 1004-B, pintu bilik yang dibuka dari dalam oleh salah seorang daripada OKT tersebut. Asrama ini mempunyai 3 bilik dan warden KUIS telah masuk ke bilik no.2 setelah dibuka. Bilik ini mempunyai 2 katil single dan satu katil double decker serta 4 meja dan 4 kerusi untuk belajar. Bilangan pelajar yang mendiami bilik ini walau bagaimanapun tidak dapat dipastikan oleh mana- mana ahli warden SP3 mahupun SP6. [5] Walau bagaimanapun, menurut SP8 pelajar yang juga mendiami bilik ini, bilik ini hanya didiami oleh dia dan OKT1 sahaja. Jawapan SP8 berubah semasa soalbalas apabila SP8 bersetuju bahawa bilik 2 ini turut diduduki oleh beberapa sahabat OKT1 sama ada berupa pelajar KUIS ataupun dari luar. SP8 sendiri menumpang bilik sahabatnya di parcel 3 KUIS kerana sahabatnya mengikuti kursus yang sama. [6] Pada hari rondaan, semasa masuk ke bilik, SP6 nampak kedua-dua OKT berada di kerusi mengadap deretan meja belajar. Menurut SP3, S/N TUP1enGqkKCNMtgjUlyzA **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 OKT1 berada di meja berdepan dengan laptop. SP6 nampak bungkusan atas meja atas kertas putih berupa seperti serbuk yang telah hancur seperti tembakau. SP6 juga nampak satu tin biskut segi empat berwarna emas berada di bawah meja di tengah-tengah kaki meja. Apabila ditanya apa dalam tin, OKT2 tiba-tiba mengambil tin tersebut dan mencampak tin berwarna emas ini keluar melalui tingkap. [7] SP6 melihat melalui tingkap bilik dan nampak tin tersebut jatuh di aras 6. SP6 meminta rakan wardennya untuk memantau kedua-dua OKT manakala SP6 turun ke aras 6 untuk melihat tin tersebut. Tin tersebut dapat dilihat jatuh di kawasan kosong tiada pelajar dan setelah tin ditemui, SP6 telah membuat panggilan telefon kepada pihak polis untuk makluman dan tindakan mereka. [8] Setelah SP11 dari Balai Polis Bangi hadir, SP11 dan pasukan menuju ke bilik OKT di aras 10. Ketika SP11 memasuki bilik, SP11 telah mengarahkan warden/felo untuk kekal di luar bilik. Hasil pemeriksaan oleh SP11 menemui kertas putih dan daun-daun rokok atas meja. Setelah disoal mengenai apa-apa barang salah lain, kedua-dua OKT didapati mempunyai dalam milikan dan/atau kawalan mereka paket kecil disyaki megandungi dadah. [9] Hasil soal-siasat SP11, dadah yang menjadi subjek pertuduhan memiliki ke atas OKT2 dikeluarkan oleh OKT2 dari dalam poket sebelah kanan seluar yang dipakainya manakala dadah yang menjadi subjek pertuduhan memiliki ke atas OKT1 pula dibawa keluar oleh OKT1 dari dalam laci di bawah salah sebuah deretan 3 meja tersebut. S/N TUP1enGqkKCNMtgjUlyzA **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 [10] Salah seorang warden iaitu ustaz Asri SP3 telah memaklumkan kepada SP11 mengenai tin berwarna emas yang dicampak keluar oleh OKT2 melalui tingkap. SP11 telah arahkan Kpl Farhan SP12 untuk mencari tin tersebut yang ditemui Kpl Farhan berada bersama SP6 dalam pantauannya di aras 6. Carian ke aras 6 oleh SP12 ditemani oleh SP3 ustaz Asri sehingga bertemu SP6 Ustaz Hafiz yang berada berdekatan tin emas tersebut yang dilihat SP3 tidak bertutup. [11] Hasil pemeriksaan ke atas tin berwarna emas tersebut mengandungi beberapa ketulan mampat disyaki ganja. SP11 telah membuat laporan polis atas penemuan barang-barang rampasan ini Bangi Repot 397/2020 ditanda sebagai P18. [12] Barang-barang rampasan berupa barang salah ini dihantar ke Jabatan Kimia untuk analisa dan disahkan oleh ahli kimia SP5 ia adalah cannabis dengan berat sebagaimana pertuduhan. Isu yang ditimbulkan dalam kes pendakwaan [13] Isu yang dibangkitkan dalam pembelaan tertuduh ialah jika tin berwarna emas yang ditemui dan dipantau oleh SP6 di aras 6 adalah tin yang sama yang dibaling keluar oleh OKT2 berdasarkan atas isu deskripsi warna dan sama ada tin tersebut bertutup atau tidak semasa dicampak. Mahkamah berpendapat adalah tidak logik untuk disimpulkan sebagai suatu kebetulan terdapat satu tin lain yang mengandungi dadah ditemui S/N TUP1enGqkKCNMtgjUlyzA **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 di aras 6 dibiarkan tanpa pengawasan oleh sesiapa sehinggalah ditemui oleh SP6. [14] Mahkamah membuat dapatan bahawa tiada tin lain melainkan tin yang sama yang dicampak oleh OKT2 dan ditemui oleh SP6. Oleh itu, cadangan pembelaan melalui soal balas saksi-saksi pendakwaan mengenai penemuan yang dikatakan satu tin yang berbeza dari segi deskripsi warna kuning atau emas serta bertutup atau tidak, tidak membawa apa-apa keraguan yang munasabah bahawa terdapat satu tin lain mengandungi dadah berada di laluan kakilima aras 6 tersebut selain tin yang dibaling OKT2 dan tin yang sama ditemui SP6 lebih-lebih lagi deskripsi warna ‘kuning’ atau ‘emas’ hanyalah menjurus kepada persepsi warna. [15] Isu mengenai tin bertutup atau tidak pula telah dijelaskan oleh saksi pendakwaan SP3 bahawa tin ditemui tidak bertutup manakala tutupnya berdasarkan keterangan SP11 hanya diambil di bilik aras 10 semasa tin dibawa naik ke atas aras 10 oleh SP12 Kpl. Farhan. Oleh itu, isu sama ada ia tin yang sama yang dilihat oleh SP6 di aras 6 dan tin yang dibaling oleh OKT2 tidak menimbulkan apa-apa keraguan dari segi identity. [16] Isu yang berikutnya ialah mengenai isu identity barang kes dan pengetahuan OKT-OKT terhadap barang salah. Ini membawa kepada analisa keterangan lisan saksi pendakwaan sendiri dan pemeriksaan balas ke atas saksi-saksi pendakwaan yang menunjukkan pengendalian barang kes dan pengetahuan kedua-dua OKT terhadap bahan salah yang dirampas sama ada ia adalah ganja, satu dadah berbahaya atau ia adalah S/N TUP1enGqkKCNMtgjUlyzA **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 tembakau. Ini adalah penting kerana menurut SP3 Ustaz Asri, menyimpan tembakau dan merokok juga merupakan satu kesalahan di asrama. [17] Mahkamah dalam meneliti keterangan saksi-saksi pendakwaan mendapati seperti berikut: i. SP3 warden yang turut meronda bersama SP6 menyatakan terdapat serbuk tembakau di atas meja; ii. SP6 semasa melihat bahan atas kertas putih di atas meja menyatakan ia serbuk menyerupai tembakau; iii. SP11 dalam soal balas menyatakan tiba di aras 10 dengan SP3 (ustaz Asri) dan SP6 (ustaz Hafiz) berada dalam bilik 1004B tersebut dan ini bertentangan dengan versi SP3, SP6 dan pemeriksaan awal SP11 bahawa SP6 sedang memantau tin kuning di aras 6; iv. SP11 menyatakan bahan atas kertas putih di atas meja ialah daun- daun rokok malahan laporan polis P18 juga menyatakan terdapat serbuk tembakau di atas kertas putih di atas meja; v. Kedua-dua OKT dikatakan duduk di kerusi mengadap deretan meja di mana serbuk tembakau ini berada; vi. Borang bongkar P20 yang disediakan SP11 juga mengandungi catatan serbuk tembakau di atas kertas putih (ditanda sebagai M1); vii. Serbuk tembakau ini menurut borang bongkar (P20) adalah bertanda ‘M1’ dan mempunyai anggaran berat 0.3gram (ini menurut borang serah menyerah P22 di antara SP11 dengan IO SP13); viii. Borang bongkar P20 (bagi OKT1) dan P21 (bagi OKT2) tidak tepat kerana P20 turut menyenaraikan serbuk tembakau dan ketulan mampat dalam tin kuning sedangkan tin dibaling oleh OKT2; S/N TUP1enGqkKCNMtgjUlyzA **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 ix. Deskripsi barang rampasan ini di dalam P22 (serah-menyerah) melainkan ‘M1’, barang rampasan lain yang ditanda sebagai ‘M2’, ‘M3’ dan ‘M4’ dicatit sebagai ketulan; x. SP12 walau bagaimanapun tidak melihat perbuatan OKT mengeluarkan paket dari poket seluar atau laci dan tidak dapat mengecam paket-paket ini manakala tiada apa-apa keterangan dari SP3 (ustaz Asri) berhubung kejadian ini; xi. Serbuk ’M1’ dari atas meja ini kemudian dibungkus oleh IO SP13 ke dalam sampul bertanda ‘AN1’ setelah diserah oleh SP11 di balai dan dihantar ke Jabatan Kimia bersama barang rampasan lain disyaki dadah masing-masing di dalam sampul bertanda ‘AN2’, ‘AN3’ dan ‘AN4’; xii. Hasil pemeriksaan awal ahli kimia SP5 mendapati kandungan sampul ‘AN1’ dan ‘AN3’ ialah leraian manakala ‘AN2’ dan ‘AN4’ ialah ketulan dan ini berbeza dengan catitan di P22; xiii. Hasil Analisa ahli kimia mendapati leraian bahan tumbuhan ‘AN1’ adalah cannabis seberat 0.77gram yang berupa pertuduhan memiliki terhadap kedua-dua OKT. [18] SP13 pegawai penyiasat (IO) menyatakan bungkusan bertanda ‘M1’ ini selain bungkusan dan/atau paket lain telah dimasukkan ke dalam 4 sampul berasingan namun khususnya untuk ‘M1’ ke dalam sampul bertanda ‘AN1’. Pihak pembelaan mencabar rantaian pengendalian barang kes ini kerana SP12 Kpl Farhan telah menyatakan kesemua barang rampasan ini dimasukkan ke dalam tin CHOCO BEAR ketika di tempat kejadian dan penandaan hanya dibuat di balai. S/N TUP1enGqkKCNMtgjUlyzA **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 [19] Mahkamah mendapati tiada gambar diambil untuk menunjukkan barang rampasan serbuk tembakau ‘AN1’ ini manakala gambar-gambar lain (lihat eksibit P12(A-F) menunjukkan bentuk ketulan dan bukan leraian. Ini ditambah dengan borang serah menyerah P22 di antara RO SP11 dan IO SP13 tidak ditandatangani SP13 yang membangkitkan cadangan oleh pihak pembelaan bahawa barang kes yang dirampas bukan barang kes yang diserahkan kepada SP13. [20] Sebagai tambahan, borang Pol 31 semasa serahan dibuat ke Jabatan Kimia tidak dikemukakan untuk menunjukkan kandungan sampul-sampul yang diterima oleh ahli kimia SP5 adalah sama seperti yang diteliti oleh SP11(RO) dan SP13 (IO) meskipun SP5 menyatakan pemeriksaan yang dicerminkan di laporan kimia P16 adalah sama seperti di Pol 31. [21] Walau bagaimanapun, mengambil kira keseluruhan keterangan, Mahkamah ini berpuashati bahawa cadangan pihak pembelaan pada tahap ini hanyalah satu cadangan dan tiada apa-apa keraguan yang timbul di pihak Mahkamah untuk mencapai satu dapatan bahawa barang yang dirampas daripada OKT1 dan OKT2 adalah barang yang sama yang diserah oleh SP13 untuk analisa oleh ahli kimia SP5 (lihat: Ali Hossein Basher v PP [2015]1CLJ 918 [COA]). [22] Dari segi pengetahuan OKT1 dan 2 terhadap barang kes ini, meskipun keterangan berhubung tindakan atau perbuatan kedua-dua OKT mengeluarkan barang salah masing-masing daripada laci bawah meja dan dari poket seluar hanya datang daripada RO SP11 (yang mana S/N TUP1enGqkKCNMtgjUlyzA **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 ia dicabar oleh pihak pembelaan), namun ia tercatit dalam laporan polis P18, P20 dan P21 (senarai bongkar) dan ini menunjukkan OKT-OKT mengetahui barang salah ini adalah dadah berbahaya dan ia adalah dadah jenis cannabis sebagaimana hasil analisa ahli kimia SP5. [23] Dapatan ini selari dengan keputusan Mahkamah Persekutuan di dalam kes PP v. Reza Mohd Shah Ahmad Shah [2010] 1 CLJ 541 yang memutuskan seperti berikut: “[8] …The first aspect is regarding the type or extent of knowledge that is required for proof of possession… … [10] As regards the first aspect, learned counsel for the respondent submitted that this appeal by the Public Prosecutor revolved around the following "narrow question of legal interpretation" which he framed in his written submission: For a Court to find an accused guilty for possession of dangerous drugs ie, 'actual possession' as understood in criminal law without the aid of the statutory presumption under section 37(d) of 'deemed possession', must the prosecution prove beyond a reasonable doubt that the accused had knowledge of the nature of the dangerous drugs (in addition to having knowledge of the existence of the dangerous drugs)? [11] The question obviously arose from the learned trial judge's finding that with proof that the respondent had knowledge that there existed dangerous drugs in the plastic bag, the prosecution did not also have to prove that the respondent had knowledge of the "nature" of the drugs. Obviously, in framing the question, the learned trial judge was construed as saying that to prove possession it is not necessary to prove knowledge of the "nature" of the thing possessed. But it is clear to me, after considering as a whole all that the learned trial judge said on the question of knowledge, as I have set out, including what was said by him S/N TUP1enGqkKCNMtgjUlyzA **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 and by Yong Pung How CJ in the passage reproduced from Mohd Farid, that was not what the learned trial judge meant. What he meant was that with proof of knowledge that what was in the plastic bag were dangerous drugs, the prosecution did not also have to prove that the respondent knew what type of dangerous drugs they were or their name or exact qualities. That was what he meant by the "nature" that the prosecution did not have to prove knowledge of. He did not mean to say that the prosecution did not have to prove knowledge of the "nature" of the drugs as dangerous drugs. That he did find the prosecution had proved when he spoke of knowledge of the existence of dangerous drugs in the plastic bag. He meant that the respondent knew that there were dangerous drugs in the plastic bag or, in other words, that the respondent knew that what the plastic bag contained were dangerous drugs. That was what the learned trial judge meant when he said that the respondent "wanted to part possession with what constituted the offence" and that it was "a clear indication of his guilty mind". The respondent had a guilty mind because he knew that he had dangerous drugs in his possession. [12] To the learned trial judge, therefore, for the prosecution to prove that the respondent was in possession of cannabis the prosecution need only prove, as regards knowledge, that the respondent had knowledge that what he was carrying were dangerous drugs. The prosecution did not also have to prove that he knew that the dangerous drugs were cannabis. Therefore once knowledge that the thing carried was dangerous drugs was proved, possession of the particular drug, that is cannabis, was proved. That was why the learned trial judge, while saying that proof by inference "that the accused had knowledge of the existence of the dangerous drugs does not suggest that he knew that it was cannabis", nevertheless concluded "that the inferences drawn from the direct evidence are sufficient to show that the accused had possession of the cannabis". S/N TUP1enGqkKCNMtgjUlyzA **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 [13] I am sure that the learned trial judge was not unaware of the authorities, such as those that I will be mentioning later, that say that possession in criminal law requires knowledge of the nature of the thing possessed and that he was not disagreeing with those authorities. In Mohd Farid, after the passage reproduced in his judgment in the present case, he had said, at p. 421 H-I, in reference to Director of Public Prosecutions v. Wishart Brooks [1974] AC 862 and Neo Koon Cheo v. R [1959] 1 LNS 64, "Both these cases support the proposition that knowledge of the nature of the drugs possessed can be inferred from the circumstances of the case". He was speaking of proof by inference of knowledge of "the nature of the drugs possessed". I think it is a matter of his understanding of what is meant by "nature of the drugs possessed". When he said in the present case that the prosecution did not have to prove knowledge of the nature of the drugs he must have said it on a view of "nature" as meaning name or type or exact qualities. But if "nature" means nature as a dangerous drug, then, when he said that the accused had knowledge of the existence of the dangerous drugs, which I understand to mean that the accused knew that there were dangerous drugs in the plastic bag, the learned trial judge must be taken to be saying, consistently with the authorities, that the prosecution did have to prove, and did prove, knowledge of the nature of the dangerous drugs, but nature as dangerous drugs”. [24] Dengan itu, Mahkamah memutuskan pembelaan dipanggil kerana berpuas hati bahawa pihak pendakwaan telah berjaya membuktikan satu kes prima facie melalui keterangan langsung milikan dan pengetahuan kedua-dua OKT terhadap dadah yang berada dalam kawalan dan jagaan mereka menerusi tindakan mereka mengeluarkan dadah tersebut selain tindakan OKT2 membaling tin mengandungi dadah. Bagi pertuduhan mengedar pula, oleh kerana berat dadah yang terlibat melebihi berat minima 200gram cannabis, anggapan pengedaran di bawah seksyen 37(da) adalah terpakai terhadap kedua-dua tertuduh. S/N TUP1enGqkKCNMtgjUlyzA **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 Kes pembelaan [25] Pembelaan OKT1 ialah dia tidak melihat kejadian OKT2 membuang tin dari tingkap bilik kerana ketika itu OKT1 memandang ke arah pintu. OKT1 juga menafikan dia mengeluarkan dadah dari laci bawah meja di dalam kehadiran SP11. Menurut OKT1, semasa SP3 dan kumpulan warden masuk, OKT1 baru sahaja berniat untuk ke bilik air yang terletak di luar bilik namun dibatalkan dan pada ketika itu dia meneruskan menyiapkan tugas di laptopnya. [26] Manakala pembelaan OKT2 menimbulkan pembelaan yang sama dan selari dengan apa yang dibangkitkan semasa kes pendakwaan iaitu dia hendak menghisap rokok dan mengambil tembakau dari dalam tin apabila bilik tersebut dimasuki oleh warden. OKT2 telah bertindak mencampakkan tin ke luar kerana tahu menghisap rokok merupakan kesalahan di asrama KUIS. [27] OKT2 menafikan mengeluarkan paket dadah dari poket seluarnya sebaliknya menyatakan kesemua dadah ditemui dari dalam laci. OKT1 juga menafikan mengeluarkan dadah dari dalam laci. Dapatan Mahkamah [28] Versi penemuan dadah yang dibangkitkan di peringkat kes pembelaan adalah konsisten dengan apa yang dicadangkan pada saksi pendakwaan SP12 bahawa kesemua dadah dalam bilik ditemui di bawah laci. Versi bahawa OKT2 tidak ada mengeluarkan paket dari poket seluarnya kekal dalam kes pembelaan dan versi ini turut dicadangkan S/N TUP1enGqkKCNMtgjUlyzA **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 kepada SP12 yang meskipun tidak bersetuju dengan cadangan ini, namun menyatakan dia tidak nampak perbuatan OKT2 mengeluarkan paket ini dari poket seluar. [29] Begitu juga versi pembelaan bahawa bilik 2 ini turut diduduki oleh beberapa individu yang lain sama ada pelajar KUIS atau bukan pelajar turut dicadangkan dan dipersetujui oleh saksi pendakwaan sendiri iaitu SP8 yang mempunyai kunci bilik 1004B tersebut dan dengan sendiri menyatakan mempunyai akses ke bilik tersebut. Maka ia bukanlah satu pembelaan yang afterthought. Pihak pendakwaan tidak memanggil penghuni lain bilik 1004B ini untuk menafikan versi pembelaan bahawa kedua-dua OKT bukan sahaja mempunyai pengetahuan bahawa barang salah tersebut adalah dadah tetapi juga mempunyai milikan ke atasnya. [30] Pada tahap kes pendakwaan dan pembelaan, tertuduh-tertuduh bergantung kepada pembelaan yang konsisten iaitu dadah yang ada pada anggapan mereka adalah tembakau dan perbuatan membaling tin keluar dari tingkap bilik ialah kerana memiliki tembakau dan merokok adalah satu kesalahan di asrama KUIS. Malahan saksi-saksi pendakwaan sendiri menyatakan pada pandangan dan pemerhatian mereka apa yang terletak di atas kertas putih di atas meja adalah serbuk tembakau. [31] Atas beban yang hanya untuk menimbulkan keraguan yang munasabah atas dapatan milikan dan pengetahuan yang dicapai oleh Mahkamah semasa pembelaan dipanggil, maka versi pembelaan ini adalah munasabah dan berjaya menimbulkan keraguan di akhir kes pembelaan. Atas dapatan ini, Mahkamah melepaskan dan membebaskan S/N TUP1enGqkKCNMtgjUlyzA **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 kedua-dua tertuduh daripada pertuduhan mengedar bagi dadah di dalam tin dan pertuduhan memiliki bagi dadah di atas meja. [32] Bagi pertuduhan memiliki yang lain, tiada saksi-saksi pendakwaan lain yang melihat kejadian yang dikatakan oleh SP11 iaitu OKT masing- masing mengeluarkan paket dadah dari dalam poket dan dari laci. Pembelaan ini juga diutarakan oleh kedua-dua OKT semasa memberi keterangan bahawa mereka tidak ada mengeluarkan apa-apa paket dadah dari dalam poket atau laci. [33] Mahkamah ini juga berpendapat berdasarkan pemeriksaan balas atas keterangan SP11 (RO) yang diajukan pembelaan, SP11 bersetuju bahawa dia telah menyuruh OKT1 menandatangani borang bongkar kerana OKT1 telah mengaku membuang tin mengandungi dadah tersebut. Keterangan ini jelas bertentangan dengan keterangan saksi pendakwaan yang lain khususnya SP3 dan SP6 kerana tin tersebut telah dicampakkan oleh OKT2 dan bukan OKT1. [34] OKT1 di dalam kes pembelaan menyatakan telah menandatangani satu kertas tetapi tiada apa-apa penjelasan telah diberikan oleh SP11 mengenai butiran kertas yang ditandatanganinya. Tiada soal-balas oleh pihak pendakwaan untuk menafikan bagaimana tandatangan OKT1 boleh berada di P20 tersebut, oleh itu Mahkamah ini berpendapat bahawa borang bongkar ini tidak boleh digunakan untuk menunjukkan kebenaran fakta bahawa dadah dikeluarkan oleh OKT1 dari laci selain fakta bahawa tin telah dicampak keluar oleh OKT1 (lihat: Wong Swee Chin v. PP [1980] 1 LNS 138; [1981] 1 MLJ 212) S/N TUP1enGqkKCNMtgjUlyzA **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 [35] Dengan dapatan ini, apa yang tinggal yang boleh dikaitkan dengan mana-mana OKT1 dan 2 ialah dadah di atas kertas putih yang berdasarkan pengetahuan OKT2 ialah tembakau. Manakala OKT1 pula hanyalah berada dalam kedudukan berhampiran dengannya. Jikapun OKT1 mengetahui kedudukan dan kewujudan bahan salah ini, pada pengetahuan mereka ia hanyalah serbuk tembakau dan bukan satu jenis dadah berbahaya. [36] Berdasarkan keseluruhan kes pembelaan ini, Mahkamah berpendapat pihak pembelaan telah Berjaya menimbulkan keraguan yang munasabah di atas kes pendakwaan. Kedua-dua OKT dilepas dan dibebaskan daripada kesemua pertuduhan. Hakim MTJ3 Shah Alam Bertarikh:4hb Ogos 2023 Bagi pihak pendakwaan: TPR Shahrul Ekhsan bin Hasim, Pejabat Timbalan Pendakwa Raya Tingkat 4, Podium Utara, Bangunan SSAAS 40152 Shah Alam Selangor Darul Ehsan S/N TUP1enGqkKCNMtgjUlyzA **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 Bagi pihak OKT1 Tetuan Idris Zaidel & Partners Peguambela & Peguamcara, No. 27-4, Jalan USJ 9/5Q Subang Business Centre UEP, 47620 Subang Jaya, Selangor. Bagi pihak OKT2: Tetuan Anwar Raof & Co Peguambela & Peguamcara E-2-22, IOI Boulevard Jalan Kenara 5, Bandar Puchong Jaya, 47170 Puching, Selangor. S/N TUP1enGqkKCNMtgjUlyzA **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

AC-A53KJ-74-07/2020

PLAINTIF 1. ) NG YIK KHANG 2. ) Lum Wai Shan (Menuntut Melalui Liew Mei Theng - 820623105030 Sebagai Ibu Dan Wakil Litigasi) DEFENDAN 1. ) YANG JYE YNG 2. ) LEE WAI KEAN

Defendan-Defendan telah memfailkan rayuan terhadap keputusan yang diberikan pada 20/10/2023 melalui Notis Rayuan bertarikh 1/11/2023 (Lamp 109). Rayuan adalah terhadap isu liabiliti dan kuantum.Dalam keadaan sedemikian, saya mendapati Plaintif-Plaintif telah berjaya membuktikan kes atas imbangan kebarangkalian terhadap Defendan-Defendan.Selanjutnya, saya mendapati Defendan-Defendan bertanggungan terhadap Plaintif-Plaintif dalam kemalangan ini atas kadar 100%.

17/11/2023

Tuan Gan Peng Kun

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=67046883-bdb8-4f94-a004-3c6be13d6084&Inline=true

17/11/2023 15:27:28 AC-A53KJ-74-07/2020 Kand. 114 S/N g2gEZ7i9lEgBDxr4T1ghA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N g2gEZ7i9lEgBDxr4T1ghA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N g2gEZ7i9lEgBDxr4T1ghA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N g2gEZ7i9lEgBDxr4T1ghA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N g2gEZ7i9lEgBDxr4T1ghA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N g2gEZ7i9lEgBDxr4T1ghA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N g2gEZ7i9lEgBDxr4T1ghA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N g2gEZ7i9lEgBDxr4T1ghA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N g2gEZ7i9lEgBDxr4T1ghA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N g2gEZ7i9lEgBDxr4T1ghA **Note : Serial number will be used to verify the originality of this document via eFILING portal ll) Ac—A53m—7a—n7/2020 Kand. 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Tika 2.6.0 & Pytesseract-0.3.10

BA-45-27-09/2020

PENDAKWA RAYA Pendakwa Raya [Pendakwa Raya] TERTUDUH MUHAMMAD ALIFF AFIQQI BIN RAZALI

Pengetahuan jenis dadah- dadah berbahaya atau tembakau-fakta pendakwaan yang berbeza pada tahap kes pendakwaan-pembelaan yang konsisten-jika keraguan berjaya ditimbulkan.

17/11/2023

YA Puan Nurulhuda Nur'aini Binti Mohamad Nor

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=8752b656-f562-4306-9662-46011f4222e3&Inline=true

1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN PERBICARAAN JENAYAH NO: BA-45A-50-08/2020 PENDAKWA RAYA … PENDAKWAAN DAN 1. MOHAMMAD ASYRAAF BIN HASHIM & 2. MUHAMMAD ALIFF AFIQQI BIN RAZALI PERBICARAAN JENAYAH NO: BA-45-27-09/2020 PENDAKWA RAYA … PENDAKWAAN DAN MUHAMMAD ALIFF AFIQQI BIN RAZALI …TERTUDUH PERBICARAAN JENAYAH NO: BA-45-28-09/2020 PENDAKWA RAYA … PENDAKWAAN DAN MOHAMMAD ASYRAAF BIN HASHIM … ALASAN PENGHAKIMAN 17/11/2023 12:21:17 BA-45-27-09/2020 Kand. 11 S/N VrZSh2L1BkOWYkYBH0Ii4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Pengenalan [1] Tertuduh pertama adalah seorang pelajar Kolej Universiti Islam Antarabangsa (KUIS) manakala tertuduh kedua yang bukan pelajar KUIS, menumpang bilik tertuduh pertama pada hari tangkapan. Kedua-dua tertuduh menghadapi pertuduhan dengan niat bersama mengedar dadah dan pertuduhan memiliki dadah. Masing-masing turut menghadapi pertuduhan memiliki dadah yang dipertuduhkan secara berasingan. [2] Pertuduhan terhadap kedua-dua tertuduh adalah seperti berikut: BA-45A-50-08/2020 pertuduhan mengedar dadah terhadap kedua- dua OKT Bahawa kamu bersama-sama pada 10 Februari 2020 jam lebih kurang antara 11 hingga 12 malam bertempat di Bilik P1-1004-B, Tingkat 10, Blok P1, di asrama Kolej Universiti Islam Antarabangsa Selangor (KUIS) di dalam Daerah Hulu Langat di dalam Negeri Selangor Darul Ehsan telah mengedar dadah berbahaya iaitu cannabis seberat 290.95 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B (1)(a) Akta Dadah Berbahaya 1952 dibaca dengan seksyen 34 Kanun Keseksaan dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama. BA-45A-50-08/2020 pertuduhan memiliki dadah terhadap kedua-dua OKT Bahawa kamu bersama-sama pada 10 Februari 2020 jam lebih kurang antara 11 hingga 12 malam bertempat di Bilik P1-1004-B, Tingkat 10, Blok P1, di asrama Kolej Universiti Islam Antarabangsa Selangor (KUIS) di dalam Daerah Hulu Langat di dalam Negeri Selangor Darul Ehsan telah S/N VrZSh2L1BkOWYkYBH0Ii4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 didapati dalam milikan kamu dadah berbahaya iaitu cannabis seberat 0.77 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 6 Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 6 Akta yang sama dibaca dengan seksyen 34 Kanun Keseksaan. BA-45-27-09/2020 pertuduhan memiliki dadah terhadap OKT2 Bahawa kamu pada 10 Februari 2020 jam lebih kurang antara 11 hingga 12 malam bertempat di Bilik P1-1004-B, Tingkat 10, Blok P1, di asrama Kolej Universiti Islam Antarabangsa Selangor (KUIS) di dalam Daerah Hulu Langat di dalam Negeri Selangor Darul Ehsan telah didapati dalam milikan kamu dadah berbahaya iaitu cannabis seberat 12.35gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 6 Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 6 Akta yang sama. BA-45-28-09/2020 pertuduhan memiliki dadah terhadap OKT1 Bahawa kamu pada 10 Februari 2020 jam lebih kurang antara 11 hingga 12 malam bertempat di Bilik P1-1004-B, Tingkat 10, Blok P1, di asrama Kolej Universiti Islam Antarabangsa Selangor (KUIS) di dalam Daerah Hulu Langat di dalam Negeri Selangor Darul Ehsan telah didapati dalam milikan kamu dadah berbahaya iaitu cannabis seberat 0.86gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 6 Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 6 Akta yang sama. S/N VrZSh2L1BkOWYkYBH0Ii4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 [3] Bagi pertuduhan pertama, dadah ditemui dalam tin berwarna emas CHOCO BEAR yang dibaling keluar oleh OKT2 dari tingkap bilik asrama OKT1 ketika pemeriksaan premis dilakukan oleh warden/felo yang terdiri di antaranya SP3 (Ustaz Asri) dan SP6 (ustaz Hafiz). Bagi pertuduhan kedua memiliki dadah oleh kedua-dua OKT, dadah ditemui di atas sekeping kertas terbuka di atas deretan 3 meja yang mengadap dinding, terletak berhampiran tingkap di mana tin berwarna emas dibaling (lihat rajah kasar P14A). [4] Semasa rondaan oleh pasukan warden KUIS dibuat dan pasukan warden memasuki asrama OKT1 di aras 10 parcel 1 unit 1004-B, pintu bilik yang dibuka dari dalam oleh salah seorang daripada OKT tersebut. Asrama ini mempunyai 3 bilik dan warden KUIS telah masuk ke bilik no.2 setelah dibuka. Bilik ini mempunyai 2 katil single dan satu katil double decker serta 4 meja dan 4 kerusi untuk belajar. Bilangan pelajar yang mendiami bilik ini walau bagaimanapun tidak dapat dipastikan oleh mana- mana ahli warden SP3 mahupun SP6. [5] Walau bagaimanapun, menurut SP8 pelajar yang juga mendiami bilik ini, bilik ini hanya didiami oleh dia dan OKT1 sahaja. Jawapan SP8 berubah semasa soalbalas apabila SP8 bersetuju bahawa bilik 2 ini turut diduduki oleh beberapa sahabat OKT1 sama ada berupa pelajar KUIS ataupun dari luar. SP8 sendiri menumpang bilik sahabatnya di parcel 3 KUIS kerana sahabatnya mengikuti kursus yang sama. [6] Pada hari rondaan, semasa masuk ke bilik, SP6 nampak kedua-dua OKT berada di kerusi mengadap deretan meja belajar. Menurut SP3, S/N VrZSh2L1BkOWYkYBH0Ii4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 OKT1 berada di meja berdepan dengan laptop. SP6 nampak bungkusan atas meja atas kertas putih berupa seperti serbuk yang telah hancur seperti tembakau. SP6 juga nampak satu tin biskut segi empat berwarna emas berada di bawah meja di tengah-tengah kaki meja. Apabila ditanya apa dalam tin, OKT2 tiba-tiba mengambil tin tersebut dan mencampak tin berwarna emas ini keluar melalui tingkap. [7] SP6 melihat melalui tingkap bilik dan nampak tin tersebut jatuh di aras 6. SP6 meminta rakan wardennya untuk memantau kedua-dua OKT manakala SP6 turun ke aras 6 untuk melihat tin tersebut. Tin tersebut dapat dilihat jatuh di kawasan kosong tiada pelajar dan setelah tin ditemui, SP6 telah membuat panggilan telefon kepada pihak polis untuk makluman dan tindakan mereka. [8] Setelah SP11 dari Balai Polis Bangi hadir, SP11 dan pasukan menuju ke bilik OKT di aras 10. Ketika SP11 memasuki bilik, SP11 telah mengarahkan warden/felo untuk kekal di luar bilik. Hasil pemeriksaan oleh SP11 menemui kertas putih dan daun-daun rokok atas meja. Setelah disoal mengenai apa-apa barang salah lain, kedua-dua OKT didapati mempunyai dalam milikan dan/atau kawalan mereka paket kecil disyaki megandungi dadah. [9] Hasil soal-siasat SP11, dadah yang menjadi subjek pertuduhan memiliki ke atas OKT2 dikeluarkan oleh OKT2 dari dalam poket sebelah kanan seluar yang dipakainya manakala dadah yang menjadi subjek pertuduhan memiliki ke atas OKT1 pula dibawa keluar oleh OKT1 dari dalam laci di bawah salah sebuah deretan 3 meja tersebut. S/N VrZSh2L1BkOWYkYBH0Ii4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 [10] Salah seorang warden iaitu ustaz Asri SP3 telah memaklumkan kepada SP11 mengenai tin berwarna emas yang dicampak keluar oleh OKT2 melalui tingkap. SP11 telah arahkan Kpl Farhan SP12 untuk mencari tin tersebut yang ditemui Kpl Farhan berada bersama SP6 dalam pantauannya di aras 6. Carian ke aras 6 oleh SP12 ditemani oleh SP3 ustaz Asri sehingga bertemu SP6 Ustaz Hafiz yang berada berdekatan tin emas tersebut yang dilihat SP3 tidak bertutup. [11] Hasil pemeriksaan ke atas tin berwarna emas tersebut mengandungi beberapa ketulan mampat disyaki ganja. SP11 telah membuat laporan polis atas penemuan barang-barang rampasan ini Bangi Repot 397/2020 ditanda sebagai P18. [12] Barang-barang rampasan berupa barang salah ini dihantar ke Jabatan Kimia untuk analisa dan disahkan oleh ahli kimia SP5 ia adalah cannabis dengan berat sebagaimana pertuduhan. Isu yang ditimbulkan dalam kes pendakwaan [13] Isu yang dibangkitkan dalam pembelaan tertuduh ialah jika tin berwarna emas yang ditemui dan dipantau oleh SP6 di aras 6 adalah tin yang sama yang dibaling keluar oleh OKT2 berdasarkan atas isu deskripsi warna dan sama ada tin tersebut bertutup atau tidak semasa dicampak. Mahkamah berpendapat adalah tidak logik untuk disimpulkan sebagai suatu kebetulan terdapat satu tin lain yang mengandungi dadah ditemui S/N VrZSh2L1BkOWYkYBH0Ii4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 di aras 6 dibiarkan tanpa pengawasan oleh sesiapa sehinggalah ditemui oleh SP6. [14] Mahkamah membuat dapatan bahawa tiada tin lain melainkan tin yang sama yang dicampak oleh OKT2 dan ditemui oleh SP6. Oleh itu, cadangan pembelaan melalui soal balas saksi-saksi pendakwaan mengenai penemuan yang dikatakan satu tin yang berbeza dari segi deskripsi warna kuning atau emas serta bertutup atau tidak, tidak membawa apa-apa keraguan yang munasabah bahawa terdapat satu tin lain mengandungi dadah berada di laluan kakilima aras 6 tersebut selain tin yang dibaling OKT2 dan tin yang sama ditemui SP6 lebih-lebih lagi deskripsi warna ‘kuning’ atau ‘emas’ hanyalah menjurus kepada persepsi warna. [15] Isu mengenai tin bertutup atau tidak pula telah dijelaskan oleh saksi pendakwaan SP3 bahawa tin ditemui tidak bertutup manakala tutupnya berdasarkan keterangan SP11 hanya diambil di bilik aras 10 semasa tin dibawa naik ke atas aras 10 oleh SP12 Kpl. Farhan. Oleh itu, isu sama ada ia tin yang sama yang dilihat oleh SP6 di aras 6 dan tin yang dibaling oleh OKT2 tidak menimbulkan apa-apa keraguan dari segi identity. [16] Isu yang berikutnya ialah mengenai isu identity barang kes dan pengetahuan OKT-OKT terhadap barang salah. Ini membawa kepada analisa keterangan lisan saksi pendakwaan sendiri dan pemeriksaan balas ke atas saksi-saksi pendakwaan yang menunjukkan pengendalian barang kes dan pengetahuan kedua-dua OKT terhadap bahan salah yang dirampas sama ada ia adalah ganja, satu dadah berbahaya atau ia adalah S/N VrZSh2L1BkOWYkYBH0Ii4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 tembakau. Ini adalah penting kerana menurut SP3 Ustaz Asri, menyimpan tembakau dan merokok juga merupakan satu kesalahan di asrama. [17] Mahkamah dalam meneliti keterangan saksi-saksi pendakwaan mendapati seperti berikut: i. SP3 warden yang turut meronda bersama SP6 menyatakan terdapat serbuk tembakau di atas meja; ii. SP6 semasa melihat bahan atas kertas putih di atas meja menyatakan ia serbuk menyerupai tembakau; iii. SP11 dalam soal balas menyatakan tiba di aras 10 dengan SP3 (ustaz Asri) dan SP6 (ustaz Hafiz) berada dalam bilik 1004B tersebut dan ini bertentangan dengan versi SP3, SP6 dan pemeriksaan awal SP11 bahawa SP6 sedang memantau tin kuning di aras 6; iv. SP11 menyatakan bahan atas kertas putih di atas meja ialah daun- daun rokok malahan laporan polis P18 juga menyatakan terdapat serbuk tembakau di atas kertas putih di atas meja; v. Kedua-dua OKT dikatakan duduk di kerusi mengadap deretan meja di mana serbuk tembakau ini berada; vi. Borang bongkar P20 yang disediakan SP11 juga mengandungi catatan serbuk tembakau di atas kertas putih (ditanda sebagai M1); vii. Serbuk tembakau ini menurut borang bongkar (P20) adalah bertanda ‘M1’ dan mempunyai anggaran berat 0.3gram (ini menurut borang serah menyerah P22 di antara SP11 dengan IO SP13); viii. Borang bongkar P20 (bagi OKT1) dan P21 (bagi OKT2) tidak tepat kerana P20 turut menyenaraikan serbuk tembakau dan ketulan mampat dalam tin kuning sedangkan tin dibaling oleh OKT2; S/N VrZSh2L1BkOWYkYBH0Ii4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 ix. Deskripsi barang rampasan ini di dalam P22 (serah-menyerah) melainkan ‘M1’, barang rampasan lain yang ditanda sebagai ‘M2’, ‘M3’ dan ‘M4’ dicatit sebagai ketulan; x. SP12 walau bagaimanapun tidak melihat perbuatan OKT mengeluarkan paket dari poket seluar atau laci dan tidak dapat mengecam paket-paket ini manakala tiada apa-apa keterangan dari SP3 (ustaz Asri) berhubung kejadian ini; xi. Serbuk ’M1’ dari atas meja ini kemudian dibungkus oleh IO SP13 ke dalam sampul bertanda ‘AN1’ setelah diserah oleh SP11 di balai dan dihantar ke Jabatan Kimia bersama barang rampasan lain disyaki dadah masing-masing di dalam sampul bertanda ‘AN2’, ‘AN3’ dan ‘AN4’; xii. Hasil pemeriksaan awal ahli kimia SP5 mendapati kandungan sampul ‘AN1’ dan ‘AN3’ ialah leraian manakala ‘AN2’ dan ‘AN4’ ialah ketulan dan ini berbeza dengan catitan di P22; xiii. Hasil Analisa ahli kimia mendapati leraian bahan tumbuhan ‘AN1’ adalah cannabis seberat 0.77gram yang berupa pertuduhan memiliki terhadap kedua-dua OKT. [18] SP13 pegawai penyiasat (IO) menyatakan bungkusan bertanda ‘M1’ ini selain bungkusan dan/atau paket lain telah dimasukkan ke dalam 4 sampul berasingan namun khususnya untuk ‘M1’ ke dalam sampul bertanda ‘AN1’. Pihak pembelaan mencabar rantaian pengendalian barang kes ini kerana SP12 Kpl Farhan telah menyatakan kesemua barang rampasan ini dimasukkan ke dalam tin CHOCO BEAR ketika di tempat kejadian dan penandaan hanya dibuat di balai. S/N VrZSh2L1BkOWYkYBH0Ii4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 [19] Mahkamah mendapati tiada gambar diambil untuk menunjukkan barang rampasan serbuk tembakau ‘AN1’ ini manakala gambar-gambar lain (lihat eksibit P12(A-F) menunjukkan bentuk ketulan dan bukan leraian. Ini ditambah dengan borang serah menyerah P22 di antara RO SP11 dan IO SP13 tidak ditandatangani SP13 yang membangkitkan cadangan oleh pihak pembelaan bahawa barang kes yang dirampas bukan barang kes yang diserahkan kepada SP13. [20] Sebagai tambahan, borang Pol 31 semasa serahan dibuat ke Jabatan Kimia tidak dikemukakan untuk menunjukkan kandungan sampul-sampul yang diterima oleh ahli kimia SP5 adalah sama seperti yang diteliti oleh SP11(RO) dan SP13 (IO) meskipun SP5 menyatakan pemeriksaan yang dicerminkan di laporan kimia P16 adalah sama seperti di Pol 31. [21] Walau bagaimanapun, mengambil kira keseluruhan keterangan, Mahkamah ini berpuashati bahawa cadangan pihak pembelaan pada tahap ini hanyalah satu cadangan dan tiada apa-apa keraguan yang timbul di pihak Mahkamah untuk mencapai satu dapatan bahawa barang yang dirampas daripada OKT1 dan OKT2 adalah barang yang sama yang diserah oleh SP13 untuk analisa oleh ahli kimia SP5 (lihat: Ali Hossein Basher v PP [2015]1CLJ 918 [COA]). [22] Dari segi pengetahuan OKT1 dan 2 terhadap barang kes ini, meskipun keterangan berhubung tindakan atau perbuatan kedua-dua OKT mengeluarkan barang salah masing-masing daripada laci bawah meja dan dari poket seluar hanya datang daripada RO SP11 (yang mana S/N VrZSh2L1BkOWYkYBH0Ii4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 ia dicabar oleh pihak pembelaan), namun ia tercatit dalam laporan polis P18, P20 dan P21 (senarai bongkar) dan ini menunjukkan OKT-OKT mengetahui barang salah ini adalah dadah berbahaya dan ia adalah dadah jenis cannabis sebagaimana hasil analisa ahli kimia SP5. [23] Dapatan ini selari dengan keputusan Mahkamah Persekutuan di dalam kes PP v. Reza Mohd Shah Ahmad Shah [2010] 1 CLJ 541 yang memutuskan seperti berikut: “[8] …The first aspect is regarding the type or extent of knowledge that is required for proof of possession… … [10] As regards the first aspect, learned counsel for the respondent submitted that this appeal by the Public Prosecutor revolved around the following "narrow question of legal interpretation" which he framed in his written submission: For a Court to find an accused guilty for possession of dangerous drugs ie, 'actual possession' as understood in criminal law without the aid of the statutory presumption under section 37(d) of 'deemed possession', must the prosecution prove beyond a reasonable doubt that the accused had knowledge of the nature of the dangerous drugs (in addition to having knowledge of the existence of the dangerous drugs)? [11] The question obviously arose from the learned trial judge's finding that with proof that the respondent had knowledge that there existed dangerous drugs in the plastic bag, the prosecution did not also have to prove that the respondent had knowledge of the "nature" of the drugs. Obviously, in framing the question, the learned trial judge was construed as saying that to prove possession it is not necessary to prove knowledge of the "nature" of the thing possessed. But it is clear to me, after considering as a whole all that the learned trial judge said on the question of knowledge, as I have set out, including what was said by him S/N VrZSh2L1BkOWYkYBH0Ii4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 and by Yong Pung How CJ in the passage reproduced from Mohd Farid, that was not what the learned trial judge meant. What he meant was that with proof of knowledge that what was in the plastic bag were dangerous drugs, the prosecution did not also have to prove that the respondent knew what type of dangerous drugs they were or their name or exact qualities. That was what he meant by the "nature" that the prosecution did not have to prove knowledge of. He did not mean to say that the prosecution did not have to prove knowledge of the "nature" of the drugs as dangerous drugs. That he did find the prosecution had proved when he spoke of knowledge of the existence of dangerous drugs in the plastic bag. He meant that the respondent knew that there were dangerous drugs in the plastic bag or, in other words, that the respondent knew that what the plastic bag contained were dangerous drugs. That was what the learned trial judge meant when he said that the respondent "wanted to part possession with what constituted the offence" and that it was "a clear indication of his guilty mind". The respondent had a guilty mind because he knew that he had dangerous drugs in his possession. [12] To the learned trial judge, therefore, for the prosecution to prove that the respondent was in possession of cannabis the prosecution need only prove, as regards knowledge, that the respondent had knowledge that what he was carrying were dangerous drugs. The prosecution did not also have to prove that he knew that the dangerous drugs were cannabis. Therefore once knowledge that the thing carried was dangerous drugs was proved, possession of the particular drug, that is cannabis, was proved. That was why the learned trial judge, while saying that proof by inference "that the accused had knowledge of the existence of the dangerous drugs does not suggest that he knew that it was cannabis", nevertheless concluded "that the inferences drawn from the direct evidence are sufficient to show that the accused had possession of the cannabis". S/N VrZSh2L1BkOWYkYBH0Ii4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 [13] I am sure that the learned trial judge was not unaware of the authorities, such as those that I will be mentioning later, that say that possession in criminal law requires knowledge of the nature of the thing possessed and that he was not disagreeing with those authorities. In Mohd Farid, after the passage reproduced in his judgment in the present case, he had said, at p. 421 H-I, in reference to Director of Public Prosecutions v. Wishart Brooks [1974] AC 862 and Neo Koon Cheo v. R [1959] 1 LNS 64, "Both these cases support the proposition that knowledge of the nature of the drugs possessed can be inferred from the circumstances of the case". He was speaking of proof by inference of knowledge of "the nature of the drugs possessed". I think it is a matter of his understanding of what is meant by "nature of the drugs possessed". When he said in the present case that the prosecution did not have to prove knowledge of the nature of the drugs he must have said it on a view of "nature" as meaning name or type or exact qualities. But if "nature" means nature as a dangerous drug, then, when he said that the accused had knowledge of the existence of the dangerous drugs, which I understand to mean that the accused knew that there were dangerous drugs in the plastic bag, the learned trial judge must be taken to be saying, consistently with the authorities, that the prosecution did have to prove, and did prove, knowledge of the nature of the dangerous drugs, but nature as dangerous drugs”. [24] Dengan itu, Mahkamah memutuskan pembelaan dipanggil kerana berpuas hati bahawa pihak pendakwaan telah berjaya membuktikan satu kes prima facie melalui keterangan langsung milikan dan pengetahuan kedua-dua OKT terhadap dadah yang berada dalam kawalan dan jagaan mereka menerusi tindakan mereka mengeluarkan dadah tersebut selain tindakan OKT2 membaling tin mengandungi dadah. Bagi pertuduhan mengedar pula, oleh kerana berat dadah yang terlibat melebihi berat minima 200gram cannabis, anggapan pengedaran di bawah seksyen 37(da) adalah terpakai terhadap kedua-dua tertuduh. S/N VrZSh2L1BkOWYkYBH0Ii4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 Kes pembelaan [25] Pembelaan OKT1 ialah dia tidak melihat kejadian OKT2 membuang tin dari tingkap bilik kerana ketika itu OKT1 memandang ke arah pintu. OKT1 juga menafikan dia mengeluarkan dadah dari laci bawah meja di dalam kehadiran SP11. Menurut OKT1, semasa SP3 dan kumpulan warden masuk, OKT1 baru sahaja berniat untuk ke bilik air yang terletak di luar bilik namun dibatalkan dan pada ketika itu dia meneruskan menyiapkan tugas di laptopnya. [26] Manakala pembelaan OKT2 menimbulkan pembelaan yang sama dan selari dengan apa yang dibangkitkan semasa kes pendakwaan iaitu dia hendak menghisap rokok dan mengambil tembakau dari dalam tin apabila bilik tersebut dimasuki oleh warden. OKT2 telah bertindak mencampakkan tin ke luar kerana tahu menghisap rokok merupakan kesalahan di asrama KUIS. [27] OKT2 menafikan mengeluarkan paket dadah dari poket seluarnya sebaliknya menyatakan kesemua dadah ditemui dari dalam laci. OKT1 juga menafikan mengeluarkan dadah dari dalam laci. Dapatan Mahkamah [28] Versi penemuan dadah yang dibangkitkan di peringkat kes pembelaan adalah konsisten dengan apa yang dicadangkan pada saksi pendakwaan SP12 bahawa kesemua dadah dalam bilik ditemui di bawah laci. Versi bahawa OKT2 tidak ada mengeluarkan paket dari poket seluarnya kekal dalam kes pembelaan dan versi ini turut dicadangkan S/N VrZSh2L1BkOWYkYBH0Ii4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 kepada SP12 yang meskipun tidak bersetuju dengan cadangan ini, namun menyatakan dia tidak nampak perbuatan OKT2 mengeluarkan paket ini dari poket seluar. [29] Begitu juga versi pembelaan bahawa bilik 2 ini turut diduduki oleh beberapa individu yang lain sama ada pelajar KUIS atau bukan pelajar turut dicadangkan dan dipersetujui oleh saksi pendakwaan sendiri iaitu SP8 yang mempunyai kunci bilik 1004B tersebut dan dengan sendiri menyatakan mempunyai akses ke bilik tersebut. Maka ia bukanlah satu pembelaan yang afterthought. Pihak pendakwaan tidak memanggil penghuni lain bilik 1004B ini untuk menafikan versi pembelaan bahawa kedua-dua OKT bukan sahaja mempunyai pengetahuan bahawa barang salah tersebut adalah dadah tetapi juga mempunyai milikan ke atasnya. [30] Pada tahap kes pendakwaan dan pembelaan, tertuduh-tertuduh bergantung kepada pembelaan yang konsisten iaitu dadah yang ada pada anggapan mereka adalah tembakau dan perbuatan membaling tin keluar dari tingkap bilik ialah kerana memiliki tembakau dan merokok adalah satu kesalahan di asrama KUIS. Malahan saksi-saksi pendakwaan sendiri menyatakan pada pandangan dan pemerhatian mereka apa yang terletak di atas kertas putih di atas meja adalah serbuk tembakau. [31] Atas beban yang hanya untuk menimbulkan keraguan yang munasabah atas dapatan milikan dan pengetahuan yang dicapai oleh Mahkamah semasa pembelaan dipanggil, maka versi pembelaan ini adalah munasabah dan berjaya menimbulkan keraguan di akhir kes pembelaan. Atas dapatan ini, Mahkamah melepaskan dan membebaskan S/N VrZSh2L1BkOWYkYBH0Ii4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 kedua-dua tertuduh daripada pertuduhan mengedar bagi dadah di dalam tin dan pertuduhan memiliki bagi dadah di atas meja. [32] Bagi pertuduhan memiliki yang lain, tiada saksi-saksi pendakwaan lain yang melihat kejadian yang dikatakan oleh SP11 iaitu OKT masing- masing mengeluarkan paket dadah dari dalam poket dan dari laci. Pembelaan ini juga diutarakan oleh kedua-dua OKT semasa memberi keterangan bahawa mereka tidak ada mengeluarkan apa-apa paket dadah dari dalam poket atau laci. [33] Mahkamah ini juga berpendapat berdasarkan pemeriksaan balas atas keterangan SP11 (RO) yang diajukan pembelaan, SP11 bersetuju bahawa dia telah menyuruh OKT1 menandatangani borang bongkar kerana OKT1 telah mengaku membuang tin mengandungi dadah tersebut. Keterangan ini jelas bertentangan dengan keterangan saksi pendakwaan yang lain khususnya SP3 dan SP6 kerana tin tersebut telah dicampakkan oleh OKT2 dan bukan OKT1. [34] OKT1 di dalam kes pembelaan menyatakan telah menandatangani satu kertas tetapi tiada apa-apa penjelasan telah diberikan oleh SP11 mengenai butiran kertas yang ditandatanganinya. Tiada soal-balas oleh pihak pendakwaan untuk menafikan bagaimana tandatangan OKT1 boleh berada di P20 tersebut, oleh itu Mahkamah ini berpendapat bahawa borang bongkar ini tidak boleh digunakan untuk menunjukkan kebenaran fakta bahawa dadah dikeluarkan oleh OKT1 dari laci selain fakta bahawa tin telah dicampak keluar oleh OKT1 (lihat: Wong Swee Chin v. PP [1980] 1 LNS 138; [1981] 1 MLJ 212) S/N VrZSh2L1BkOWYkYBH0Ii4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 [35] Dengan dapatan ini, apa yang tinggal yang boleh dikaitkan dengan mana-mana OKT1 dan 2 ialah dadah di atas kertas putih yang berdasarkan pengetahuan OKT2 ialah tembakau. Manakala OKT1 pula hanyalah berada dalam kedudukan berhampiran dengannya. Jikapun OKT1 mengetahui kedudukan dan kewujudan bahan salah ini, pada pengetahuan mereka ia hanyalah serbuk tembakau dan bukan satu jenis dadah berbahaya. [36] Berdasarkan keseluruhan kes pembelaan ini, Mahkamah berpendapat pihak pembelaan telah Berjaya menimbulkan keraguan yang munasabah di atas kes pendakwaan. Kedua-dua OKT dilepas dan dibebaskan daripada kesemua pertuduhan. Hakim MTJ3 Shah Alam Bertarikh:4hb Ogos 2023 Bagi pihak pendakwaan: TPR Shahrul Ekhsan bin Hasim, Pejabat Timbalan Pendakwa Raya Tingkat 4, Podium Utara, Bangunan SSAAS 40152 Shah Alam Selangor Darul Ehsan S/N VrZSh2L1BkOWYkYBH0Ii4w **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 Bagi pihak OKT1 Tetuan Idris Zaidel & Partners Peguambela & Peguamcara, No. 27-4, Jalan USJ 9/5Q Subang Business Centre UEP, 47620 Subang Jaya, Selangor. Bagi pihak OKT2: Tetuan Anwar Raof & Co Peguambela & Peguamcara E-2-22, IOI Boulevard Jalan Kenara 5, Bandar Puchong Jaya, 47170 Puching, Selangor. S/N VrZSh2L1BkOWYkYBH0Ii4w **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

BA-22NCC-151-12/2022

PLAINTIF Heo Joon Siong DEFENDAN 1. ) Yap Kong Yeaw 2. ) Dato Sri Ngu Tieng Ung

Civil Procedure: Service – Writ – Judgment – Rules of Court 2012, Order 10 rule 1 and Order 42 rule 13.Civil Procedure: Default Judgment – Regular and Irregular Default Judgments – Principles Governing Setting Aside – Application of ex debito justitiae rule – Delay in application to set aside default judgment – Rules of Court 2012, Order 13 rule 8, Order 19 rule 9 and Order 42 rule 13.

17/11/2023

YA Dr Choong Yeow Choy

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=5120214e-087b-4538-9b5f-03e354f1960a&Inline=true

1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA GUAMAN SIVIL NO. BA-22NCC-151-12/2022 ANTARA HEO JOON SIONG (NO. K/P: 670725-01-5991) … PLAINTIF DAN 1. YAP KONG YEW (NO. K/P: 760211-14-5173) 2. DATO’ SRI NGU TIENG UNG (NO. K/P: 670420-13-5765) … DEFENDAN-DEFENDAN JUDGMENT Introduction [1] Based on the version of events provided by the Plaintiff, he has provided a friendly loan of RM5,000,000.00 to the First Defendant. The Second Defendant stood as a guarantor for the said loan. When the First Defendant defaulted in the repayment of the loan, the Plaintiff initiated an action to recover the loan from both the First and Second Defendants. 17/11/2023 09:02:44 BA-22NCC-151-12/2022 Kand. 39 S/N TiEgUXsIOEWbXwPjVPGWCg **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 [2] The narrative by the Second Defendant is that the Plaintiff and the First Defendant had conspired to deceive him. [3] As for the First Defendant who is the principal debtor, he has remained passive in these entire proceedings. [4] Before the Second Defendant could mount a challenge to the above action by the Plaintiff against him, he is confronted with the task of having to set aside a judgment in default that the Plaintiff has obtained against both the First Defendant and him, on 15 March, 2023. [5] The concern of this Court at this juncture is in dealing with an application by the Second Defendant to set aside the default judgment that the Plaintiff has entered against him. The Issues for Determination [6] In dealing with the Second Defendant’s Notice of Application in Enclosure 13 to set aside the default judgment, the following issues will have to be resolved. [7] The first issue is whether the default judgment of 15 March, 2023 is an irregular or a regular judgment. [8] In the event that this Court finds that the said default judgment is irregular, the issue then is whether the ex debito justitiae rule applies. S/N TiEgUXsIOEWbXwPjVPGWCg **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 [9] If this Court were to conclude that the ex debito justitiae does not apply as a matter of cause to an irregular judgment, the issue that follows is whether the Second Defendant has defence on the merits. [10] Regardless of the finding of whether the default judgment was one that was irregular or regular, another issue for resolution is whether the Second Defendant should be barred from having the default judgment set aside on the ground of non-compliance with Order 42 rule 13 of the Rules of Court 2012. [11] In determining the above issues, the law and principles governing the service of documents, particularly the ones relating to the service of a Writ and a Default Judgment will take centre stage. Was the Default Judgment an Irregular or a Regular Default Judgment? [12] A default judgment will be deemed irregular if it can be demonstrated that a defendant had not been served with the originating process. Reference may be made to the case of Summit Company (M) Sdn Bhd v Nikko Products (M) Sdn Bhd [1985] 1 MLJ 68 to illustrate the serious consequence of such a failure on the part of a plaintiff to comply with the provisions of the rules of court pertaining to service of an originating process. [13] It was contended by the Second Defendant that the judgment in default in this case is irregular on the ground that service of the Writ and Statement of Claim was not in accordance with the provision in Order 10 rule 1 of the Rules of Court 2012. S/N TiEgUXsIOEWbXwPjVPGWCg **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 [14] The above submission requires this Court to carefully examine this rule. Order 10 rule 1 provides for three general modes of service (and not two modes as contended by the Second Defendant - the Second Defendant having quoted the unamended Order 10 rule 1 of the Rules of Court 2012), namely: • personal service; OR • prepaid AR registered post; OR • electronic communication. [15] In the present matter, the Plaintiff had utilized prepaid AR registered post as the mode for effecting service of the Writ and Statement of Claim on the Second Defendant. [16] The Second Defendant’s main contention is that he had never received the Writ and Statement of Claim. The Second Defendant had pointed out that the Plaintiff’s Affidavit of Service only exhibited the AR registered post receipt and not the acknowledged AR card. Hence, the Second Defendant adopted the position that the judgment in default in this case is an irregular judgment in default. [17] Based on the decision of the Federal Court in Goh Teng Whoo & Anor v Ample Objectives Sdn Bhd [2021] 3 AMR 881; [2021] 4 CLJ 348; [2021] 3 MLJ 159; [2021] 2 MLRA 682, this Court finds that the failure to exhibit the AR registered card containing an endorsement as to receipt by the Second Defendant himself or someone authorised to accept service of the same on his behalf rendered the judgment in default as irregular. S/N TiEgUXsIOEWbXwPjVPGWCg **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 Does the ex debito justitiae rule apply? [18] Having found that the default judgment in this case is one that is irregular, the consequential issue for determination is whether an irregular judgment ought to be set aside ex debito justitiae. [19] The Second Defendant argued that the answer should be in the affirmative and like many parties before this case, relied on Tuan Haji Ahmed Abdul Rahman v Arab Malaysian Finance Bhd [1996] 1 MLJ 30 (and this Court can confidently say that many other parties in the future will continue to do so). The rule as supposedly enunciated by the Federal Court in this case, what this Court considers as the “traditional approach”, can be traced to cases such as Anlaby v Praetorius (1888) 20 QBD 764, Nevill v Hanley Ltd (1988) 14 VLR 270, Pace v Neil (1893) 19 VLR 393, Daly v Silley [1960] VR 353 and White v Weston [1968] 2 QBD 647. [20] It must however be remembered that Edgar Joseph FCJ in Tuan Haji Ahmed Abdul Rahman did say in no uncertain terms that the ex debito justitiae rule is merely a “general rule”. His Lordship went on to provide two qualifications to the above rule, that is, an application to have an irregular judgment set aside may be denied if: 1. there is delay on the part of the party in making the application to have the judgment set aside; and 2. the party seeking to set aside the default judgment had taken fresh steps after becoming aware of the irregularity. The first qualification is an issue to be determined in this application. S/N TiEgUXsIOEWbXwPjVPGWCg **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 [21] On the ex debito justitiae rule, it can be deduced from cases such as Lai Yoke Ngan & Anor v Chin Teck Kwee [1997] 3 AMR 2458; [1997] 3 CLJ 305; [1997] 2 MLJ 565; [1997] 1 MLRA 284 and Lee Tain Tshung v Hong Leong Finance Bhd [2000] 3 AMR 2707; [2000] 4 CLJ 15; [2000] 3 MLJ 364; [2000] 1 MLRA 543 and those from many other jurisdictions that: 1. an irregular default judgment is not a nullity; and 2. an irregular default judgment may or may not be set aside. [22] Based on the above propositions of law, which this Courts considers as accurate and represent the correct statement of the law on this aspect of practice and procedure, the (continued) application of the ex debito justitiae rule is called into question. [23] In addition, there is nothing in Order 13 rule 8 and/or Order 19 rule 9 of the Rules of Court 2012 that provide for an application of the ex debito justitiae rule. These provisions do not in any way draw any distinction between an irregular and a regular default judgment. Defence on the Merits [24] Since this Court has concluded that an irregular default judgment need not be set aside as of right, it is justified for this Court ask whether the Second Defendant has defence on the merits or is his defence bound to fail. If the answer is the latter, then setting aside the default judgment, albeit one that is irregular, will serve no useful purpose: see ANZ Banking Group v Kostovski (Unreported, Supreme Court of Victoria, Chernov J, 2 S/N TiEgUXsIOEWbXwPjVPGWCg **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 July 1997) and Faircharm Investment Ltd v Citibank International plc (1998) EWCA Civ 171. [25] Based on the above rationale, this Court is of the view that the contentions by the Second Defendant that – • the Plaintiff never filed bankruptcy proceedings against the First Defendant; • the judgment in default is to oppress the Second Defendant; • it is impossible for the Second Defendant to have any personal knowledge of whether the loan of RM5,000,000.00 was disbursed to the First Defendant; • the Second Defendant is merely a guarantor and not the principal debtor under the Friendly Loan Agreement; and • the guarantee agreement was executed by the Second Defendant as a result of oral misrepresentations made by the First Defendant and/or fraud by the Plaintiff and/or the First Defendant who was a person the Second Defendant had trusted do not amount to defence on the merits. As admitted by the Second Defendant, he signed the Friendly Loan Agreement. [26] The Second Defendant did admit that the First Defendant is a close friend of his brother and that he had on occasions met the First Defendant. The Second Defendant also averred that he was informed by the First Defendant that the latter was in need of cash to sustain his business and that the Plaintiff was willing to provide him with a loan for RM5,000,000.00 provided a person of good financial standing and reputation was willing to act as a personal guarantor for the said loan. Believing that the First S/N TiEgUXsIOEWbXwPjVPGWCg **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 Defendant will be disposing his assets to repay the loan and as an interim measure to tie him over this difficult period, the Second Defendant further claimed that he met the First Defendant and that he signed the personal guarantee agreement without reading the terms of the of the agreement. [27] Once again, the above assertions by the Second Defendant do not in any way support his application to have the default judgment, albeit one that this Court has concluded as irregular, set aside. To set aside this default judgment will serve no useful purpose. Was there non-compliance with Order 42 rule 13? [28] The matter before this Court also raised the question of whether there has been a delay by the Second Defendant to have the default judgment set aside and if the answer is in the affirmative, is the delay fatal to the Second Defendant’s application to have the default judgment set aside. [29] The judgment in default in this matter was entered by the Plaintiff against the Second Defendant on 23 December, 2022. This application in Enclosure 13 was filed on 15 March, 2023. [30] This Court is henceforth required to consider the provision in Order 42 rule 13 of the Rules of Court 2012, which applies regardless of whether a default judgment is one that is irregular or regular. [31] Order 42 rule 13 of the Rules of Court 2012 expressly provides that a party intending to set aside any order or judgment “must make his application to the Court and serve it on the party who has obtained the S/N TiEgUXsIOEWbXwPjVPGWCg **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 order or judgment within thirty days after the receipt of the order or judgment by him”. [32] This provision was introduced into the Rules of Court 1980 with effect from August 1, 1993 and retained in the current Rules of Court 2012. [33] Prior to the introduction of Order 42 rule 13, no express time-frame for the setting aside of a default judgment can be found in the rules of court. However, the apex court in Fira Development Sdn Bhd v Goldwin Sdn Bhd [1989] 1 CLJ (Rep) 32; [1989] 1 MLJ 40; [1988] 1 MLRA 288 had made it clear that an application to set aside a default judgment should be made with reasonable promptitude. Although there was no explanatory note that accompanied the amendment that introduced Order 42 rule 13, it was quite obvious that the then new provision was intended to “override” the Supreme Court in Fira Development Sdn Bhd v Goldwin Sdn Bhd. [34] Returning to the mandatory directive in Order 42 rule 13 of the Rules of Court 2012, it bears reiteration that the 30-day period runs from the date “after the receipt of the order or judgment by him”. The key term is “receipt of the judgment” by the Second Defendant. [35] Once again, the Second Defendant has denied receipt or knowledge of the default judgment. [36] The Plaintiff produced an AR post receipt and certificate of posting receipt as proof of service of the sealed copy of the default judgment on the Second Defendant to show that the date of the receipt of the judgment was on 12 January, 2023. S/N TiEgUXsIOEWbXwPjVPGWCg **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 [37] A similar issue as to whether there was proper service of the default judgment had been raised. [38] As Order 42 rule 13 does not provide for personal or other mode or service, ordinary service would suffice. Hence, service of the default judgment on the Second Defendant was in accordance Order 62 rule 6(1)(a) of the Rules of Court 2012 and the Second Defendant has not provided any cogent reason(s) for the delay in the setting of the default judgment. [39] In view of the above findings, the application in Enclosure 13 is dismissed with costs of RM5,000. As a consequence of this Order, the application in Enclosure 17 is also dismissed with no order as to costs. Dated: 11, November, 2023 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam S/N TiEgUXsIOEWbXwPjVPGWCg **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 Counsel: Edmond Teh for the Plaintiff (Messrs. Shu Yin, Teh & Taing) SC Tay with Kevin Wong and Hashimah Abdul Halim for the Second Defendant (Messrs. Jason Teoh & Partners) S/N TiEgUXsIOEWbXwPjVPGWCg **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

BA-22NCvC-348-08/2023

PLAINTIF STAMFORD COLLEGE (MALACCA) SDN BHD DEFENDAN ASIA PACIFIC HIGHER LEARNING SDN BHD

CIVIL PROCEDURE: Arbitration clauses in the Agreement – Defendant’s Notice of Application for a Stay of Proceedings pending Arbitration − Whether there is a valid arbitration agreement in existence between the parties – whether the Court is indeed the proper forum possessed with the jurisdiction and power to investigate and conclude on the validity of the arbitration agreement − section 10 Arbitration Act 2005 and read together with Order 69 rule 10 and Order 92 rule 4 of the Rules of Court 2012− Macsteel International Far East Limited v. Lysaght Corrugated Pipe Sdn Bhd & Anor [2023] 1 LNS 1078.

17/11/2023

YA Puan Rozi Binti Bainon

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=868f9055-1938-4991-a7ad-c386466c4c39&Inline=true

1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA GUAMAN NO.: BA-22NCvC-348-08/2023 ANTARA STAMFORD COLLEGE (MALACCA) SDN BHHD (REGISTRATION NO.: 199301006177 [260914-A]) − PLAINTIF DAN ASIA PACIFIC HIGHER LEARNING SDN. BHD. (REGISTRATION NO.: 200001009601 [512207-D]) (registered owner and licensee of the higher learning institution Lincoln University College) − DEFENDAN GROUNDS OF JUDGMENT Introduction [1] The Plaintiff oppose the Defendant’s Notice of Application for a Stay of Proceedings pending Arbitration in Enclosure 5. [2] On 31-10-2023, this Court has dismissed Enclosure 5. The Defendant is unsatisfied with my decision and appeal to the Court of Appeal. 17/11/2023 13:43:57 BA-22NCvC-348-08/2023 Kand. 44 S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Enclosure 5 and affidavit in support [3] On 8-9-2023, the Defendant filed its notice of application to stay the whole action brought by the Plaintiff under section 10 Arbitration Act 2005 and read together with Order 69 rule 10 and Order 92 rule 4 of the Rules of Court 2012 and seeks the following orders [Note: Enclosure 5 is reproduced in its original language i.e. Bahasa Melayu]: (a) bahawa kesemua prosiding dalam tindakan Mahkamah Tinggi Malaya di Shah Alam Guaman No.: BA-22NCvC-348- 08/2023 antara Plaintif dan Defendan (selepas ini dirujuk sebagai “Guaman tersebut”) digantung secara sine die sementara Guaman tersebut dirujuk kepada timbangtara (“arbitration”). (b) bahawa kesemua prosiding selanjutnya dalam Guaman tersebut termasuklah pemfailan pembelaan dan, jika ada, tuntutan balas oleh Defendan digantung sehingga permohonan Defendan di sini didengar dan diputuskan secara muktamad oleh Mahkamah ini. (c) bahawa sekiranya prayer (a) di atas tidak dibenarkan, Defendan diberikan 14 hari dari tarikh perintah menolak permohonan Defendan di sini untuk memfailkan pembelaan dan, jika ada, tuntutan balas kepada Guaman tersebut. (d) bahawa kos permohonan ini dibayar oleh Plaintif kepada Defendan. S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 (e) relief, perintah, arahan, akaun dan/atau siasatan lain yang difikirkan adalah wajar dan patut diberikan oleh Mahkamah ini. [4] In Enclosure 5, the Defendant has stated the reasons to support its application as follows: (a) Defendan dan Plaintif pada 13-11-2020 telahpun memasuki suatu Memorandum Perjanjian untuk Plaintif mengendalikan dan menjalankan program pengajian Defendan yang merangkumi program Ijazah Sarjana Muda dalam Pengurusan Perniagaan, Ijazah Sarjana Muda Pengurusan Perniagaan dalam Perakaunan dan Ijazah Sarjana Muda dalam Sains untuk Pengurusan Hospitaliti untuk tempoh 3 tahun di premis Plaintif di negeri Melaka (selepas ini disebut “Perjanjian”). (b) Perjanjian tersebut adalah tertakluk dan/atau terikat kepada terma yang dipersetujui antara Plaintif dan Defendan. (c) kausa tindakan Plaintif dalam Guaman tersebut adalah berasal daripada Perjanjian tersebut. (d) Perjanjian tersebut memperuntukkan di bawah Fasal 36, inter alia bahawa, untuk sebarang persoalan, perselisihan dan/atau pertikaian yang timbul di antara Plaintif dan Defendan berkenaan dengan Perjanjian tersebut mesti dirujuk kepada timbangtara (“arbitration”). S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 (e) Fasal 36 (a) dan (b) dalam Perjanjian tersebut menyatakan – • Fasal 36 (a): Any dispute under this Agreement between the parties to this Agreement shall be settled by a single arbitrator mutually as agreed by the parties to this Agreement or under the courts of Malaysia.; dan • Fasal 36 (b): A dispute under this Agreement shall include any dispute of difference between the parties thereto regarding any matter or thing whatsoever herein contained, or the operation or construction thereof or any matter, or thing in any way connected with this Agreement, or the rights, duties or liabilities of either party under or in connection with this Agreement. (f) selanjutnya, Fasal 39(v) dalam Perjanjian tersebut menyatakan – “(v) For any dispute resolution, if the two parties disagree on any issue, they should actively communicate in a friendly negotiation manner with sincerity. If the two parties still cannot resolve the conflict through negotiation, both parties will appoint an arbitrator or mediator to help to resolve the problem as soon as possible, or unless the agreement contract cannot be resolved, such Agreement could be terminated with the consent of both Parties.”. S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 (g) persoalan, perselisihan dan/atau pertikaian di antara Plaintif dengan Defendan berkenaan dengan Perjanjian tersebut telah pun timbul (selepas ini disebut “Pertikaian tersebut”) di mana pihak-pihak sepatutnya merujuk pertikaian tersebut kepada timbangtara (“arbitration”). (h) akan tetapi, pihak Plaintif telah pun secara terus memfailkan Guaman tersebut tanpa membuat apa-apa rujukan Pertikaian tersebut kepada timbangtara (“arbitration”) sepertimana yang diperuntukkan dalam Perjanjian tersebut. (i) selain daripada pemfailan memorandum kehadiran bertarikh 7-9-2023 oleh Defendan, yang dilakukan untuk mengelakkan kemasukan penghakiman ingkar kehadiran terhadapnya, Defendan tidak mengambil apa-apa langkah dalam Guaman tersebut sebelum pemfailan permohonan ini. (j) tiada alasan ataupun sebab yang diberikan oleh Plaintif untuk menjelaskan dan/atau menjustifikasikan kegagalan, keengganan dan/atau kecuaiannya untuk merujuk Pertikaian tersebut kepada timbangtara (“arbitration”) dalam pengingkaran terma Perjanjian tersebut. (k) pada segala masa yang material, Defendan adalah bersedia dan berkemampuan untuk merujuk Pertikaian tersebut kepada timbangtara (“arbitration”) sepertimana yang diperuntukkan dalam Perjanjian tersebut. S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 Writ of summons and statement of claim [5] The Plaintiff and Defendant are both registered private higher educational institutions under the Ministry of Higher Education (MOHE), has intended to enter into a collaboration where the Plaintiff’s students would undertake the Defendant’s academic programmes to be taught at the Plaintiff’s Premise (Stamford College, Melaka). [6] Then, Plaintiff and Defendant has entered into the Memorandum of Agreement (after this is refer to as the “Agreement”) dated 13-11-2020. [7] The collaboration under the Agreement was for the provision of the following bachelor degree programmes: (a) Bachelor (Hons) in Business Administration (BBA); (b) Bachelor of Business Administration in Accounting; and (c) Bachelor of Science (Hons) in Hospitality Management (BHM). [8] The Plaintiff’s cause of action against the Defendant arose as a result of the losses and damages suffered by the Plaintiff following the Defendant’s breach of the Agreement and the subsequent action in unlawfully and/or unilaterally terminating the Agreement to the detriment of the Plaintiff and the students registered under the BBA and BHM Programmes listed in the Memorandum of Agreement. S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 [9] The Plaintiff’s students affected by the Defendant’s breach of the Agreement and the subsequent termination of the same constituted a total of 38 students which are comprised of 16 Graduated Students (No Certificates), 10 Graduated Students (No Endorsement) and 12 Ongoing Students (after this is refer to as the “Affected Students”). [10] After seeking clarification and demanding that the Defendant comply with the terms of the Agreement, and allow the registration of the Plaintiff’s Affected Students into the BBA and BHM Programmes by the Defendant, the Defendant terminated the Agreement on 26-9-2022. [11] The basis of the termination by the Defendant was as a result of the purported illegal and unlawful conduct of the Plaintiff in commencing the teaching of the BBA and BHM Programmes prior to receiving regulatory approvals and which caused material and substantial breaches and/or repudiation of the Agreement and a total failure of consideration on the part of the Plaintiff. [12] Notwithstanding that the Plaintiff had sought to implement the Agreement by seeking meetings and consistently corresponding with the Defendant, bearing in mind that the Affected Students were put in a limbo as a result and bringing MOHE as a neutral 3rd party to assist to resolve matters amicably, the Defendant remained defiant in their stand. Thus, the Plaintiff initiated this suit before this Court. S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 [13] The Plaintiff’s causes of action in this Court are as summarised below – (a) breach of the Agreement for the Defendant’s total failure in performing its obligations under the Memorandum of Agreement; (b) fraudulent misrepresentation by the Defendant that it would comply with the terms of the Agreement; and (c) negligent misstatements by the Defendant which led the Plaintiff to enter into the Agreement. [14] The prayers sought by the Plaintiff against the Defendant are – (a) a declaration that the Agreement is valid and subsisting and binding upon the Defendant and an order for Specific Performance of the Agreement by the Defendant including the following: (i) enrol all the Plaintiff’s Affected Students intended for the BBA and BHM Programmes into the Defendant; (ii) allow the 12 Ongoing Students of the BBA and BHM Programmes to continue their studies until completion; (iii) sign and endorse the examination papers and results of the 12 Ongoing Students of the BBA and BHM Programmes; S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 (iv) issue award certificates to the 12 Ongoing Students of the BBA and BHM Programmes upon completion of their studies; (v) sign and endorse the examination papers and results of the 10 Graduated Students (No Endorsement) of the BBA and BHM Programmes; (vi) issue award certificates to the 10 Graduated Students (No Endorsement); and (vii) issue award certificates to the 16 Graduated Students (No Certificates). (b) Special Damages against the Defendant for the sum of RM18,000.00 for the loss as a result of the unlawful termination and breach of the Agreement and RM4,380,000.00 for the pure economic loss as a result of the Defendant’s negligent misstatement; (c) General Damages for the breach of the Agreement, for the fraudulent misrepresentation and/or tort of deceit committed against the Plaintiff and for the negligent misstatement made by the Defendant; (d) Aggravated Damages and Exemplary damages against the Defendant for the Plaintiff’s loss and damage; and S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 (e) an order that the Defendant shall indemnify the Plaintiff against any and all actions initiated by third parties as a result of the Defendant’s action. Defence [15] The defence is yet to be filed and according to the Defendant – “selain daripada pemfailan memorandum kehadiran bertarikh 7- 9-2023 oleh Defendan, yang dilakukan untuk mengelakkan kemasukan penghakiman ingkar kehadiran terhadapnya, Defendan tidak mengambil apa-apa langkah dalam Guaman tersebut sebelum pemfailan permohonan ini.”. And, “pada segala masa yang material, Defendan adalah bersedia dan berkemampuan untuk merujuk Pertikaian tersebut kepada timbangtara (“arbitration”) sepertimana yang diperuntukkan dalam Perjanjian tersebut.”. And, the Defendant prays that “bahawa sekiranya prayer (a) di atas tidak dibenarkan, Defendan diberikan 14 hari dari tarikh perintah menolak permohonan Defendan di sini untuk memfailkan pembelaan dan, jika ada, tuntutan balas kepada Guaman tersebut.”. S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 [16] On 31-10-2023, this Court in dismissing Enclosure 5 has instructed the Defendant to file the defence and/or the counterclaim; the Plaintiff to file reply to defence and/or defence to counterclaim; and the Defendant to file reply to defence to counterclaim. The Plaintiff’s contentions in opposing Enclosure 5 [17] In order for this Court to determine the averment by the Defendant that “akan tetapi, pihak Plaintif telah pun secara terus memfailkan Guaman tersebut tanpa membuat apa-apa rujukan Pertikaian tersebut kepada timbangtara (“arbitration”) sepertimana yang diperuntukkan dalam Perjanjian tersebut.”, the affidavits and submissions filed by the Plaintiff must be perused. [18] The Plaintiff contends that Enclosure 5 is unmeritorious and must be dismissed. [19] The reasons are – (a) the construction of the arbitration agreement is vague, uncertain and unclear which requires the intervention of this Court. (b) the Defendant’s conduct and allegations have been consistent in rendering the arbitration agreement between the Parties to be inoperative and incapable of performance falling squarely within the exceptions under Section 10 of the Arbitration Act 2005. S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 (c) arbitration is not the appropriate forum for dispute resolution bearing that the subject matter of the dispute concerns a matter of public policy, which is the interest and welfare of the Affected Students, fulfilling the exception in Section 4(1) of the Arbitration Act 2005. [20] By reason of the matters as stated, the Plaintiff prays for the Defendant’s application in Enclosure 5 for a stay of proceedings pending arbitration be dismissed with costs. The issues: [21] The learned counsel for the Plaintiff has listed the issues to be determined before this Court, namely – (a) whether the construction of the arbitration agreement is vague, uncertain and unclear which requires the intervention of this Court? (b) whether the Defendant’s conduct and allegations have been consistent in rendering the arbitration agreement (if at all) between the Parties to be inoperative and incapable of performance falling squarely within the exceptions under Section 10 of the Arbitration Act 2005? S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 (c) whether arbitration is an appropriate forum for dispute resolution bearing that the subject matter of the dispute concerns a matter of public policy which is the interest and plight of the Affected Students, fulfilling the exception in Section 4(1) of the Arbitration Act 2005? [22] For issue (a) that the construction of the arbitration agreement is vague, uncertain and unclear which requires the intervention of this Court, the learned counsel for the Plaintiff submits as follows: “18. The relevant provisions in regards to an arbitration agreement is dealt with in sections 9 and 10 of the Arbitration Act 2005 [Act 646]. Section 9 of the Act defines an arbitration agreement wherein the operative expression is “an agreement by the parties to submit to arbitration all or certain disputes”. Accordingly, the form of an arbitration agreement may be in a clause in an agreement or in the form of a separate agreement. Section 10 of the Act mandates by the use of the word “shall”, in respect of a matter which is the subject matter of an arbitration agreement, for the court “to stay those proceedings and refer parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.”. S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 19. In this suit, Clause 36 (a) and (b) and Clause 39 (v) form part of the clauses in the Agreement 2 (collectively referred to as the ‘Arbitration Clauses’) as follows: “(36) Settlement of Disputes (a) Any dispute under this Agreement between the parties to this Agreement shall be settled by a single arbitrator mutually as agreed by the parties to this Agreement or under the courts in Malaysia. (b) A dispute under this Agreement shall include any dispute of difference between the parties thereto regarding any matter or thing whatsoever herein contained, or the operation or construction thereof or any matter, or thing in any way connected with this Agreement or the right, duties or liabilities of either party under or in connection with this Agreement. (39) Others (v) For any dispute resolution, if the two parties disagree on any issue, they should actively communicate in a friendly negotiation manner with sincerity. If the two parties still cannot resolve the conflict through negotiations, both parties will appoint an arbitrator or mediator to S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 help to resolve the problem as soon as possible, or unless the agreement contract cannot be resolved, such Agreement could be terminated with the consent of both parties.”. 20. The Plaintiff humbly submits that the construction of Clause 36 (a) gives a clear election to the Parties to choose the desired mode of dispute resolution either through – (a) A single arbitrator mutually agreed by the Parties; OR (b) Under the courts in Malaysia. 21. Clause 36 (a) is bare and ought to be read and interpreted disjunctively as it gives the liberty to the Parties to elect the method of dispute resolution. The word ‘OR’ ought to be given its natural meaning of ‘used to connect different possibilities’ according to the Cambridge Dictionary. 22. Thus, the Plaintiff is not compelled to arbitrate this dispute through arbitration nor is the Plaintiff barred to initiate legal proceedings before this Honourable Court. 23. The Plaintiff further submits that the Defendant’s interpretation of Clause 36 being the appointment of the arbitrator, that is through the courts in Malaysia as opposed to the Director of the Asian International Arbitration Centre (hereinafter referred to as ‘AIAC’), was never once conveyed, communicated or raised as the intention of the Parties nor is it reflected anywhere within the S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 Memorandum of Agreement as it should have been. Thus, the Plaintiff submits that the Defendant’s interpretation of Clause 36 is only self-serving and ought to be rejected. 24. Clause 36 which expressly falls under the heading of ‘Settlement of Disputes’ ought to take precedence over Clause 39 (v) of the Memorandum of Agreement as the latter is an isolated clause which falls under the separate heading of ‘Others’ as a result of poor drafting.”. [23] The case cited by the learned counsel for the Plaintiff is the High Court decision in the case of Malaysian Newsprint Industries Sdn Bhd V Bechtel International, Inc & Anor [2008] 5 MLJ 254 which emphasised the importance of the arbitration agreement being clear and certain. “[23] The parties are at liberty to decide on how to word the arbitration agreement provided it is clear and certain (Tan Kok Cheng & Sons Realty Co Sdn Bhd v Lim Ah Pat [t/a Juta Bena]). The agreement to arbitrate is just like a contract and it must be clear and certain. It will be construed to be void for uncertainty if its meaning is so ambiguous that it is incapable of being construed to give the agreement a certain degree of certainty. The courts will try to resolve the ambiguity that exists within the agreement, where possible, in order to support the parties in their intention to refer their dispute to arbitration. S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 … In sharp contrast would be the case of JF Finnegan Ltd v Sheffield City Council [1989] 43 Build LR 124; [1989] 5 Const LJ 54 where the court held that a clause in the contract that it was a matter for further discussion as to whether disputes under the contract were to be referred to arbitration was said to be too vague. [24] It must be borne in mind that no specific words or form are required to constitute an arbitration agreement. What is certain is this. That the agreement to refer disputes to arbitration is essential and the intention of the parties to arbitrate must be clear and equivocal… [25] Here, there is an arbitration clause in the TSA. The mode of appointment of the arbitrators is also set out. It is in accordance to the Rules of Conciliation and Arbitration of the International Chamber of Commerce. The venue where the arbitration should take place has been specified. It is in Kuala Lumpur, Malaysia and the language to be used in the arbitration has also been specified. It is to be conducted in the English language. It must be borne in mind that the venue specified in the arbitration clause has a direct impact on the curial law of the arbitration. Here, by stipulating Kuala Lumpur, Malaysia as the venue will subject the arbitral proceedings to the jurisdiction of the Malaysian High Court and its laws (see Halsbury’s Laws of Malaysia, Vol 13, para 220.006 at p 9; and see also by way of a comparison the case of Dermajaya Properties Sdn Bhd v Premium Properties Sdn Bhd & Anor [2002] 2 SLR 164. In fact, it is stipulated in the arbitration clause that “the judicial S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 acceptance of the award may be made to such court” which by necessary implication it refers to the Malaysian High Court. Incidentally, the laws of the country in accordance with which the TSA should be governed and construed is set out in Article XIV of the TSA itself. And that Article is worded in this way.”. [24] In distinguishing the above case precedent to the present case, the learned counsel for the Plaintiff submits that the TSA (Technical Services Agreement) in the precedent case contains a clear and certain arbitration agreement which expressly spells out the mode, procedure and jurisdiction in applying arbitration as a form of dispute resolution. In contrary to the present suit before this Court, the arbitration agreement is vague, uncertain and unclear as the Parties have distinct interpretation in regards to the Arbitration Clauses. [25] At this juncture, the learned counsel for the Plaintiff submits that – • the Defendant’s allegation of Clause 36 being consistent with subsections 13(2), (5) and (7) of the Act (Act 646) is inaccurate, misleading and false as it is pleaded as an afterthought. • the Plaintiff also strenuously denies the Defendant’s imputation of burden over the Plaintiff to produce the notice in referring this dispute to arbitration as the party commencing this suit. The Defendant’s averment is extremely misleading as nowhere in the Memorandum of Agreement nor the Act places the burden on a specific party to issue a notice in S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 referring the dispute to arbitration. This is consistent with section 23 of the Act. • thus, the Plaintiff’s position is that the Defendant is falsely interpreting the Arbitration Clauses according to their whims and fancies in an attempt to further delay and evade from taking responsibility over this ongoing dispute which has been long overdue. [26] For issue (b): the learned counsel for the Plaintiff submits that the Defendant’s conduct and allegations have been consistent in rendering the arbitration agreement between the parties to be inoperative and incapable of performance falling squarely within the exceptions under section 10 of the Act. [27] The learned counsel for the Plaintiff submits that in applying the provision in section 10 of the Act, this Court shall not grant a stay of proceedings if the agreement is proven to be null, void, inoperative and incapable of performance. [28] In the case of Press Metal Sarawak Sdn Bhd V Etiqa Takaful Bhd [2016] 9 CLJ 1 the Federal Court in the judgment of Ramly Ali FCJ which upheld the statutory principle as follows: “[33] What the court needs to consider in determining whether to grant a stay order under the present s. 10(1) (after the 2011 Amendment) is whether there is in existence a binding arbitration agreement or clause between the parties, which agreement is not null and void, inoperative or incapable of being perform.”. S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 The Federal Court further held at page 30-31 on the interpretation of an arbitration clause as follows: [91] In determining what is the dispute or difference the parties intended to submit to arbitration, the arbitration clause ought to be interpreted widely, based on its express terms and the intention of parties, taking into consideration the commercial reality and the purpose for which the contract or agreement was made. A proper approach to construction requires the court to give effect, so far as the language used by the parties in the arbitration clause will permit, to the commercial purpose of the arbitration clause. [93] It is trite law that the answer to the question as to whether a particular difference or dispute falls within an agreement to arbitrate depends primarily on the proper construction of that agreement in the circumstance of that particular case.”. [29] The Plaintiff reiterates that the Agreement was executed by the Parties, both being licensed private higher education institutions, for the purpose of a collaboration where the Plaintiff’s students would undertake the Defendant’s academic programmes to be taught at the Plaintiff’s premise. On the other hand, the Defendant has at all material times maintained its position that the Plaintiff’s conduct and/or programmes conducted under the Agreement is illegal, null and void and which caused ‘material and substantial breaches and/or repudiation of the Agreement. S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 [30] The series of correspondence including letters dated 26 September 2022, 28 October 2022 and 9 January 20233 reflect the Defendant’s intention in not recognising the existence of the Agreement due to the purported illegality and unlawful conduct committed by the Plaintiff (which is strictly denied). [31] Thus, the Plaintiff takes the position that the Defendant itself had caused the Agreement to be inoperative and incapable of being performed as the Defendant had selfishly and unilaterally opted to terminate the Agreement with no prior discussion with the Plaintiff through the invocation of Clause 31 of the Agreement purportedly due to the Plaintiff’s alleged illegal and unlawful conduct. [32] Further, the Defendant’s consistent neglect, lackadaisical conduct and disinterest in honouring the Agreement had made the choice of arbitration in Clause 36 to be inoperative and incapable of being performed. This has led to the devastating effect on the Plaintiff but primarily on the Affected Students, i.e., Non – issuance of the degree certificates to the Affected Students registered under the programmes in the Memorandum of Agreement; Interfering and abruptly halting the studies of the ongoing Affected Students prior to their completion; and Inability to proceed to the full implementation of the Agreement and reap the benefit from thereof. [33] It is the Plaintiff’s submission that filing Enclosure 5 before this Court are – (a) an afterthought as the Defendant’s allegation and conduct runs contrary to the Defendant’s alleged plea to resort to S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 arbitration consequently rendering the Agreement to be futile, inoperative and incapable of performance and thus, giving effect to the exception under section 10 of the Act. (b) baseless and filed in bad faith as it is a mere tactical manoeuvre instituted by the Defendant to circumvent Enclosure 1 filed timeously before this e Court. [34] On a deeper and closer perusal of Enclosure 5, the learned counsel for the Plaintiff highlights to this Court that the Defendant had not prayed for this Court to appoint an arbitrator, thus the Defendant had foreclosed any arguments on their part in reserving their right to arbitrate this matter. [35] The Plaintiff further submits that the interpretation of the arbitration agreement for its commercial reality and purpose would not warrant the Parties to resort to arbitration particularly due to the nature of the issues involved which is the collaboration for the Plaintiff’s Affected Students to undertake the programmes with the Defendant and for which the Defendant has never once referred to the Affected Students’ predicament and the effect of the dispute on them. [36] In fortifying the Plaintiff’s submission, the learned counsel for the Plaintiff cited the Court of Appeal decision in Kebabangan Petroleum Operating Company Sdn Bhd v. Mikuni (M) Sdn Bhd & Ors [2021] 7 CLJ 544, where Suraya Othman JCA held that the conduct of the party could be taken into consideration, as follows at page 554: S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 “[35] We were of the view that the first respondent’s conduct in unreasonably and deliberately delaying the payment of its portion of the provisional advance deposit or the first respondent’s persistence in refusing to pay and its sheer unresponsiveness and callous disregard to the letters issued by the appellant and KLRCA, had rendered the arbitration agreement between the appellant and the first respondent inoperative. The conduct of the first respondent had indicated that it was disinterested and is abandoning its intention to proceed with the arbitration, thereby waiving its rights for arbitration under the umbrella agreement.”. [37] From the Plaintiff’s argument to oppose Enclosure 5, the learned counsel for the Plaintiff contends that at all material times, the Defendant’s conduct had evinced and/or signified and/or affirmed their unequivocal intention to abandon and waive their rights to be bound by the Arbitration Clauses due to their inaction and passive response for a prolonged period of time prior to the filing of this suit. [38] The Plaintiff’s demands to remedy any alleged breaches and abruptly terminating the Agreement on the ground of illegality without once referring the matter to arbitration if indeed the Defendant was in reliant upon its interpretation of Clause 36. S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 [39] Based on the case of Kebabangan Petroleum (supra), the Court of Appeal in the unanimously directed for the High Court stay of court proceedings order to be lifted and parties to proceed to trial. The Court of Appeal also held the view that the High Court failed to appreciate that the first respondent had committed a repudiatory breach which rendered the arbitration agreement between the appellant and the first respondent inoperative by its conduct. [40] The learned counsel for the Plaintiff submits that the Defendant is estopped from shifting their stance to resort to arbitration due to the following: (a) Defendant’s unilateral termination of the Agreement on 26 September 2022 without seeking any prior consent and discussion with the Plaintiff and the failure to give the Plaintiff (6) months’ notice in writing in regards to the termination. (b) Defendant’s invocation of the Arbitration Clauses appears to be exceptionally contrary to the Defendant’s conviction reflected through the series of the Defendant’s correspondences dated 26 September 2022, 28 October 2022 and 9 January 2023 in not recognising the existence of the Agreement for want of legality allegedly caused by the purported illegal and unlawful conduct of the Plaintiff. (c) Defendant’s inaction, disinterest and inordinate delay towards the Plaintiff’s consistent and continuous efforts in communicating with the Defendant to amicably resolve the Defendant’s breach and non-compliance of the Agreement. S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 [41] To support its contentions, the Plaintiff has also referred this Court to the series of correspondence between the Parties in Paragraph 13.2 of Enclosure 9 which clearly details the Plaintiff’s continuous attempts to resolve the dispute but was never once reciprocated by the Defendant. However, the Defendant has determinedly refused to cooperate by not attending the meetings organised by MOHE as the responsible regulatory body, in an effort to resolve the dispute from further worsening in view of the Affected Students but instead the Defendant wilfully elected to remain silent. It is not surprising that the mode of dispute resolution was never once ventilated as the Defendant took the “silent” approach until service of this suit. [42] Therefore, the Plaintiff’s seeks that this Court must dismiss Enclosure 5 as the Defendant’s conduct and allegations have been consistent in rendering the Agreement to be inoperative and incapable of performance thus falling under the exceptions to SECTION 10 OF THE ACT. [43] For issue (c): the learned counsel for the Plaintiff submits that arbitration is not the appropriate forum for dispute resolution bearing that the subject matter of the dispute concerns a matter of public policy, which is the interest and welfare of the affected students, fulfilling the exception in section 4(1) of the Act. 51. S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 [44] The learned counsel for the Plaintiff states that section 4 of the Act is a specific provision in relation to the arbitrability of subject matter which provides that “Any dispute which the parties have agreed to submit to arbitration under an arbitration agreement MAY be determined by arbitration unless the arbitration agreement is contrary to public policy…”. [45] The Federal Court case of Arch Reinsurance Ltd v. Akay Holdings Sdn Bhd [2019] 5 MLJ 186. where Abu Samah Nordin FCJ in deciding on the issue of arbitrability under section 4 of the Act held at page 206 – 207 as follows: “[63] Under s 4(1) of the Arbitration Act 2005 a dispute which the parties agree to submit to arbitration is not arbitrable on ground of public policy. There is no universally accepted test on what is public policy. Different courts and different tribunals might have different views as to enforceability of contracts on ground of public policy: See Westacre Investments Inc v Jugoimport-SDPR Holding Co Ltd and others [1999] 3 All ER 864. [64] Russel on Arbitration (24th Edition) at p71 para 2 makes the following observation: ‘... In particular, a dispute will generally not be arbitrable if it involves an issue of public policy, public rights or the interests of third parties, or where the dispute in question is clearly covered by a statutory provision which provides for inalienable access to courts .’. S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 [46] The Federal Court referred to the jurisprudence by the Singapore Court of Appeal in the case of Tomolugen Holdings Ltd And Another v. Silica Investors Ltd And Other Appeals [2015] SGCA 57, where the Singapore Court of Appeal, in dealing with section 11 of the Singapore International Arbitration Act, held at paragraph 76 that there will ordinarily be a presumption of arbitrability so long as the dispute falls within the scope of an arbitration clause but it can be rebutted where: (a) Parliament intended to preclude a particular type of dispute from being arbitrated (as evidenced by either the text or the legislative history of the statute in question); or (b) it would be contrary to the public policy considerations. [47] The Plaintiff’s submission is further supported with the Court of Appeal case of Padda Gurtaj Singh v. Tune Talk Sdn Bhd & Ors And Another Appeal [2022] 4 MLJ 257, where See Mee Chun JCA held as follows: “[78] Nevertheless, we find there are exceptions to the presumption of arbitrability, as was stated in Larsen Oil at p 431: [44] The concept of non-arbitrability is a cornerstone of the process of arbitration. It allows the courts to refuse to enforce an otherwise valid arbitration agreement on policy grounds. That said, we accept that there is ordinarily a presumption of arbitrability where the words of an arbitration clause are wide enough to embrace a dispute, unless it is shown that parliament intended to preclude the use of arbitration for the particular type of dispute in question (as evidenced by the statute’s text or legislative history), or that there is an inherent conflict S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 between arbitration and the public policy considerations involved in that particular type of dispute.”. [48] In the recent decision of the Court of Appeal that has approved the application of the court’s inherent power and/or inherent jurisdiction pursuant to Order 92 rule 4 Rules of Court 2012 in Abd Rahman Bin Soltan & Ors V Federal Land Development Auhtority & Anor And Other Appeals [2023] 4 MLJ 318, where Wong Kian Kheong JCA at paragraph 67 upheld the High Court decision to dismiss a stay application pending arbitration premised on ground that public interest is paramount and outweighs any private interests of parties. The Court of Appeal further explained that in the courts ‘balancing exercise’, public interest (transparency) and public interest (expeditious court trial) far outweigh all private interests. Further the court could not envisage any injustice which may be occasioned to proceed to trial to oppose and to counterclaim if any, thus there is no adverse effect envisaged. Lastly, the Court of Appeal held that to proceed to arbitration constituted an abuse of arbitral process. In coming to its decision, the Court of Appeal approved the High Court decision in LNH Landscaping Sdn Bhd v TKH Construction Sdn Bhd and Other Appeals [2021] MLJU 761; [2021] MLJ 615; at [38]. The High Court here applied the Court of Appeal decision in Protasco Bhd v Tey Por Yee and Another Appeal [2018] MLJU 993; [2018] 5 CLJ 299 which laid the guiding principle as follows: S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 “(a) in deciding a stay/no stay (suit), the court should prevent an injustice or an abuse of court process as provided in O 92 r 4 of the RoC. Such an approach (in the interest of justice) is in consonance with Prostaco (which has been affirmed by our Federal Court in Jaya Sudhir) as well as cases from Singapore (Tomolugen Holdings) and HK (Linfield); (b) in the determination of a stay/no stay (suit), all relevant factors should be considered together by the court (Balancing Exercise) — Prostaco. In the Balancing Exercise — (i) the overriding consideration is justice and prevention of abuse of court process; (ii) the factors to be considered by the court are not exhaustive - please refer to the judgment of VK Rajah JA in Singapore’s Court of Appeal in Tjong Very Sumito & Ors v Antig Investments Pte Ltd [2009] 4 SLR 732, at [52]. However, the court should not consider the merits of the suit and arbitration in question—Tjong Very Sumito, at [53]; (iii) the court may attach any weight to any factor as the court deems fit; and (iv) the court may accept certain factors in preference to other matters; and (c) the exercise of judicial discretion regarding a stay/no stay (suit) depends on the particular facts of each case — Protasco, at [75]. Accordingly, from the view point of the stare decisis doctrine, judgments regarding stay/no stay (suit), are based on their own factual matrices and have no binding effect.”. S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 [49] Based on the above authorities, the learned counsel for the Plaintiff’s submits that – • the crux forming the nucleus of this suit is to bring forth the urgent attention to the interest and plight of the Affected Students who have fallen victims to the Defendant’s malicious tactics and/or schemes. • this dispute has not only resulted in the losses and damages suffered by the Plaintiff alone following the Defendant’s action in unlawfully and/or unilaterally terminating the Agreement but have severely impacted the future, wellbeing and livelihood of the Affected Students and whom are now in a limbo. • this Court ought to have knowledge regarding the severity of the subject matter in order to make an informed decision in determining the arbitrability of this dispute. • in reading the authorities in relation to a stay of proceedings pending arbitration, it is found that the Courts generally have a detailed understanding as to the issues between the parties and the legal documents involved in order to come to their decision without having to go on the merits of the application. • any attempt to hide the subject matter of the dispute will be a grave miscarriage of justice against the Affected Students and which will only mislead this Court. S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 • Enclosure 5 must not be allowed as it is contrary to public policy whereby there is an inherent conflict between the arbitration agreement and the public policy consideration in relation to the dispute between the Parties to protect the interest of the Affected Students. • in the case of ABD RAHMAN BIN SOLTAN (supra) at paragraph 52, the Court of Appeal in interpreting the arbitration agreement following the contra proferentum rule against the party that drafted the said agreement. Thus, in the event this Court finds there is ambiguity in the construction of the Arbitration Clause, that ambiguity should be resolved in favour of the Plaintiff against the Defendant (who drafted the Agreement). • the Defendant being a licensed private higher education institution registered under MOHE is governed under the Private Higher Educational Institutions Act 1996 (Act 555). Thus, the Agreement established under the collaboration between the Parties fall under the purview and requirements of Act 555. • that the Defendant’s relationship with MOHE is simultaneously woven into the network of statutory schemes under Act 555, a public source of law which falls squarely within the ambit of public domain as they pertain to the establishment, registration, management, supervision and quality control of private higher education service providers in Malaysia. S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 • that the Defendant’s objection towards the involvement of MOHE as a neutral third party, in intervening and facilitating the Parties dispute as a result of the lodgement of complaint dated 18 October 20224 by the Plaintiff is baseless and without merit as after all the objective was to resolve matters amicably with the interest of the Affected Students at the forefront. • section 58 of Act 555 which empowers the Minister to conduct an inspection in upholding and safeguarding the interest of the students, provides – “58. Power of Minister to give directions to safeguard interest of students. (1) Where on his own volition a chief executive informs the Minister or where as a result of an inspection made under Part XII or for any other reason the Minister is of the opinion that a private higher educational institution – (a) is unable to meet its obligations to its students; (b) is about to suspend its operations; or (c) is carrying on its activities in a manner detrimental to the interest of Malaysia, the public or the students, the Minister S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 may, without prejudice to the generality of the powers of the Minister to give directions under section 5, for the purpose of safeguarding the interest of Malaysia, the public and the students of the private higher educational institution – (aa) direct the private higher educational institution in question to take such steps as the Minister considers necessary to rectify any matter or circumstances; (bb) direct that a person or a committee to be appointed or himself appoint a person or a committee to advise the chief executive in the management of the private higher educational institution; or (cc) take such action as the Minister considers necessary in the circumstances of the case to bring the affairs of the private higher educational institution into accord with the provisions of this act. S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 (2) Every direction of the Minister made under subsection (1) or advice or instruction of a person or a committee appointed under paragraph (1) (bb) shall be binding on the private higher educational institution. (3) All expenses incurred by the person or the committee appointed under paragraph (1) (bb) shall be paid by the private higher educational institution. (4) Where a private higher educational institution fails to comply with any advice or instruction given to it by the person or committee appointed under paragraph (1) (bb), such noncompliance may be a ground for revoking its approval.”. [50] In applying the statutory provisions enacted by the Legislature, the learned counsel for the Plaintiff submits that it is clear that the subject matter in this dispute is statutorily governed under Act 555 as it concerns the Defendant’s conduct in failing to meet its obligation under the Agreement, subsequently jeopardising the interests of the Affected Students. This is evident as follows: (a) Defendant’s breach of the Memorandum of Agreement has strenuously denied the Affected Students from receiving their degree certificates upon the completion of their courses, directly denying their right to acquire proper certification upon S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 dutifully completing their relevant courses which inherently impacts their future. (b) Defendant’s breach of the Agreement has strenuously denied the Affected Students’ opportunity to be enrolled into the Programmes due to the Defendant’s neglect in providing the application forms to the Plaintiff. (c) Defendant’s breach of the Agreement has strenuously denied the Affected Students right to duly complete their courses under their respective programmes. [51] To conclude its main written submission, the learned counsel for the Plaintiff avers that the Defendant’s conduct and actions as mentioned falls squarely within the statutory provision which as a result had undergone the inspection and investigative process with the officers of MOHE but to no avail due to the Defendant’s delaying tactics and refusal to resolve this matter. Herein, the Plaintiff avers that the most appropriate forum in resolving this dispute which has been long overdue would be before this Court bearing that the subject matter of the dispute concerns the interest and plight of the Affected Students which falls under the exception to section 4(1) of the Act. The Defendant’s contentions in supporting its application in Enclosure 5 [52] In the notice of application by the Defendant for a stay of proceedings pending reference to arbitration dated 8-9-2023 that is about 2 weeks after receiving the writ of summons and statement of claim, the S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 36 Defendant in its affidavit in support and the written submission by the learned counsel for the Defendant, urge this Court to stay all the proceedings pertaining to this suit. The Defendant’s application is being made pursuant to section 10(1) of Act 646 read together with Order 69 r. 10 Rules of Court 2012. [53] The Defendant avers that – (a) the Agreement dated 13-11-2020 contained the arbitration clause that is in Clause 36 (a) and (b) under title “Settlement of Disputes” and Clause 39 (iv) under title “Others”. (b) the use of the words “shall” and “will” in Clause 36 (a) and Clause 39 (iv) puts it beyond dispute that any dispute or difference must be referred to arbitration as the preferred choice of forum as agreed to by the Plaintiff and the Defendant. (c) in reading the statement of claim, the Plaintiff’s entire claim is about the purported breach and/or repudiation of the Agreement and matters related to and arising from. Therefore, the learned counsel for the Defendant submits that the very nature of the Plaintiff’s claims against the Defendant brings the entire dispute or difference between the parties within the ambit of the arbitration as in Clause 36 (a) and Clause 39 (iv) of the Agreement. S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 37 [54] The cases cited by the learned counsel for the Defendant are Press Metal Sarawak Sdn. Bhd. v. Etiqa Takaful Bhd [2016] 5 MLJ 417; and Tindak Murni Sdn. Bhd. v. Juang Setia Sdn. Bhd. and another appeal [2020] 3 MLJ 545. [55] The Defendant in paragraph 17 of its main written submission avers that the position taken by the Defendant is that the Plaintiff has breached and/or repudiated the Agreement by commencing the degree programmes at Stamford College in Melaka without the requisite approvals from the Ministry of Higher Education and the Malaysian Qualifications Agency (MQA) as required under the Private Higher Educational Institutions Act 1996 (Act 555) and the Malaysian Qualifications Agency Act 2007 (Act 679). [56] Next argument is that, the learned counsel for the Defendant submits that the Plaintiff has confused the Agreement to arbitrate under section 10(1) Act 646 with Clauses 36 (a) and Clause 39 (iv) of the Agreement. The Defendant avers that the Agreement to arbitrate is independent of and severable from the rest of the Agreement. [57] The learned counsel for the Defendant submits that the Plaintiff has failed to show how the Agreement to arbitrate is null and void, inoperative or incapable of performance when the issue of – • whether the Plaintiff or the Defendant has breached or repudiated the Agreement? or • whether the Plaintiff has acted unlawfully and/or illegally in commencing the degree programmes without the approval of the Ministry and the Agency? S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 38 According to the Defendant these 2 issues are matters entirely within the jurisdiction of the arbitral tribunal to consider and determine. [58] The learned counsel for the Defendant submits and position taken by the Defendant is that the issue of illegality of the degree programmes commenced by the Plaintiff without the approval of the Ministry and the Agency are matters that go to the root of the dispute between the Plaintiff and the Defendant which this Court is not supposed to determine on a stay application under section 10(1) Act 646. These are matters for the arbitral tribunal to consider and determine. This Court be usurping the functions, duties and powers of the arbitral tribunal if the Court proceeded to make such a determination at this stage on the merits of the dispute or difference between the Parties. (emphasised added by this Court). The Law on Stay pending arbitration [59] Dalam Bench Book – Civil Procedure – ARBITRATION Stay of proceedings pending reference to arbitration 1. Provisions – (a) Section 10 Arbitration Act 2005 [Act 646] (b) O 69 Rules of Court 2012 2. It is mandatory for the Court to stay the proceedings and refer the matter to arbitration where: S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 39 a. there is an arbitration agreement between the parties to the proceedings; or b. the agreement is not null and void, inoperative or incapable of being performed. (KNM Process Systems Sdn Bhd v Mission Biofuels Sdn Bhd [2013] 1 CLJ 993) 3. In granting a stay of proceedings, the Court may impose conditions as it deems fit. 4. The applicant for the order of stay of proceedings and to refer the matter to arbitration must make the application before taking any other steps in the proceedings. 5. The entry of an Unconditional Appearance is a “permitted, excluded or an exempted step in the proceedings that did not amount to a step in the proceedings within the meaning of s. 6 of the Act and would not prejudice the appellant’s right to apply for a stay of the proceedings. [Sanwell Corporation v Trans Resources Corporation Sdn Bhd & Anor [2002] 3 CLJ 213; Life Plaza Sdn Bhd v Pasukhas Construction Sdn Bhd [2012] 5 CLJ 120] 6. xxx. S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 40 7. The arbitration agreement or agreement to arbitrate must be reduced in writing and not by mere inferences. [60] Arbitration Act 2005 [Act 646] is an Act to reform the law relating to domestic arbitration, provide for international arbitration, the recognition and enforcement of awards and for related matters. [61] Sections 4 and 8 of Act 646 provide – Section 4. Arbitrability of subject-matter (1) Any dispute which the parties have agreed to submit to arbitration under an arbitration agreement may be determined by arbitration unless the arbitration agreement is contrary to public policy or the subject matter of the dispute is not capable of settlement by arbitration under the laws of Malaysia. [Am. Act A1569/2018] (2) The fact that any written law confers jurisdiction in respect of any matter on any court of law but does not refer to the determination of that matter by arbitration shall not, by itself, indicate that a dispute about that matter is not capable of determination by arbitration. Section 8. Extent of court intervention No court shall intervene in matters governed by this Act, except where so provided in this Act. S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 41 [62] Act 646 has spelt out the Arbitration agreement in sections 9, 10 and 11 that provide − Chapter 2 - Arbitration agreement Section 9. Definition and form of arbitration agreement (1) In this Act, “arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. (2) An arbitration agreement may be in the form of an arbitration clause in an agreement or in the form of a separate agreement. (3) An arbitration agreement shall be in writing. (4) An arbitration agreement is in writing— (a) if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means; or (b) if it is contained in an exchange of statement of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other. [Subs. Act A1569/2018] S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 42 (4A) The requirement that an arbitration agreement be in writing is met by any electronic communication that the parties make by means of data message if the information contained therein is accessible so as to be useable for subsequent reference. [Ins. Act A1569/2018] (5) A reference in an agreement to a document containing an arbitration clause shall constitute an arbitration agreement, provided that the agreement is in writing and the reference is such as to make that clause part of the agreement. (6) For the purpose of this section, “data message” means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange, electronic mail, telegram, telex or telecopy. [Ins. Act A1569/2018] Section 10. Arbitration agreement and substantive claim before court (1) A court before which proceedings are brought in respect of a matter which is the subject of an arbitration agreement shall, where a party makes an application before taking any other steps in the proceedings, stay those proceedings and refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed. [(1) Subs. Act A1395] S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 43 (2) The court, in granting a stay of proceedings pursuant to subsection (1), may impose any conditions as it deems fit. (2A) Where admiralty proceedings are stayed pursuant to subsection (1), the court granting the stay may, if in those proceedings property has been arrested or bail or other security has been given to prevent or obtain release from arrest— (a) order that the property arrested be retained as security for the satisfaction of any award given in the arbitration in respect of that dispute; or (b) order that the stay of those proceedings be conditional on the provision of equivalent security for the satisfaction of any such award. (2B) Subject to any rules of court and to any necessary modifications, the same law and practice shall apply in relation to property retained in pursuance of an order under subsection (2A) as would apply if it were held for the purposes of proceedings in the court making the order. (2C) For the purpose of this section, admiralty proceedings refer to admiralty proceedings under Order 70 of the Rules of the High Court 1980 [P.U. (A) 50/1980] and proceedings commenced pursuant to paragraph 24(b) of the Courts of Judicature Act 1964 [Act 91]. [(2A, (2B), (2C) Ins. Act A1395] S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 44 (3) Where the proceedings referred to in subsection (1) have been brought, arbitral proceedings may be commenced or continued, and an award may be made, while the issue is pending before the court. (4) This section shall also apply in respect of an international arbitration, where the seat of arbitration is not in Malaysia. [(4) Ins. Act A1395] Section 11. Arbitration agreement and interim measures by High Court (1) A party may, before or during arbitral proceedings, apply to a High Court for any interim measure and the High Court may make the following orders for the party to— [Am. Act A1569/2018] (a) maintain or restore the status quo pending the determination of the dispute; (b) take action that would prevent or refrain from taking action that is likely to cause current or imminent harm or prejudice to the arbitral process; (c) provide a means of preserving assets out of which a subsequent award may be satisfied, whether by way of arrest of property or bail or other security pursuant to the admiralty jurisdiction of the High Court; S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 45 (d) preserve evidence that may be relevant and material to the resolution of the dispute; or (e) provide security for the costs of the dispute. [Subs. Act A1569/2018 Subsection 1(a)-(e)] (2) Where a party applies to the High Court for any interim measure and an arbitral tribunal has already ruled on any matter which is relevant to the application, the High Court shall treat any findings of fact made in the course of such ruling by the arbitral tribunal as conclusive for the purposes of the application. (3) This section shall also apply in respect of an international arbitration, where the seat of arbitration is not in Malaysia. [(3) Ins.Act A1395] Evaluation & Findings of this Court [63] The legal action taken by the Plaintiff against the Defendant is about the breach of the Agreement dated 13-11-2020; fraudulent misrepresentation and/or tort of deceit and negligence misstatement. [64] In the statement of claim dated 23-8-2023, the Plaintiff has pleaded and detailed out each of the cause of action. [65] The list of the Affected Students i.e. there are 16 Gratuated Students (No Certificates), 10 Graduated Students (No Endorsement), 12 Ongoing Students (Students who have yet to complete their studies under BBA and BHM programmes) is as in paragraph 8 in the statement of claim. S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 46 [66] The Plaintiff claims that it has complied with its obligations under the Agreement as per the terms and conditions of the Agreement. Paragraph 10 in the statement of claim where Plaintiff pleads that the Plaintiff in good faith performed its obligations. [67] Whilst the Defendant avers that the Plaintiff itself has breached and/or repudiated the Agreement by commencing the degree programmes at Stamford College in Melaka. [68] In dismissing the Defendant’s application in Enclosure 5, it is right for me to say that this Court “has encroached” and proceed the dispute between the Parties by way of Court proceedings and disallowed the matters to be considered and determined by the arbitral tribunal. [69] Therefore, this Court has perused the application in Enclosure 5, the affidavits, documents and written submissions. Is the contention made by the Defendant that this Court is not supposed to determine on a stay application under section 10(1) Act 646. These are matters for the arbitral tribunal to consider and determine. This Court be usurping the functions, duties and powers of the arbitral tribunal if the Court proceeded to make such a determination at this stage on the merits of the dispute or difference between the Parties. (emphasised added by this Court), correct and valid? [70] In filing Enclosure 5, the defence and/or counter claim has yet to be filed by the Defendant. Therefore, the issues pertaining to the matters in the Agreement such as breach of obligations by Stamford College (Malacca) Sdn Bhd [the Plaintiff] and/or Asia Pacific Higher Learning Sdn Bhd are the material issue to be determined. The determination and decision by the Court or the arbitral tribunal is highly anticipated by the S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 47 Affected Students. The faith of their College University degree as they had enrolled at Stamford College (Malacca) Sdn Bhd [the Plaintiff] is at stake or in peribahasa Melayu “Harapkan pagar, pagar makan padi”. [71] Since both Plaintiff and Defendants did rely on the Agreement that contained the arbitration agreement clauses, the Plaintiff has filed the legal action to the Court and not to the arbitral tribunal. Only after the Plaintiff has filed this Suit, then the Defendant strongly said like “hey, let us discuss our dispute or difference at the arbitral tribunal”. [72] The Court of Appeal decision in the case of Accounting Publications Sdn. Bhd. v. Ho Soo Furniture Sdn Bhd. [1998] 4 MLJ 497 as cited by the learned counsel for the Defendant that the apex court held that – “(1) ... the judicial commissioner exceeded the role assigned to her when dealing with an application for a stay of proceedings under s 6 of the Arbitration Act 1950. A court must compel the parties to adhere to the terms of the arbitration agreement entered into by them even though it may appear from the evidence that the defendant is unlikely to succeed before the arbitrator... (2) The prase ‘dispute or difference concerning the contract’ used in the present instant was wide enough to include the kind of controversy that existed between the plaintif and the defendant immediately prior to the issuance of the writ. A failure to agree may not be a dispute, yet it is a difference. However, the judicial commissioner in the present appeal only directed her mind to the S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 48 word ‘dispute’ but omitted from consideration the words ‘or difference’ even if it did not amount to a dispute... . (3) The judicial commissioner required the defendant to show why the parties should arbitrate and not to litigate. However, it was for a plaintiff to demonstrate why an agreement to arbitrate that was plainly binding upon the parties should be thrown overboard. Therefore, the judicial commissioner appeared to have reversed the burden imposed by law. Further, she appeared to have proceeded upon the basis that the arbitration clause had the effect of ousting her jurisdiction. This was a misdirection as such a clause did not oust the jurisdiction of the court but gave the court a discretion to grant a stay pending arbitration.”. [73] In analysing the case of Accounting Publications Sdn. Bhd. (supra), as a judicial commissioner, I am not misdirected myself in dismissing Enclosure 5. The Suit before me should litigate and not to arbitrate. The facts as stated by the Plaintiff is clear enough that the controversy existed between the Plaintif and the Defendant immediately prior to the issuance of the writ must be determined in a forum before a Court. [74] If the Plaintiff and the Defendant intend to resolve the matters amicably, by all means let the cause papers be filed accordingly and the via mediation before the trials, the dispute and/or the difference can be resolved. S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 49 [75] In other words, this Court is indeed the proper forum possessed with the jurisdiction and power to investigate and conclude on the validity of the arbitration agreement and is not barred from doing so. [76] The learned counsel for the Plaintiff has assisted this Court to the latest development of law in regards to the application of stay of proceedings pending arbitration. The decision of Court of Appeal case of Macsteel International Far East Limited v. Lysaght Corrugated Pipe Sdn Bhd & Anor [2023] 1 LNS 1078, in May 2023, which in the judgment of Lim Chong Fong JCA put forth the full merits approach based on the available evidence rather than the cursory prima facie approach as set out in all of the cases referred to by the Defendant to determine whether the arbitration agreement was properly concluded and hence ultimately decide whether the court proceedings ought to be stayed as follows: (a) in Macsteel International Far East Limited (supra), the case is related to the appeals against the High Court's refusal to grant a stay of the proceedings and refer the parties to arbitration pursuant to section 10 of the Arbitration Act 2005 as well as the consequential grant of an anti-arbitration injunction to restrain the parties from continuing the arbitration proceedings commenced at the Hong Kong International Arbitration Centre. Lim Chong Fong JCA held that the appeals are unmeritorious and are thus dismissed as so ordered. (b) the Court of Appeal in relying upon the English case of ALBON (trading as NA Carriage Co) v Naza Motor Trading Sdn Bhd [2007] 2 ALL ER 1075 had laid down four (4) guidelines ‘open to the court’ in a situation where the S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 50 conclusion of the arbitration agreement is in issue. Lightman J held that the four guidelines are to be employed in interpreting Section 9(1) and 9(4) of the English Arbitration Act 1996 which is in pari materia with section 10(1) of the Arbitration Act 2005. The four (4) guidelines are as follows: i. Firstly, where it is possible to do so, the court is to decide the issue on the available evidence presently before the court that the arbitration agreement was made and grant the stay; ii. Secondly, the court is to give directions for the trial by the court of the issue; iii. Thirdly, the court is to stay the proceedings on the basis that the arbitrator will decide the issue; or iv. Fourthly, where it is possible to do so, the court is to decide the issue on the available evidence that the arbitration agreement was not made and dismiss the application for the stay. (c) the Court of Appeal was also of the view at paragraph 19 that whilst the court should be slow to interfere with the jurisdiction of the arbitral tribunal, it did not mean that the court should readily grant a section 10 of the Arbitration Act 2005 stay application when the existence of the arbitration agreement in S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 51 itself is in question without evaluating the facts and evidence himself based on the full merits approach. (d) the Court of Appeal further emphasised that if there is no arbitration agreement in existence, then, there can be no reason for the arbitration. (e) Court of Appeal in affirming the decision of the Judicial Commissioner to refuse the stay of application pending arbitration held the following: “[21] The learned Judicial Commissioner therefore, in the circumstances, came to the view MIFE only had circumstantial but not direct evidence that the impugned supply contracts were not forged. This is insufficient to conclude at this stage that there is a valid arbitration agreement in existence between the parties; hence he directed this issue be tried based on the 2nd option in the guidelines prescribed in Peter Albon (supra).”. [77] The recent apex Court decision is parallel with the Plaintiff’s position at present to which the validity and enforceability of the arbitration agreement is consistently disputed. Therefore, this Court willingly and competently to make proper assessment in evaluating the facts and evidences vide the full merits approach. My decision is not to ignore Act 646 but if a dispute exists between the parties that warrants a reference to arbitration is misconceived and thus ought to be rejected with reference to Macsteel International Far East Limited (supra). S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 52 [78] After reading the learned counsel for the Defendant’s submission in reply, it is not much difference, the Defendant relies on its main submission, the provisions in the Act, the Agreement and the authority of cases. [79] The replies by the learned counsel for the Defendant that the Affected Students are not parties to the arbitration agreement and they are also not the parties to this Suit did not at all barred the Plaintiff to defend the Affected Students before this Court. The Affected Students or the Defendant called them as “the Stamford College ‘stranded’ without a degree” also can take the necessary legal action against the Defendant. [80] The learned counsel for the Defendant rebut the issue of public policy is never been raised in the Plaintiff’s affidavit in reply. This Court disagrees. In the statement of claim, the fact that the denial of the Affected Students under the Agreement from receiving their award certificates upon completing their studies is a public policy matters. The Affected Students should not become the victims caused by any parties. The Affected Students’ parents and or guardian had paid the students fees to the Stamford College, Malacca, studied for their final examinations and these Stamford College ‘stranded’ without a degree is dispute for this Court to determine and consider. Conclusion [81] In conclusion, therefore, based on the aforesaid reasons, and after careful scrutiny and judicious consideration of all the evidence before this Court, the Defendants’ Application as in Enclosure 5 is dismiss with costs. S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 53 [82] Without hesitation, the Defendant is instructed to complete the cause papers and ready for the litigation before me. Dated: 17 November 2023. RoziBainon ( ROZI BINTI BAINON ) Judicial Commissioner Shah Alam High Court NCvC12 The Counsels: For the Plaintiff: Hasrina binti Hakimi Messrs. Hasrina Hakimi, Kuala Lumpur For the Defendant: Gerard Samuel Vijayan Lourdesamy Messrs. Gerard Samuel & Associates, Petaling Jaya S/N VZCPhjgZkUmnrcOGRmxMOQ **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

WA-44-59-06/2023

PEMOHON FARHAN BIN MOHAMED FAHMY RESPONDEN 1. ) TIMBALAN MENTERI DALAM NEGERI MALAYSIA 2. ) PENGUASA KANAN PUSAT PEMULIHAN AKHLAK SIMPANG RENGGAM, JOHOR 3. ) KETUA POLIS NEGARA

An application for a writ of habeas corpus - challenging the legality of the detention order (“the DO”) issued by the 1st Respondent - under section 6(1) of the Dangerous Drugs Acts (Special Preventive Measures Act) 1985

17/11/2023

YA Datuk Noorin binti Badaruddin

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=038668a6-5e97-4ba0-818d-3b34e4f31e98&Inline=true

17/11/2023 15:43:49 WA-44-59-06/2023 Kand. 24 S/N pmiGA5deoEuBjTs05PMemA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pmiGA5deoEuBjTs05PMemA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pmiGA5deoEuBjTs05PMemA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pmiGA5deoEuBjTs05PMemA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pmiGA5deoEuBjTs05PMemA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pmiGA5deoEuBjTs05PMemA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pmiGA5deoEuBjTs05PMemA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pmiGA5deoEuBjTs05PMemA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pmiGA5deoEuBjTs05PMemA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pmiGA5deoEuBjTs05PMemA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pmiGA5deoEuBjTs05PMemA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pmiGA5deoEuBjTs05PMemA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pmiGA5deoEuBjTs05PMemA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pmiGA5deoEuBjTs05PMemA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pmiGA5deoEuBjTs05PMemA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pmiGA5deoEuBjTs05PMemA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pmiGA5deoEuBjTs05PMemA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pmiGA5deoEuBjTs05PMemA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pmiGA5deoEuBjTs05PMemA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pmiGA5deoEuBjTs05PMemA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pmiGA5deoEuBjTs05PMemA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pmiGA5deoEuBjTs05PMemA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N pmiGA5deoEuBjTs05PMemA **Note : Serial number will be used to verify the originality of this document via eFILING portal WA—dd—59—06/2023 Kand. 24 11/11/2023 15:4:-as DALAM MAMKAMAN TINGGI MALAVA DI KUALA LUMPUR DALAM NEGERIWILAVAH PERSEKUTUAN KUALA LUMPIAR EERMOHONAII JENAVAH ug yyA£§g-ogzoza Da\am Perkara Pevmohnnan Habeas Covvus selavas denaan aau xxxvc Kznun Talacara Jenayah (Am 593; Dan Dnlam Future 5 dan csv Perlemnagaan Perxakuluan D... Dalam Perkxra Permohunan m Bawah sexsyen 365 m (M Kamm Tamara Jena)/an Dan naum Fsrkara FARNAN am MOHAMED rmmv [Nu xv Mo22MA6J39) yanfi duahan av bawah Saklyln 5 mm. Dinah Eemarvaya (L2nnkah~langk.uh Peneegahnn Khas)‘I985 ANTARA FARHAN BIN MOHAMED FAHMY PEMOHON MN 1. TIMEALAN MENTERI DALAM NEGERI MALAYSIA 2. FENGUASA KANAN PUSAT PEMULIHAN AKHLAK SIMFANG RENGGAM, JOHOR 1. KETUAPOLIS NEGARA RESPONDEN-RESPONDEN m pm\GI.fiflIuEuB‘Tifl5PM-MA mm. smm ...m.mm .. LAIQ4 w my .. nngwn-Hly J . dun-mm VII .mm mm LHEQMENI [11 This is an aopneanon far a wnt ot habaas Dnrpus challengmg the Iegahw oflhe delentiun alder (“flux DD") tssued hy the 1“ Raspondenl under s.att)a1tne Dangerous Drugs Ac1s1SpectalPrevsnhve Measures Act) 1985("lho um dveding me applicam be detamsd for a penod or two (2) years comrnancmg «mm 23122022 at the ‘Fusal Pemulman Akhlak Stmpang Ranggam", Jahor ('PPA"). salient Facts [2] The applicant was arrested under s.3(1|uH.he Act on 211 2022 [3] on tt.1t.2u22, Asslslanl camnusstonerot Ponce Mnhamad Fadztl Em A.Rahman (“ACP Mohlmld Fouzlm, the Deputy Dtredor at the mucous cnrnmet Knvesflgahon Department, Fohoe t-teaoquartars Dutut Aman reoetved tne report telalmg lo tne applicants arrest and oetanuon lmm Deputy supenntenaent Pahce Monanunaa Faun! am Muhd Arnu ("asp Munammua aunt") [A] A report remmg to the appliwnl s arreetanu detention was prepared by AC? Mohamed Fadzil and forwarded to tne Depuly MINE!!! pursuant to : 312) to) of the Ad on t4.tt 2022. [51 on 9112022, Inspector Mono Haszaruddin Em Karnaruzzarnan (“lnspaclor Mahfl Hasxamddin") the mvesugatmg Dffioer irom me Narcotic Cnmmal Investiyalvon Department, Pohce Headquarters Dtstnct Dang wangt. Kua\a Lumpur had recorded tne aopnoants statement pursuantt to 5.4 of the Act. r~ vlmGI.fimDEuBtTin5PM-mA «mu. s.nn nuvthnrwm a. u... In M, .. Dr1g\ruHIy . dnuumnl VI murta mt 0! me authority resullmg to - breaan of an say M the FC must be dwsdosed, Safleh Abas LP (as he men was) he\d ‘When shomd s detainee arrested under s 73 name Intemal Ssoun'(yAc( be allowed in exemse his //ght underAn 5(3) 0/ me Consliruriun to consume counssro/ms cha:oe7 We would reryeraze what was held by me Fsdeval Cam m comm Phua v omcemncharge, Criminal mvesngarrons Kedah/Per//3 (197512 MLJ 195. In other words. the mallet shou/:1 best be left to me good judgment onhs authonly as am when such rrgm mrgm not mrervers mm palms mvesngalion To show breach of An. 513;, In Ippliclm has lo spam that run police has delibentely and with bad em» obstnlcmi a dot-(nee Imm exmrsing his right man me An.‘ [Emphasxs added] [:31 Further, m any given circumstances, wt mus! be empnasxsec (ha| me applucanfs arrest under a penal Act pnor |o ms arrest was! lheA4:1 Is not relevant harem Since we mmulemennonne mscam appncauon refers omy n to me to me Ad. In: courts deurmmamn nerem wm my be m re! legalnly ol the appncams delemmn undar me Act and nolhmg more Funhermme‘ me apphcanrs allegation mat he was uemeu M the rIgh| under me second limb of an 51:; av the FC does nol avian: me legamy 01 ms delermon and wm oi Habeas Corpus is not the accurate remedy [341 In Pallutlh Sinnlpplynn a. Anor v Ilmbnlln lhnurl ml-m Nogori Mlllyiin «In Or [2010] 2 cu 133. m delermmlng me Issue whelhar the appellams had been dspnvld a! wags: represemauon ea provwdad under an 50; M me rc dunng the so days‘ delentmn underlhe Emergency (Public Order and Fvevenuon av Cnmaj Ovdmance 1969, m pmwGI.fimuEuE‘Tsn5PMnmA «mm. smm ...m.mm .. U... m may he mmuny M» . dnuamnl VI mum Wm! cunsequence of which was eanlenaeu to Vlvalldale the delantlon process under s 4 01 me same Ordmanoet Zufkefli Makmudm FCJ (IS he men was) speakmg fol me Federal Courl expounded as «allows 15] On me proper aw?/icallon o/art. 5(3), learned counsel rot lne appellants sub/mlled that we lssue was alscusseu at great lengtn by me Federal CDIAR In the case of Monarnact Ezarn Menu New v Kelua Po/ls Negara and Other Appeals (200214 CLJ 309 Learned counsel referred to us a passage onne /udgment olher Ladyshfp Sm Nonrla Yaakob, FCJ (as she men was) ln Mohamed Ezam 's case mp. 355 as lollows On the [acts of mesa appeals before us l mnslder mat a//awmg access only afler me sxplly of thslr dslsnlron rs condutt unreasonable anaa clear vlolallan oIAn 5(3). I! also sugpcns lne appellants’ contemlon tnal tne dams! amounts to male /ids an the part of the police met the ISA was used for a collateral purpose. [7] However, rt must also be stated here mat nerlaaysmp snr Norma Yaakab, FC./ had also made pemrvenl ouservatran whlch learned counsel ma nu! reiel lo rn me same case of Mahamad Ezarn at p 339 as follows: can nalms corpus lie to secure the ltnrneulate Iuleasn oi the appelIanls7 l answer this by retemng Io some autnorivias. ln Les Mall Sang, ll was held that such a remedy ls not avallabls [0 persons Vlke tne appellants who after tnelr arrests and under lawml delsnklons were refused thslr constllulronal ngm under the second limb of an 5(3) IN vImGA.fimaEnlBlTsn5PM-mA :2 «ma Sum! nmhnrwm s. U... a may t... snmuu-y mm: dnuumnl Vfl nF\uNa v-max 001 Ah Phua lollowou Lee Mau Sang and nooeas corpus was refused on ma ground ma! lr VS pcsslb/e lor a person to be lswlully oelamed and unlawvully domed carnmumcallon wlth ms lawyer Lrkew/S9, In rsfuslng to [me an arveslsd person In pa/lce cuslodyln me /ndlsn case oISundarSingh u Emperor /1930) NR Lahore 945, smda ./had ms to say It was argued by ms counsel um ms pa/Ice custody became ‘lmpmpef .3; ms pom is/used lo allow svslv mo prisoner‘: legal ad-/lssr lo have access )0 mm ms is somewhat a oeualable palm‘, and although lhauo some to the con:/uslon (ha! mo police were nouuslmoo m /afualng me pnmner lo be intswiawed by no legal advlser I Ihlnk, lhls csnnol by llss/1 be cans:-iered to be suirclen: ground for satrmg mm at /lberfy at once m the clrcumslances olme cs:-s Tho ralianllo fw ufuslng luau coma: in an mm casls um I luv! cilod Iums (0 to. this. A zumpllint by u porson wnllo undur Iamill dctvntian that ho nu bl-n mllmd Icon: to counnl oommy 2:: mo slearld Ilmb all an 5(3) wlllnol non ln olhckalr-ndlriny nis dmnuan urlllwlul um um Illbons corpus Is no! mo proper nmndy. u would on ollmwlu If ror oxlmplt, than on bun u fnlluu to Inform mo pmon nmoloo or lhn ground: ofhis mm, corllrxry lo lhn um limb olm 5(2) Ind such Ililun would rundul his Jubuautnt dmnrlon unlmrul. cluny, It Is mo lo 1! mm or an omnrlon om datum/nu whothor nabu: corpm cln issuc to slcuru mu lmdom an amino porsarl u gumnma by -n 5(2) 0! our cunomuuon. IN pmxGI.fimaEuB;Tsn5PM-mA “Nair Sum! nmhnrwm .. u... u may .. mmuu .5? . dnuumnl Vfl mum v-ma! 1:] it is tn be noted that in Mnhamad Exam’: ass. dlnial uiascoss ta lanai ivprvsentatian was not the nniynmund rvlild upon by the eppeiiants to secure their ineedom From the judgments of the other time member plnuls comprising at Menemuu oxuiduin, c1, Slow snim Lip Kiang, CJ (S:bah 5 Slrlwik) and Abdul Malak Ahmad, FCJ (as M then was) me WM/Iants tn-ieii-i had succeeded in utlblishing that tneir demiiions undo! s. 13(1) ofrhe ISA Ara unllwfulblsod an grounds otriei mun t-ieniui uieeeess lo i-gsirepres-nmion, Timeioie, in me eanim iii in. present us. such raiiure by my respandonts to accommodate Iwei representation as ansiiiined under m. 5(3) of the FC to ma npmiiants duiinn tne sixni isa) dlys detention under s. 3 ol the ordinance wi/i not nndnr the hub“: corpus application citric npmiiants successiui an sucii ground [9] Stir en tiie issue of me iegei consequence of tne anpe!/ants iieving been dBDNVEd of iegei iepiesenietien under an 5(3) oiine FC during me sixly (90; days ueiention under s 3 oitne oiainence tiseiuiieieience may be made to the case of Mohd Faizal Haris v ni-iibaian Menieii Da/am Negeii, Malaysia 5. ois (20051 4 CL./ 613 wherein nis iorasiiip Augustine Peui, FCJ in aeiiveiing tiieiuagriieni or the Federal couii on tiie cieientian oi the appellant‘ unaei me Dengeiuus Drugs (Special Preventive Meeeuies) Act 1955 at p 525 tied this (0 say‘ 7ha nenmi iuie met e wiit oi iubeais corpus must be dlnctvd against me cumnt unit! of detention tneieioie eppiias wnm e a entian under 3. 5(1) has seen made IN FlwGI.fifli|oEuBiTifl5PM-MA IA “Nair s.i.i nmhnrwm be ti... m min i... nVW\nnU|Y MW: m.i.i. n. nF\uNG Wm! suimau-ni to -In mm and dntuntion undo! 5. 1(1) and 12). It follows that win»: . dwklnkion order has baln midi undcr s. 5(1) thn writ nl habnas carpus inns: bu diractud only aaainsr max ardcr mm it tho mm: «ms! and a union m imgu/u [101 rnmron nnyi uqullriry in the mm and umniion of mo nppnii-nis in in. pnsnni as. man undlr 5. J or lhn ominnnu whun it has b on supuctdtd by on. unuu s. 4(1) om-a Ordlnanct is no! n rnhvnnl mum for consld mm. It must bt rmlcd in mi pnstnt :15: mil mo -ppm-nis have no: Illogadlny irruqulzmy in mspm of [hair anus: and dulntion during in. sixty (50) dlys cl dntwmion. Nowlvar mo lppc//unis’ comp/a/ms wm nion in r-inion la Ma fact inn may run bun donlod lhn rig»: to iogni npusnnmion -1 lhll slant. Thnll iurnoa caunsll pond rho qucstlorv to us is to how men wouid lhcyb bin lo filu a wriralhnbou corpus n such procoduni imguim as which ma occurnd durinv rmir mm Ind umniion within mo sixty (50) dnys poriod without (hum Ming ginn ocean to counsel. mu Our short lnswlr no in. qulstian pas-4 Is our wl ngm with in. principal: I-Id down In mm: dnoidod can that a complaint by 1 person undcr imrui dmmion am he nu bun nmuu names to cuunsll can-itrlry to tin ucorid limb or In. 5(1) will not hlvn mo n.-rm oi rundlriny ms 4-unuan uninwrui ma in-1 minus corpus is not tn. plopcr rvmody (See lhs case ooi Ah Phua V Officer-/rv-Charge CIWWIBI /nvssligsnoni Kedsh/Per/I: [1 9751 m wmGI.fimoEuBiTifl5PM-mA 55 mm. snn ...m.mm .. LAIQ4 w may he onmnnuly . dnuumnl VII .mm Wm! 1 LNS 117 and Lee Man Seng V Mrnlszer af Hams Aflahs, Smgapore ll. Anon (197111 ms 55;.- [Emphasls added] [35] ln me wnuen submlsslcn med by learned counsel lay me appllcanl, it Is argued that VI must be pmven Dr documenlary avldenae must be adduced to show lnal me ngm \o consult a counsel was lndead lnlarmed and explalned to ma apphcanland Iallure olwnlcn lanlamounl m dlspuled fans or verslnns enabllng an lnlananoe favourable |o me appllcanl lo be made and also an adverse lnlerenoe agalns| Ille nasaonaenls. [36] Rehanue was made by me appllz:zn| on me use ol znnrl Sollpu v Tlmbnlln Mmlul Dalnm Mogul Malnyslu a. Yang La\n[2D22]1 LNS zm wnele me man Calm \ook me propuslhnn lllal ms lalluls lo adduae aoaonorallve evldenoe such as polloe repel‘! and remand order, amount: lo a wlllul unlrmalalng cl malenal evidence In lnal case‘ me appllcam had made speclfic allegallon that me pullce nad lallea |n accord mm mm me ngmlo oonaull and be aalanaea by a legal praclllmnar and ma: ha was navel rsleasea (tom me lnlllnl alresl unuer Ihe Dangemus nnlgs Am 1952 ml: was lalsr pul undev me an days aelenllan under s 3 0! the Dangerous Drugs (spsclal Measures) Ac1 was (As! ale). ln lhal case, lne learned Judicial Cnmmlsslaner (as Hls Lordshlp men was) round lhil male was no ac|uaI release ullhe appllcanllnereln Vmm ms delenllon at his rnsl arrest and as such ll makes me de|entlon hum the anlllal amasl and me uexenllon «mm me subsequent‘ 51 oonllnuea aelenlian ms pmmpleu lne apphcarfl ln ms amaaull In queslmn me manner or ms arrest and aelenllon lncludlng denying mm the ngnl or counsel from me firs! anesl The l-llgn caun luuna lhal there was no reply |o such allegallons made and as such ll was deemed admlned by |h9 vespondenl mersln. ln m pmlGLfifllIuEluBlTiD5PMnmA ls «ma s.n.l luvlhnrwm .. u... a vuny .. nflglnlllly mum: dnuavlnnl VI mum puns! that alas‘ the arrest of the ap ' nis wits ioogtng a poiioe report otairning mat ner husbandl tne appticant nt was not even intornieo resutting to tnerain as a missing person [371 Unhke the facts in zarnrt setepa (supra), tne respondents nereiri tiao filed an amaavit denying the apptiaants aitegatien and De1ektilSar]an Meier Potis Roeii hln Hassan nas sxptioitty stated that ttie apptioant was internied o1 nis right to consutt s Iegat representative esters and etter tne arrest under me Act. It rnust be tmrrie in mine triat tne petiee is onty duty bound to intonn the rtghl of a uetainee to eensuit a iegat replesemaltctn and not to the extent of ensuring ttiat a iegat represent ' by tria ttetainee ‘s appointed [as] It is pertinent to note tnat nownere unoei trie law a prooeourat requirement IS enaned or togiststeo tor documentary :'t/Idertce to be adduced In support ttie avermeru tnat trie oetsinse has Deen intonneo of his rignt to cunsufl and appoint a tegat representative upon tits arrest. It nanrtot be gainseio trist triers is a Corlflicl at evioanoe or lacts narein iust because me avpiicarit is saying one tning and the potipe says otherwise [39] Tnis court is satisfied ttiet tne reouirenient tor the apphcanl to be inlomted oi tiis rigrit to oonsutt a tegat representative has been tuttiiieo and more is no reason tortnis court not to believe what was aveneo to by Deleklfl sarian Meiar Polls Rosti tiin Hassan wtie had sstiegorioatty darned the avpticants attagatiens No uhhqua mmive or witnnotoing or suppresstun oteuidenoe can be oainsaio to have oeourroo neroin by tno taet tn.-st no opeurnentary evidence is proouoea The apptioant ninisett tor ttiat matter tias taiieo to prove nis auegation. To insist tor a ooounienrary euioenoe to D3 produced to support ttis svarmenl made by Ds|akItlSarjan ru p.nisuo.azusinnsprn.nia 7 «mu. s.n.i luvthnrwm be UIQG u min i... unrin.ii-r Aini. flnuavtml y. .riuria vtmxi Mejar Polls Rostt btrt Hassan would tantamount tn tnts Court creaxtng a new procedural tew This, the Coun must abstatrt [401 II is the finding at mts Cour‘ mat the mandatory pmoadural reqmrement has been oampbed wtlh by the respondenls and that the appttcattt was ttttorrnea am never denied at rtta nght under the second hmb ofan 5(3) 0! the FC In any event, the firSt tssue ratsed herein ts not a reason tor a Writ of Habeas Corpus lo be issued. The apptteartrs Contention ts unmenloncus and must be atsmisseu. nr. Slcond Ilaul [M] In regards to the second issue, n ts oonlended by the applicant Ihal ms delenltan lot more man an days atrne IPD nattg wangt Kuala Lumpur Pattee lock-up ls unlatmut as me sate Vockaup ts not gaxened tn accordance wrtn s 7 at me Pnson Am 1995 (An! 5:41) [42] 5 7(1) and s 7(!A)otAct 537 pruvnde -(1) It stteu be /ewm /or the Mtrrtster, by nbtrncatrbn in the Gazelle‘ to appbrnz look-ups at such pottce srartans and court houses as maybe specmsd W! the notification 10 be Places for the confinement Di person, remanded or sentenced to such terms or trrtprtsbnrnenz, not exceedtrrg bna month, as may be sbect‘/ted rt eacrt case. (M) In addlllon, tr shall be lawful /or me mtrtzster. by nbttnsartbrt tn ma eazeua, to apporrtt lock-ups at such pence stations and Court houses as may be spscrfisa In the not/ficanon to be places Iorthe bbrtmtemerrmrpersbns met the Prevention of crrme Act 1957 {AN 297; and the Prevention of rermrtsrrt Act 2015 (Act 759)." m ...ttsru;a.azaa.msm.ttta ,3 “Nair s.tt.t nanhnrwm be .r.... a mt, t... nngtnlflly MIMI dnunnnnl VI nF\uNQ amt [431 u rs clear that under 1 7 Act 537‘ me gazene made pursuant lherelo Is only applrcable lo Ihe following ralagonas cl person‘ r a person remanded generauy under s 117 of the CrIrmna\ Procedure Code, and u. a person sentenced bylhe com with an rmpnsanmem 0! not mare than one month [441 In addmnn the new msemon of s 7(1A)A¢:(531 appnes omy to person delamed under the Plevermun 0! Own: Am 1959 IACI 291) arm Prevenuan oi Yerrorlsm As: 2015 (Ac! him. [45] Ina lpplicanl [shad an the daclsvon by ma Hugh com in Al all Si nnlm v I: nalarn Nnulr M ya .1 din sun L-gi mm) 1 LNS an In thz| case, lhs learned JudIc1a\ cmnrnrssroner (as His Lordship then was) was 01 me mew thal ma pmisrun m s.3|A)a1 me An must be read harmcmous\y wi\h Act 537 The learned Juarcral Comrmssloner slated lunhar: «can n Mun! 130) . Mahka/nah rnr berpandangan adaran max Iepal dim (Idak munasabah hu/ahan prnak Responden bahawa orsng (ahanan :1: hawah Akla Ierssbut bolsh drlahan HI mans» mana bahagian sesuam aarai Pans Frasa aye! 7n any pa/me srarion 'dararn seksyen 3(4) bukan/ah bermakna seseorang rahanan be/eh drtahan alau dltemparkan dalam rnana-rnana kawasan dslam sesuazu nalar pans Ssmsstmya msmsr/ukan suam (empaf yang khas bag: penahanan manawvana orang fahanarv rn wmGLfimuEuB1Tsn5PM-mA “Nana s.n.r nmhnrwm a. U... a my r... ann.u-y Mn. dnunmnl VI mum war I311 Sebagai anemam, Mahkamah m. berpsndapal memandangkan pelumukan seksyerv rm) Akla Pamela 1995 t/dak msrangkumkan sake/r seseorang rananan dr bawah Akla Dadsh Barbahaya {Langkah-Langksh Psncegahan Khss) 1955, Mentsn belch member? kuasa (auihorizafran) same axis pembenan kuasa sacala umum mu secara khusus ke eras mane-mans temps! [lsrmbsuk rokap pairs) ssbaym lempa! (shaman m Izawah Akla lsrsebul (in any ems: praca aulhunzod generally or specrally by the warm’; warau bsgsrmanspun‘ pmak Responden juga gagal membuklikan ssbarang pambsnsn mus orsn Meme" bagr maksud versabm “ [45] wnn aH due respect, Ccurl takes a home m mmd Ihanhe appllcanl harem 15 delamed under s 3(1|oHhe Am u .5 deer that |he applicant does not fall under any 01 me categories menuoned m (he above The GDDVICEHI therefore Vafls under lhe de|ermon power pmsuam In 5. 3(2) and 5. 3(4) o1IheA/cl wmcn state 1(2) Any person anesred and deramed under (Ins s may be damned m pence custody lo! a panda not exceedmg sixty days wrlhuut an order ol detention hm/mg been made m respecz of mm under subs 5(1). ProvvdeL1Ihal—- (3) he man not be damned for more men Manly Iaur hours excepl wrlh ma aumomy of 5 pohco olfcev oi at above ma rank of mspecm m pvmGLfimaEuB;Tsn5PM-mA 2., «mm. Snr1I\nmhnrwH\I>e HIGH m M», .. mm., mm: flnuamnl VI mum pom! [6] True unvestugatieuu reveals that the applicant was involved wutru true aclrvlltes uru lralficklng un dangerous drugs Metnarnpttetarrurrue lusted under Part III otttue First Schedule ("mo Flru schedule") [7] on 2511 2022. the lrtqutry pincer oi the Munusliy at Home Aflalrs. Sm Hauar Bln Mohd Asnul received true rull lrrvasllgatlon report relating to true appllcanl [B] on 1 12 2022, true Inquiry emeer conducted a pruyslcal lnvesllgallcn on true epptucarut. [9] on 13.12 2023. true Inquiry omoer submlllad her report to the Deputy Muruuster Dursuaru |o s 5(4) oi the Act. [to] Having received and perused true reports lrorru the uruvestugaturug and me uruquiury ofioers, Datuk seri Dr. sheunuuuul Anuar Bln Nasarart, true Deputy Munuster issued true delertllarl order agaurusl true applicant under s 6(1)aHheAc1lor a peruod at me 12) years eoruuurueruciuug 23 12.2022. [11] On 23122022. tnspecwr Mohd Haszaruddln ruad served on true applicant tnree ongunal eepues or me detention order, allegatupn ol laas and truree copies ol Form 1 lor true purpose or true applicants representation In me Advisury apard (“tho Board"). [12] on 24.12 2022, me appllcartlwas admitted lathe FPA on true same day. wan Mend mutaru Eln waru Arumn. being me elrueer uru cruarga el tne FPA (“tho DIG") had runner explauned la true eppluearut the dsuentuon order, allegalrnrl ollacls, |he gmunds oldetentuon and true applucarul 5 rigrut to make representation lo true Edam. IN pmlGLfiflIuEuBlTifl5PM-MA we «mu. s.r.u lurthnrwlll u. .i.... e may u... nrwlnullly . dnunrtnrtl VI .ruurte wreu (it) he shall not be damned lol mom than tony slam hours except wlm me amncmy ol a Dem olrcer of or above the mnk of/issfslsnlSuDsnntsm1srllolPoflca: (c) he shall run! be detained fol mom man rolmon days unless a police omosr ol 0! above me rank 0! Depuly Superlnlerldenl has reported ms circumstances oi the arrest and dslent/on to the lnspeclor General or lo a palm olwcel designated by me /rvspeclor General m that bahalf and me lnspecm Gerlsrxl or police olllcer so ooslgnaleo by mm, as me case may be, shall fonhwnh mporl ms same (0 ms Mfnlsler (3) The pom oficer making an mvesngallon pertaining to a person arrested anddstairlsd under ms 5. shall cause a copy olme oomplm Iepad arms fnlmsflgafion to be subml'Ned— (3) lo an lnoulry olrm appafrvtad mm subs. 5m, and (La) la (he Mfnisfsn within such perlod as may be pmsclibsd by me Mil-llstur by regulamzns made under this Ac! (3) (34) l4) Any pmon dmlmd under an powers conltrnd by ml: 3. slull bl dconnd to b. in lmrul custody, Ind may no dlhinod in lny pflicn, or In -ny polico slnlon, at In any olhul Piles uuvlorlud normally or 5PIcInI/Y by Ihc Mlnlml Examlnatlon ofpsrsons acaualntsd mm me lacls and clrcumsfancss 0/ case" [Emyhasns added] m p-mouo.azoa.msm.mA «mm. my ...m.mm .. med w my me mmuny Mm. flnuamnl VI nF\|.INQ Wm! [47] Subs 3(A) or me An IS a deeming provision whlch approves detenllon nflhe apolloanl in any pnsnn or rn any polloe slallan or ln any place aulhorlsed generally or speclally by the Mlrllslel As such lha place ol delanllon pursuanl 10 subs. 3(4) ol me An cannol be subjected la lne rsqulramerll at a gazelle unner s 7 Act 537. ‘ms oourl I5 oi me consldered view men me responaenls ere enlrllea lo rely on We deeming pmvislnn in subs am, which efieclively rneens lhal me aupllcarll was deemed lo be In lawlul custody in all inalerial llmes (see Shlllrinl bin Abdullah v nml:-Ian ulonml Dlllfll Nouori. Mllnysla tors [2|l2I] 1 LN5 II42] ‘ [43] The name: meamng 01 me deeming prcvlslon unoer suns. 3(4) oi me Acl allows me appllnam at all nielenel lune, [0 be In legal or sulnoriseo cuslody and to be defialned sl any police slallcn lnckudlrlg lne IPD Dang Warlgl Police slauon Kuala Lumpur There IS no requlremen| under me Act that me place 01 delentlon lor purpose oi lnvesllgallon made mereunoerlo be speclfically gaxelted When mere 55 nu such requrrernsnl ll lollows that male is no procedural rlomoompliance arlslng herein. As sialea by Abdul Hamld Mohamad FCJ [as he men was) W Lee Kw: Sang v Tlmbalul Mnnlnri Dlllln Nogui, Malaysia 5 Ors [2005] 1 cu m: ‘/I I5 nol for ma calms lo create pronedural reqmremenls because ll rs not live funcllorl of the cams lo make law oi rules.“ r~ pmlGLfimuEiuBlTsn5PM-mA ,1 “Nun: Smul luvlhnrwm .. u... u Mr, .. nnglnlllly mm: dnuavlnnl VI srlum puns! Cunclu ' [49] Prermsed an the aloresavd, um: Court finds that me resnondenls were me to meet lhavr burden lo sausly lhns Cuurl that me smcn n rsquwemenls av ma law were me| The appllcanfs delemion was lawful and ms appncanan fora writ 01 habeas corvus ms mmlora demad mo BINVI aADA§uuDIN1 Judge Hugh com M Malays KUBVB LUNPMF Counnl to: ma Auplium Tuan Nur lzza Natasha bum Tuan Rosum Messrs Haxkal a. Cu (Kuula Lumpur) Fndurll Counul (FC) Nuur Vzham om Ismaxl logemev wilh Nur Syafiqah himi Mohamed Vusofl m WmG&fimuEuB|Tifl5PM-mA «mm. Snr1I\nmhnrwH\I>e U... w may he mmuny Hm. dnuamnl VI mum Wm! [13] on 5 1 2023, Shahrlll Ramuzari airi Abe Hamid. the prison waiaer rind served ii notice at hearing oi represeniaiioii lo the appiicani. [14] on 17 «.2023, me Board cnnvened but Ibrariini Haikai Bin Razaxi iiie caunsei rm me appiicaiii suianiiiiea inai he was just ieeeniiy appointed by me appiicaiii and thus seek an aainuinineni The Board allowed me nist adiournineni. [15] On 23 2.2023, me Board reconvened and ine eeuiisei had applied iiie 2'“ aaiauinmerii on reason being he had two (2) male in me High Courl o'1Johur Eahru on this I131: The sieoorid adjournment was EINWSUV ms: On 15 3.2023, (he Board reconveriod and had Inslrumed sergeani xriiriaiiin all Sekeran ia essisi iiie app|Ic:n| during lhe repieseiiiaiioii The apphclnl was iepreseniea by Ibrahim Haikil ain Rank [17] Aner having eonsiaeiea the represeniaiioii made by me applicant, me Beard submitted ins reeoniineiiaaueri in me Yang Di-Penuan Agoiig on 21 3.2023 Tne Eaard‘s remmmendalian was asseniea to by iiie Yang Di—PeflualV Agong on 22.3 2023. Issues Ralsmi by [Ill Applicant [131 two issues were raised by me appllrzm and [hey are as ioiiews i. The aflnluani was deprived oi his lurldimarllal ripni lo oonsuii riis DDHVISBI upon his erreiii under the Act II The appiicanrs aeieniion for more than an days ei me Pahce luck-up iii IPD Dang wanpi, Kuaie Lumpuvwas uriIi‘MuL IN VNGIJHIUEAABITIDEPM-MA a “Nair s.r.i luvihnrwm be UIQG e may i... nflfliruflly MIMI dnuaviml VI nFiuNfl Wm! Th! Fill! lllul [ml Amie oulseld ll muslbe slaled nereinlnal during lrleoral submisslon before Irlls Court and upon being lrlvlted to address lhe COUH orl lhe firs! issue, learned counsel 107 me applleanl decllned lo submll arally and inslsied lhal srle would lust rely on her wrlllen submission. Upon being imposed Ia suhmll or clarlfy only (hen learned counsel revealed that the nail Issue nad aeen venlllaled by lnen. in other applicallpns were me Federal Courl and lhls Court was lnlolmed by the same Iaamed counsel lhal the Federal Courl was ml in agreemeni wllh me submissions by lhe iPDllDil'1Li on the same firs: issue hereln in those cases This fazl was amvmsd by the learned Federal Counsel The learned Federal Counsel eilad ina fulluwlng reoenl cases (the Federal cdun Orders were allaened together VI lne Respcndenfs Bundle 0! Aulhnnlles) where on 25 7.2023 ine Federal Cour! had dlsrrllssed in. same issue ralsed and repealed again herelrl in me rollpwlng caaes: l. sairul Synhml hln Ahmad v Timbalm Monlari nalain Nageri Malayala & 2 Lagl (Rayuan Jenayah No’ 05 (HC)-45-04/2023 (3) II Mohd Vulrl bill Abd Rash|d—lwn-Tlmbalan Menleri oalam Negeri Malaysia 3. 2 Lay: (Rayuan Jenayah No‘ D5(HC)-51-05/202315) [211] ll is pi lne aensideied Vlew lnal almdugh no wnllen ludgnienl la lssued by the Federal Caurl at the lime lhls mauer Is heard, the same KSSIAS ought not bevenlilaled agaln before was com as me Federal Ccurl must have scrulinlsed lne appeal records In lnoae cases and heard me canlenuons ol pom Dames pelere arrwlrlg al ma declslorl. rneieleie, ma decision or me Federal cam is final ln nature and plnding under me IN p-niaua.azae.mam.na J “Nair Smul ruvlhnrwlll a. UIQG a may i... analn.l-l . dnuavlmr VI .nuna vtmxl pnnciple of precedents WI splle ol lhe absence 0! wnllen gmunua oi judglnenl [21] This ceun finds suppon lmm lne aeclslan ol lne own at Appeal m Lim Guan Eng v PP [2022] 4 cu 42 where In mal case, the appellanl ralseu Iwo quesllons of law perbalnmg lo (l) ma submlsslon pl slalemem elaelence pursuanl (cs. 52 0| lne Malayslan Anll-conupllan Cammlsslnn Act 2009 (MACON) (‘lllsl quesllon ol law‘) and an) an appllcallcn to nblaln a slalernenmraelance, Dursuanl lo 5. 5| cl me CFC (‘second queslmn 51 law‘) [221 The High ceun Judge .n max case dismissed me appellanra applicalicn cn me ground Ihal hath quesllons M law had been delermlned by me Federal ccun [231 secure lne coun ofhppeall unce agaln‘ me appellanl lhereln ralsed |he same sal oi quesllons pl law ln mac case in ms submlsslon relanng lc lne lust quesllon of law, lhe appellanl merem argued mal (l) ma coun cl Appeal, ln Llm Gum Eng v. PF 5 Analhlr Appoal mm suan Eng ‘), held mal 5. 62 cf lne MACCA was lnvalla as ll was incpnsislenl wllh lne provlslnns ohhe FC CFC‘) ml newever lneeeclslon ailne coun cmppeal was reversed by me Federal ceun pul lhere were no gmunds at luagn-em, renuenng i\ a norhblndlng declslon ln eeneequenl Io lhal, me vihdny of 5 s2 of me MACCA was yol la be eoncluced, and nu) only me Federal ooun could hand down a final declslon an lne salc quasllarl and. lo bring rerun lne quesllon Io lhe Feaeml Calm‘ lna lnal proceedings musl be commenced al lne Hlgh Oourl m pmlGLfifllIuEuBlTiD5PM-MA 5 «ml. Sam luvlhnrwm a. u... u vuny .. nflglnlllly mm: dnuavlnnl VI mum puns! [241 In mat same case, we second quesuon 0! law oanearned mm the wssue :11 a witness's s|aIemenl wlncn was recmded dunng mvasuganons. The ‘aw: in revauon lo the amam-nem of me w\ln9ss' stalemenl‘ under s. 51 dune cpc, was argued to have been ambiguous iouwnng nne case or sun Aliyah v. PP mm] 7 cm 27 on wmon oon|Iad\:,1ed\he deuswon m Huxdi v. PP [man] 1 LNS 29 re‘ and (M since sm Azsynn v PP (supra) was decided by lhe Courl omooeal, u was argued (ha| amy ms Fsdsra\ Court could nave a «nan say and, Ihevefure‘ the max nruceedmgs mus| be xransaaned |o the Hvgh Cuun [251 The Court or Apnea! m that case Ihwugh the Judgment av Hus Lordsmp Che Mend Ruzima Ghazah JCA had held as (oHaws* ‘{1} Kepulusan Mahkamah Persekutuan la/ah msruawab soaran lenlang kesahsn s EZASPRM Delam membsnarkan Iayuan plhak pendakwaan remaaap kepulusan Mahkamah Rayuan dalam ks: um Guan Eng, Msnkamah Psrsakutuan pm memulusksn bahaws s 52 ASPRM adalah nerperremoagsan dsn max bsrlentangan Hangar: perunmxawsmnman PP Mahkumah Persekuruan Xe/ah mombnca rekod-relmd Iazuan yang drrallkan dun mendengal somua human [Aug dlkvmuknlun om. kedua-dua an/an gum ubalum membu-I kogurua-n. clan nu kogutuun Mahkxmnh Fersekuluan mam. koytunn pug muktlmad slfatnla dan memlkar bawah glnslg du/uan we/augun Nada alasnn Irngulusan bmuus dlscdlakan m ,.no».so.ozoa.msm.n.n “Nair smm nmhnrwm .. med m mm .. nnmnmuy J . dnuumnl VII mum W (2) Pvlnslp urldang-undang nernsllsn pen-nononan bawah s, 51 Km mu unluk pfinzah/ran dokumen. termssuk rnsrldapatkarl pemyalaan saksl yang dirakam semasa sfasalan. adalah /e/as dan manlap leu yang pmyu cub: bangkllkln bukan isu baru mihllpllrl Imik. Turdapal banyak kopulusan mdenulu yang diputusknn olon mankaman di polbayll pulngm yang bolen mum Mihklmall Sosyln ildiknrl plndulrl .1en lkulsn seklrarlya bemupan derlgan s 51 KTJ Anlaranya kes Husdl dl per//lgka! Mahkamsh 7'/nggl yang dfsahkarl dwankaman Persskutuan. ksplnusan Mahkameh Persokuvuan dalam kes Data‘ sen Arlwar Ibrahim y PP clan Data‘ sn Na/lb H1 Abd Ram v PP flan kepurusan Mahkamah Rayusn l1a!am kss Sl'll‘Al‘syah [Emphasls added] [26] ln any event, albell lne leamea counsel had relucvanlly agreed to abandon the fuel lssue, INS Court finds lnal there 15 no nleril on ma same issue. [27] In summary, ll IS lna appllcanre canlenllan that ms nght |e wnsuu a counsel pl ms Chome upon belng arrested VS a ngm deeply embedded M an. 5 (J)o1lhe FC and IS applicable lp an arrest under IheAr:l ll IS argued me: no evldence or e pohce lepan nas been adduced by me pollee no show lnal such rlghl was lnlonnea lo me app|loan| and in ma absence at aocumenlary evlderlce as pmol, mew IS a meacn pl -n. 5 pl Ihe FC [23] Flrsllyl this Court finds lnal [hare Is an afidavil amnnea by me Delelml sanan Mela: Polls Rosll pm Hasssnl lne iarrestlng pfioer lfl INS case where 431 paragvaph 5 afhls afildavit. he avers mat the applicant was m wnlsumuzuaflsnfivmnmn . «we. Smnl ...nwnu be HIGH e vuny .. nnglnlllly enn. dnuavlnnl VI arlum puns! mlormad a! ms rrgm be be represemea by e caurIse\ and to contact me iarrr-xy members. The relevant pavagraph is vepmduoed -5 Men)/uk kepada pererrggarr v4, 16 dart 17 Alidavfl Pemahon Pemuhon /Ilga le/ah dfbemahu zemarrg flak Pemohon unmk dlwakm peguam darn berm/bung dsngsn ke/uarga Perrronnn wslsupun (reds kepsduan akla yang msmer/ukan pihak pa/rs belbual demrktan. Prhak pa/is /uga Iidak Pemah mengha/any Pemohon daripada merrgrrummgr den be//umpa dengan an/r ks/uargs Pamohon atsu Psguam semase d/Ianarv [291 rnerevare, me apphcanfs mntenlmn Is debunked by me avermenl ol me arresting omoer [30] Secondly \I has been stated by |he Federal cam that the ngm enshnned m me second Irma M an 5(3)o1lhc to La. nqhl |o consul! and be delended by a legal precmrer-er, cannot be e nght whvch rrruex be exercreea umruearexery after arvesl Raferance re made to me case of PP v Azml Sharovn [2015] a cu v21 where Anfin Zaklna OJ (as he men was) staked as fouows‘ 1371 m 00:’ Ah Phua. me Federal Court was concerned with me fntelpletaliun orarr 5(3), wnrcrr reads. Where a person is arrested he shall be mformed as soon ss may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal pracmraner afhis theme (as) smen LP construed mar pmvfsfcn In the following words: r~ wmGLfimuEuB1Tsn5PM-mA If «we. sen-1 nmhnrwm .. H... e my r... mrnu-y IN: dnuamnl VI mum WM vwi. respect I agree inn me rigm arm arrutod plrsnn to mnsumiis lawyer begins train the momum oumsv, but I lm oi xiu opinion um that iigm cannot be exnlcfsnd immedimiy may amsv. A balancu has to be struck betwnen me right or the invited pvlson to consul! his imyai on me one hand and on me orhnl me «my a! me palicn m prmact the pubic from wrongdoois by -ppniunding {him and collecting whikvwr evidoncc um: - alnu mm. The Inlcnsr aijusrice is as iinpomm as me innrnt of mum: pmons nnd It Is woii-known that zrimin-II eiomem: an ‘meme most oi all by tho emainry oidnluckiuri, arms: and punishment “ [Emphasis added] [31] lmpcnantly lhere is nalhmg hefure the Conn disclosing how and to What extent the pohce from me Narcotic lnvesugauan Department IPD Dang wangi, Kua\a Lumpur had hindered or obslrucled lheapplicanl from eonsumng a Vega! lepvesenlahve No naname e laid dawn m we apphcanls suwomng amdavn demonstrating now me police had at any we anei ms arrest denied his appucauon or requesnu consul! or auponnt a legs! representative or that ms iamily had ippclnled a counse\ but me GDUYISEI was denied lrom meeting the appvcan! m detention when a requesc was made [32] \n mmu Um cmn cum 5 07: v Inspemr Gononl of venue [1aaa11 ML: 29:; 1195311 LNS132,(he Supreme com had stated max denial of me ngm m oonsml mm a counsel in breach own 5 (3; al me FC mus! be shown by me detainee. In emei words, main ride on me pan IN pm\GI.fiflIuEuB‘Tifl5PM-MA ,9 mm. an.‘ ...m.mm .. LAIQ4 m mm .. mn.u.y mm: dnuumnl VII nF\uNG pom!

Tika 2.6.0 & Pytesseract-0.3.10

RA-42JSKS-5-09/2022

PERAYU YONG COHAN RESPONDEN Pendakwa Raya

Sabitan dan hukuman kesalahan di bawah perenggana (14(a) dan subseksyen 16(1) Akta Kesalahan-kesalahan Seksual Terhadap kanak-Kanak 2017-Amang seksual fizikal atas kanak-kanak oleh orang yang mempunyai hubungan amanah-Hukuman di bawah peruntukan-peruntukan Seksyen 26 dan Seksyen 27 Akta -Kredibiliti keterangan kanak-kanak dan isu percanggahan substainsal dalam keterangan-Percanggahan tersebut adalah meterial substainsal sehingga boleh menimbulkan keraguan pada kes pendakwaan dan memprejudiskan kes pembelaan-Hukuman adalah munasabah, setimpal dan tidak terlalu melampau mengambilkira faktor kepentingan awam, kepentingan dan keselamalatan kanak-kanak di negara ini dan peningkatan kes-kes kesalahan (prevelance of offence) amang seksual terhadap kanak-kanak di negara ini.

17/11/2023

YA Dr Arik Sanusi Bin Yeop Johari

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=0b0f8d07-72f9-4b6c-80d6-3942a7dc83c3&Inline=true

Microsoft Word - GOJ RAYUAN JENAYAH YONG COHAN V. PP RA-42JSKS-5-09-2022 1 DALAM MAHKAMAH TINGGI MALAYA DI KANGAR DALAM NEGERI PERLIS, MALAYSIA RAYUAN JENAYAH NO: RA-42JSKS-5-09/2022 ANTARA YONG COHAN (NO KP: 910903-02-5771) ... PERAYU DAN PENDAKWA RAYA ... RESPONDEN [DALAM MAHKAMAH SESYEN DI KANGAR DALAM NEGERI PERLIS, MALAYSIA PERBICARAAN JENAYAH NO: RA-62JSK-1-08/2019 ANTARA PENDAKWA RAYA DAN YONG COHAN (NO KP: 910903-02-5771) ... ORANG KENA TUDUH] 17/11/2023 11:38:31 RA-42JSKS-5-09/2022 Kand. 41 S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 PENGHAKIMAN PENDAHULUAN [1] Perayu telah memfailkan rayuan ini kerana tidak berpuas hati dengan keputusan Hakim Mahkamah Sesyen Kangar yang bijaksana (“HMS”) yang telah mensabitkan kesalahan Perayu di bawah perenggan 14(a) dan subseksyen 16(1) Akta Kesalahan-Kesalahan Seksual Terhadap Kanak- Kanak 2017 [Akta 792] (“Akta KKSTKK”) dan mengenakan hukuman ke atas Perayu di bawah peruntukan-peruntukan tersebut serta seksyen 26 dan seksyen 27 Akta KKSTKK. [2] Hukuman yang dikenakan oleh HMS ke atas Perayu ialah hukuman penjara selama 10 tahun dari tarikh 29/8/2022 dan 3 kali sebatan rotan serta perintah untuk menjalani kaunseling pemulihan dalam tempoh penahanannya dan pengawasan polis selama 2 tahun bermula sebaik selepas habis tempoh hukuman yang dijatuhkan terhadap Perayu menurut seksyen 26 dan seksyen 27 Akta KKSTKK. S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 [3] Setelah mendengar dan mempertimbangkan rayuan Perayu tersebut, Mahkamah ini telah menolak rayuan Perayu dan mengekalkan keseluruhan keputusan HMS tersebut. LATAR BELAKANG [4] Perayu telah dituduh dengan Pertuduhan di bawah perenggan 14(a) dan subseksyen 16(1) Akta KKSTKK seperti yang berikut: “PERTUDUHAN: BAHAWA KAMU PADA 22/09/2018 JAM LEBIH KURANG 9.00 MALAM BERTEMPAT DI BILIK SEBUAH RUMAH BERALAMAT NO 23 LORONG SERI SATU, TAMAN PERLIS, 01000, KANGAR, PERLIS DALAM DAERAH KANGAR, DALAM NEGERI PERLIS, SEBAGAI SEORANG GURU YANG MEMPUNYAI HUBUNGAN AMANAH TERHADAP XXXXXXXXXX, NO. KP: XXXXXXXXXX BAGI MAKSUD SEKSUAL TELAH MELAKUKAN AMANG SEKSUAL FIZIKAL DENGAN MENYENTUH BAHAGIAN KEMALUAN KANAK-KANAK XXXXXXXXXX, NO. KP: XXXXXXXXXX BERUMUR 12 TAHUN, OLEH YANG DEMIKIAN KAMU TELAH MELAKUKAN SUATU KESALAHAN YANG BOLEH DIHUKUM DI BAWAH SEKSYEN 14(a) AKTA KESALAHAN-KESALAHAN SEKSUAL TERHADAP KANAK-KANAK 2017 DAN DI BAWAH SEKSYEN 16(1) AKTA KESALAHAN-KESALAHAN SEKSUAL TERHADAP KANAK-KANAK 2017 HUKUMAN SEKSYEN 14(a) AKTA KESALAHAN-KESALAHAN SEKSUAL TERHADAP KANAK-KANAK 2017: S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 JIKA DISABITKAN KESALAHAN HENDAKLAH DIHUKUM DENGAN PEMENJARAAN SELAMA TEMPOH TIDAK MELEBIHI DUA PULUH TAHUN, DAN BOLEH JUGA DIHUKUM DENGAN HUKUMAN SEBAT. HUKUMAN SEKSYEN 16(1) AKTA KESALAHAN-KESALAHAN SEKSUAL TERHADAP KANAK-KANAK 2017: PENJARA SELAMA TEMPOH TIDAK MELEBIHI LIMA TAHUN DAN HENDAKLAH DIHUKUM DENGAN HUKUMAN SEBAT TIDAK KURANG DARIPADA DUA SEBATAN.”. [5] Perenggan 14(a) dan subseksyen 16(1) Akta KKSTKK memperuntukkan seperti yang berikut: “Amang seksual fizikal atas kanak-kanak 14. Mana-mana orang yang, bagi maksud seksual – (a) menyentuh mana-mana bahagian badan seseorang kanak- kanak; (b) …; (c) …; atau (d) …, melakukan suatu kesalahan dan hendaklah, apabila disabitkan, dihukum dengan pemenjaraan selama tempoh tidak melebihi dua puluh tahun dan boleh juga dihukum dengan hukuman sebat.”. S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 “Orang yang mempunyai hubungan amanah 16. (1) Jika seseorang yang melakukan mana-mana kesalahan di bawah Akta ini atau mana-mana kesalahan yang dinyatakan dalam Jadual terhadap seseorang kanak-kanak, mempunyai hubungan amanah dengan kanak-kanak itu, orang itu hendaklah, sebagai tambahan kepada hukuman yang dia boleh dikenakan bagi kesalahan itu, dihukum dengan pemenjaraan selama tempoh tidak melebihi lima tahun dan hendaklah juga dihukum dengan hukuman sebat tidak kurang daripada dua sebatan.”. [6] Perayu telah tidak mengaku salah atas Pertuduhan tersebut dan minta dibicarakan di Mahkamah Sesyen Kangar. [7] Seramai lima orang saksi telah dipanggil untuk memberi keterangan di peringkat kes pendakwaan, iaitu XXXXX (Mangsa) (SP1), Sew Chit Hann (Ibu kandung Mangsa) (SP2), Cikgu Sow Lee Fen (Guru kelas Mangsa) (SP3), Koperal Mohd Nasriq Amir bin Mohd Nasir (Jurufoto) (SP4) dan Inspektor Muhammad Nur bin Abdul Samad (Pegawai Penyiasat) (SP5). [8] Di akhir kes pendakwaan, HMS mendapati pihak pendakwaan telah berjaya membuktikan suatu kes prima facie terhadap Perayu bagi Pertuduhan di bawah perenggan 14(a) dan subseksyen 16(1) Akta KKSTKK tersebut. Oleh itu, Perayu telah diperintahkan untuk membela diri di bawah Pertuduhan tersebut. S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 [9] Setelah dipanggil untuk membela diri, Perayu telah memilih untuk memberi keterangan secara bersumpah dan telah mengemukakan dua orang saksi pembelaan, iaitu Perayu (SD1) dan Lee Xiong Hei (bekas pelajar tuisyen Perayu) (SD2). [10] Di akhir kes pembelaan, HMS mendapati pihak pembelaan telah gagal menimbulkan sebarang keraguan yang munasabah terhadap kes pendakwaan. [11] Oleh itu, HMS telah memutuskan di akhir kes bahawa pihak pendakwaan telah berjaya membuktikan kesnya melampaui keraguan yang munasabah terhadap Perayu bagi Pertuduhan di bawah perenggan 14(a) dan subseksyen 16(1) Akta KKSTKK tersebut. [12] Sehubungan dengan itu, HMS telah mensabitkan kesalahan Perayu sepertimana Pertuduhan tersebut dan mengenakan hukuman penjara selama 10 tahun dari tarikh 29/8/2022 dan 3 kali sebatan rotan ke atas Perayu serta perintah untuk menjalani kaunseling pemulihan dalam tempoh penahanannya dan pengawasan polis selama 2 tahun bermula sebaik selepas habis tempoh hukuman yang dijatuhkan terhadap Perayu berdasarkan seksyen 26 dan seksyen 27 Akta KKSTKK. Atas permohonan S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 Perayu, HMS telah membenarkan pelaksanaan hukuman tersebut ditangguhkan. [13] Perayu kemudiannya telah memfailkan rayuan ke Mahkamah ini terhadap keseluruhan keputusan HMS tersebut. ISU UNDANG-UNDANG YANG BERBANGKIT [14] Isu undang-undang yang berbangkit dalam rayuan ini adalah seperti yang berikut: (a) sama ada pihak pendakwaan berjaya membuktikan secara prima facie intipati atau elemen penting Pertuduhan tersebut di akhir kes pendakwaan, iaitu – (i) SP1 adalah seorang kanak-kanak; (ii) Perayu telah menyentuh bahagian badan SP1, iaitu kemaluan SP1; (iii) sentuhan Perayu dibuat bagi maksud seksual; dan S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 (iv) Perayu sebagai guru mempunyai hubungan amanah dengan SP1; (b) sama ada pihak pembelaan berjaya menimbulkan keraguan yang munasabah terhadap kes pendakwaan di akhir kes pembelaan; (c) sama ada pihak pendakwaan berjaya membuktikan suatu kes melampaui keraguan yang munasabah terhadap Perayu di akhir kes bagi Pertuduhan tersebut; dan (d) sama ada hukuman-hukuman yang dikenakan ke atas Perayu adalah munasabah, setimpal dan selaras dengan undang- undang. ANALISIS, DAPATAN DAN KEPUTUSAN MAHKAMAH INI Isu Pertama [15] Mengenai Isu Pertama, Mahkamah ini bersetuju dengan dapatan HMS bahawa pihak pendakwaan telah berjaya membuktikan secara prima facie S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 keempat-empat intipati atau elemen Pertuduhan tersebut di akhir kes pendakwaan. Oleh itu, HMS tidak melakukan apa-apa kesilapan semasa memerintahkan Perayu untuk membela diri di bawah Pertuduhan tersebut. Alasan Mahkamah ini adalah seperti di bawah. [16] Pertama, mengenai elemen pertama di atas, berdasarkan Sijil Kelahiran SP1 (Ekshibit P10) dan keterangan SP5 (Pegawai Penyiasat), yang mana tidak dicabar oleh pihak pembelaan, umur SP1 semasa kejadian tersebut berlaku ialah 12 tahun. Memandangkan SP1 ketika itu berumur di bawah 18 tahun, maka SP1 adalah seorang kanak-kanak menurut subseksyen 2(1) Akta KKSTKK. [17] Oleh itu, Mahkamah ini berpuas hati dan bersetuju dengan HMS bahawa elemen pertama tersebut telah berjaya dibuktikan secara prima facie oleh pihak pendakwaan. [18] Kedua, mengenai elemen kedua dan ketiga di atas, berdasarkan fakta kes dan keterangan oleh saksi-saksi pendakwaan, Mahkamah ini mendapati HMS telah membuat dapatan yang betul apabila memutuskan pihak pendakwaan telah berjaya membuktikan secara prima facie bahawa Perayu telah melakukan amang seksual fizikal ke atas SP1 dengan menyentuh S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 bahagian kemaluan SP1 bagi maksud seksual, iaitu sepertimana Pertuduhan tersebut. Dapatan HMS tersebut adalah berdasarkan fakta dan keterangan berikut: (a) pada hari dan masa kejadian tersebut, SP1 sedang belajar tuisyen dengan Perayu di dalam bilik Perayu. Pintu bilik itu berada dalam keadaan tertutup dan hanya Perayu dan SP1 sahaja yang berada di dalam bilik itu ketika itu. Bilik itu mempunyai cahaya lampu dan boleh nampak dengan terang; (b) semasa sedang belajar tersebut, Perayu pada mulanya telah meletakkan tangan kanannya di perut SP1 di bahagian luar baju SP1 dan kemudiannya di kemaluan SP1 di bahagian luar seluar yang dipakai oleh SP1 selama 5 minit; (c) SP1 merasa tidak selesa dan tidak suka dengan perbuatan Perayu tersebut; (d) Perayu kemudiannya telah memasukkan tangan kanannya ke dalam seluar SP1 sehingga sampai ke bahagian dalam seluar S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 dalam SP1 dan telah menggosok kemaluan SP1 selama 10 minit; (e) SP1 nampak tangan Perayu masuk ke bahagian dalam seluar dalamnya dan dapat merasa tangan Perayu semasa Perayu menggosok kemaluannya; (f) SP1 merasa tidak selesa dengan perbuatan Perayu tersebut dan telah mengangkat sedikit kakinya dan mengepit kakinya; (g) SP1 dapat mengecam Perayu secara positif di Mahkamah sebagai guru tuisyen yang telah menggosok kemaluannya; dan (h) keterangan SP1 tentang perbuatan Perayu memasukkan tangan kanannya ke dalam seluar dalam SP1 dan telah menggosok kemaluan SP1 tersebut telah disokong oleh keterangan SP2 dan SP3. Dalam keterangan SP2 dan SP3, mereka mengesahkan bahawa SP1 telah mengadu dan menceritakan kepada mereka tentang perbuatan Perayu ke atas SP1 pada hari kejadian tersebut, iaitu sama dan konsisten sepertimana keterangan SP1 tersebut. S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 [19] Memandangkan SP1 dapat menerangkan dan menghuraikan perbuatan Perayu ke atas SP1 pada hari kejadian tersebut dengan jelas dan terperinci dan keterangan SP1 tersebut adalah konsisten, kukuh dan meyakinkan (cogent and overwhelming evidence), tidak goyah (not shaken) dan gagal disangkal oleh pihak pembelaan serta disokong oleh keterangan SP3 dan SP2, maka pada pendapat Mahkamah ini, SP1 adalah seorang saksi yang kredibel dan boleh dipercayai dan tiada sebab untuk Mahkamah menolak dan tidak mempercayai keterangan SP1 tersebut. [20] Oleh itu, pada pendapat Mahkamah ini, dapatan dan keputusan HMS memanggil Perayu untuk membela diri tersebut adalah betul dan tepat dan selaras dengan undang-undang. [21] Selanjutnya, berdasarkan fakta dan keterangan dalam kes ini, adalah menjadi dapatan Mahkamah ini bahawa perbuatan Perayu memasukkan tangan kanannya ke dalam seluar dalam SP1 dan menggosok kemaluan SP1 dengan SP1 berasa tidak selesa dan tidak suka dengan perbuatan SP1 tersebut adalah terjumlah kepada perbuatan menyentuh bahagian badan kanak-kanak, iaitu kemaluan SP1, bagi maksud seksual sepertimana yang diperuntukkan dalam bahagian Huraian 1 dan Huraian 2 seksyen 14 Akta KKSTKK seperti di bawah – S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 “Amang seksual fizikal atas kanak-kanak 14. Mana-mana orang yang, bagi maksud seksual – (a) menyentuh mana-mana bahagian badan seseorang kanak- kanak; (b) …; (c) …; atau (d) …, melakukan suatu kesalahan dan hendaklah, apabila disabitkan, dihukum dengan pemenjaraan selama tempoh tidak melebihi dua puluh tahun dan boleh juga dihukum dengan hukuman sebat. Huraian 1 – Perbuatan menyentuh boleh melibatkan perbuatan menyentuh dengan menggunakan mana-mana bahagian badan atau dengan suatu objek dan boleh dilakukan melalui apa-apa sahaja termasuk apa-apa sahaja yang dipakai oleh orang yang menyentuh atau kanak-kanak yang disentuh. Huraian 2 – Dalam menentukan apakah yang menjadi maksud seksual, mahkamah boleh menimbangkan, antara lain, bahagian badan yang disentuh, sifat dan takat perbuatan menyentuh atau kontak fizikal dan semua hal keadaan lain yang berkenaan dengan perlakuan itu.”. [22] Berdasarkan alasan-alasan di atas, Mahkamah ini mendapati HMS tidak melakukan sebarang kesilapan dalam memanggil Perayu untuk membela diri di bawah Pertuduhan tersebut. Justeru, adalah tidak wajar S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 untuk Mahkamah ini mengganggu dan campur tangan dalam dapatan dan keputusan HMS tersebut. [23] Prinsip undang-undang mengenai campur tangan mahkamah yang mendengar rayuan (appellate intervention) terhadap dapatan fakta yang dibuat oleh hakim bicara adalah jelas dan mantap. Dalam kes Parlan Dadeh v. Public Prosecutor [2009] 1 CLJ 717, Augustine Paul FCJ yang menyampaikan penghakiman Mahkamah Persekutuan telah memutuskan seperti yang berikut: “[48] … It is settled law that this is no part of the function of an appellate court. The making of a finding of fact is a function exclusively reserved by the law to the trial court (see PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457). What an appellate court can do is to review findings of fact made by a trial court in accordance with principles which are well settled. In this regard reference may be made to Herchun Singh & Ors v. PP [1969] 2 MLJ 209 where Ong Hock Thye CJ said at p 211: An appellate court should be slow in disturbing such finding of fact arrived at by the judge, who had the advantage of seeing and hearing the witness, unless there are substantial and compelling reasons for disagreeing with the finding: see Sheo Swarup v. King-Emperor AIR [1934] PC 227. [49] In Ye Wei Gen v. PP [1999] 4 SLR 101 Yong Pung How CJ said at pp 107- 108: S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 It is trite law that an appellate court will be slow to overturn the trial judge’s finding of fact unless it can be shown that his decision was plainly wrong or against the weight of the evidence before him: Tan Chow Soo v. Ratna Ammal [1969] 2 MLJ 49, Lim Ah Poh v. PP [1992] 1 SLR 713, Ng Kwee Seng v. PP [1997] 3 SLR 205, Yap Giau Beng Terence v. PP [1998] 3 SLR 656 and Syed Jafaralsadeg bin Abdul Kadir v. PP [1998] 3 SLR 788. These cases thus stand for the principle that findings of fact by the trial judge are prima facie correct unless there are very good grounds for disturbing them. [50] More recently in Che Omar Mohd Akhir v. PP [2007] 3 CLJ 281 Nik Hashim FCJ in writing for this court at p 294: It is trite law that an appellate court should be slow in disturbing a finding of facts by the trial judge unless such finding is clearly against the weight of evidence which is not the case here.”. [Penekanan ditambah] [24] Dalam kes Mohd Yusri bin Mangsor & Anor v Public Prosecutor and another appeal [2014] 4 MLJ 875 pula, Zawawi Salleh JCA (pada ketika itu) semasa menyampaikan keputusan Mahkamah Rayuan telah menyatakan bahawa – “[4] … We are mindful that this is a factual based appeal. It is trite that an appellate court will be slow to interfere with the findings of facts and judicial appreciation of the facts by the trial court to which the law entrusts the primary task of evaluation of the evidence. However, there are exceptions. Where: (a) the judgment is based upon a wrong premise of fact or of law; (b) there was insufficient judicial appreciation by the trial judge of the evidence of circumstances placed before him; S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 (c) the trial judge has completely overlooked the inherent probabilities of the case; (d) that the course of events affirmed by the trial judge could not have occurred; (e) the trial judge had made an unwarranted deduction based on faulty judicial reasoning from admitted or established facts; or (f) the trial judge had so fundamentally misdirected himself that one may safely sat that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same conclusion, then an appellate court will intervene to rectify that error so that injustice is not occasioned, then an appellate court will intervene to rectify that error so that injustice is not occasioned (see Perembun (M) Sdn Bhd v Conlay Construction Sdn Bhd [2012] 4 MLJ 149 (CA); Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 395 (CA); [1996] 4 CLJ 545 (CA) ).”. [Penekanan ditambah] [25] Berdasarkan nas-nas undang-undang di atas, memandangkan keputusan HMS memanggil Perayu untuk membela diri terhadap Pertuduhan tersebut adalah betul dan tepat dari segi fakta dan undang- undang, maka tiada keperluan untuk Mahkamah ini campur tangan dan mengganggu dapatan dan keputusan HMS tersebut. [26] Selanjutnya, pihak pembelaan ada membangkitkan isu bahawa terdapatnya keraguan tentang jenis seluar yang dipakai oleh SP1 pada hari S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 kejadian tersebut, iaitu sama ada seluar pendek jenis track yang bergetah di pinggang atau seluar pendek jenis cotton jeans yang berzip. Ini kerana, menurut pihak pembelaan, SP1 telah memberi dua jawapan yang berbeza kepada soalan Q73 dan Q74 semasa pemeriksaan balas, iaitu SP1 telah menjawab betul apabila ditanya sama ada dia memakai track short dan menjawab setuju apabila ditanya sama ada dia memakai seluar pendek cotton jeans dengan zip (rujuk Q73&A dan Q74&A, Pemeriksaan Balas SP1 di perenggan 28 di bawah). [27] Mengenai kredibiliti dan keterangan SP1 dalam kes ini, adalah menjadi dapatan HMS bahawa walaupun SP1 adalah seorang kanak-kanak, SP1 adalah seorang saksi yang kredibel dan boleh dipercayai dan tiada percanggahan substantial dalam keterangannya. Jikapun ada, ia hanyalah percanggahan kecil (minor) yang tidak menjejaskan keseluruhan keterangan SP1. [28] Berhubung dengan isu ini, untuk menentukan jenis seluar yang dipakai oleh SP1 semasa kejadian tersebut, pada pendapat Mahkamah ini, keterangan SP1 dan SP2 adalah relevan dan penting dan perlu dilihat dan dinilai secara keseluruhan (in totality). Bahagian keterangan SP1 dan SP2 yang relevan mengenai isu ini adalah seperti yang berikut: S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 a) Keterangan SP1 Pemeriksaan Utama “Q87 Apa pakaian kamu pakai pada masa itu? A T-shirt. Seluar pendek jenis track. Q88 Pinggang seluar itu bagaimana? A Getah.”. Pemeriksaan Balas “Q73 Kamu pakai track short, tiada zip, betul? A Betul. Q74 Pada masa itu kamu pakai seluar pendek cotton jeans dengan zip, setuju? A Setuju.”. S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 b) Keterangan SP2 Pemeriksaan Utama “Q49 Kamu ingat dia pakai apa? A Seluar tuisyen memang semua saya beli short pants. Yang bergetah. Q50 Malam itu dia pakai seluar ini? A Ya.”. Pemeriksaan Balas “Q27 Pada masa kejadian pakaian Yew Shi cotton jeans dengan zip, setuju? A Short pant, tiada, tidak pernah beli, dia tiada.”. Pemeriksaan Semula “Q4 Ada kamu beli seluar cotton zip untuk Yew Shi? A Tiada. S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 Q5 Dia ada seluar jenis ini? A Tiada.”. [29] Berdasarkan keterangan SP1 dan SP2 di perenggan 28 di atas, khususnya keterangan SP2 yang menyatakan bahawa beliau tidak pernah membelikan seluar pendek jenis cotton jeans dengan zip untuk SP1, Mahkamah ini mendapati terdapat keterangan yang kukuh, cukup dan konsisten bahawa jenis seluar yang dipakai oleh SP1 pada hari kejadian tersebut ialah seluar pendek jenis track yang bergetah di pinggang dan bukannya seluar pendek jenis cotton jeans yang berzip. [30] Oleh itu, walaupun terdapat perbezaan dalam keterangan SP1 pada jawapan kepada soalan Q73 dan Q74 tersebut, namun ia bukanlah percanggahan yang material dan substantial sehingga menjejaskan dan meruntuhkan keseluruhan kes pendakwaan terhadap Perayu sepertimana dapatan HMS tersebut. [31] Mengenai isu ini, undang-undang adalah mantap bahawa dalam sesuatu perbicaraan, percanggahan keterangan saksi-saksi tidak dapat dielakkan. Namun, Mahkamah perlu melihat sama ada percanggahan tersebut adalah material dan substantial sehingga boleh menimbulkan S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 keraguan pada kes pendakwaan dan memprejudiskan kes pembelaan (lihat kes Desilva v PP [1964] MLJ 81; Khoon Chye Hin v Public Prosecutor [1961] MLJ 105b; Mohamed Alias v PP [1983] 2 MLJ 172; Pie Bin Chin v PP [1985] 1 MLJ 234; Andy Bagindah v. PP [2000] 3 CLJ 289; Razali Silah v. PP [2019] 1 LNS 1508). [32] Dalam kes Mohamed Alias v PP (supra), Charles Ho J (pada ketika itu) telah memutuskan seperti yang berikut: “… The fact that there are discrepancies in a witness’ testimony does not straight-away make him an unreliable witness and make the whole of his evidence unacceptable. It is open to the court having observed the demeanour of the witness and after careful consideration of such discrepancies to accept parts of the witness’ evidence if it considers them to be true. It is important, in my view, for the trial Magistrate to state clearly whether the testimony of a certain witness whom he or she considers as unreliable is to be disregarded completely. In considering the discrepancies the court should take into account the educational background and experience of the witness and whether the witness is describing events which have taken place recently or a long time ago and the demeanour.”. [Penekanan ditambah] [33] Dalam kes Andy Bagindah v. PP (supra) pula, Shaik Daud Ismail JCA yang menyampaikan keputusan Mahkamah Rayuan telah menyatakan di bahagian Diputuskan bahawa – S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 “[2] It was for the trial judge to consider whether the discrepancies and contradictions in the evidence of the prosecution’s witnesses were material. Since the trial judge had found that they were not, an appellate court, not having seen and heard the said witnesses, should not interfere with his findings on their credibility.”. [Penekanan ditambah] [34] Berdasarkan alasan-alasan di atas adalah jelas bahawa seluar yang dipakai oleh SP1 pada masa kejadian tersebut adalah seluar pendek jenis track yang bergetah di pinggang. Oleh itu, pada pendapat Mahkamah ini, tidak timbul keraguan tentang jenis seluar yang dipakai oleh SP1 pada hari kejadian tersebut, sepertimana yang dihujahkan oleh pihak pembelaan. [35] Selanjutnya, mengenai permohonan pihak pembelaan untuk merujuk SP1 kepada pakar psikiatri atau ahli psikologi seperti di Lampiran 53, Mahkamah ini mendapati HMS tidak melakukan apa-apa kesilapan dalam menolak Lampiran 53 tersebut kerana pihak pembelaan gagal mengemukakan apa-apa bukti untuk menunjukkan SP1 mengalami gangguan mental. Oleh itu, permohonan seperti di Lampiran 53 tersebut adalah tidak bermerit dan wajar ditolak oleh oleh HMS. [36] Mengenai isu kebolehterimaan keterangan SP1 yang dibangkitkan oleh pihak pembelaan, berdasarkan inkuiri awal yang dibuat oleh HMS asal S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 kes ini ke atas SP1, seksyen 133A Akta Keterangan 1950 [Akta 56], seksyen 18 Akta KKSTKK, keterangan bersumpah SP1 dan keterangan sokongan oleh SP2 dan SP3, Mahkamah ini berpendapat bahawa SP1 telah memenuhi syarat kelayakan untuk memberi keterangan sebagai kanak- kanak di Mahkamah dan keterangannya boleh diterima oleh Mahkamah. [37] Dalam kes ini, memandangkan keterangan SP1 yang diberikan secara bersumpah adalah konsisten, tidak goyah dan disokong oleh keterangan SP2 dan SP3, Mahkamah ini bersetuju dengan dapatan HMS bahawa SP1 adalah seorang saksi yang kredibel, kompeten dan boleh dipercayai, dan oleh itu, keterangan SP1 adalah kredibel dan boleh diterima oleh Mahkamah (rujuk kes PP lwn. Mohammad Awari Ahmad dan Satu Lagi Kes [2018] 1 LNS 976; Razali Silah v. PP (supra); PP v. Muhammad Shan Abdullah [2020] 1 LNS 2067; Mohd Rasul Mat Lasi v. PP [2021] 1 LNS 1737). [38] Justeru, pada pendapat Mahkamah ini, hujahan pihak pembelaan bahawa keterangan SP1 tidak harus diterima oleh Mahkamah adalah tidak bermerit dan tidak berpaksikan kepada prinsip undang-undang mantap mengenai pemberian keterangan oleh kanak-kanak di Mahkamah. S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 [39] Berdasarkan alasan-alasan di atas, Mahkamah ini mendapati dapatan HMS bahawa elemen kedua dan ketiga tersebut telah berjaya dibuktikan secara prima facie oleh pihak pendakwaan adalah betul dan tepat dari segi undang-undang. [40] Ketiga, mengenai elemen keempat di atas, berdasarkan keterangan SP1, SP2 dan SP3, Mahkamah ini bersetuju dengan dapatan HMS bahawa sebagaimana yang diperuntukkan di bawah subseksyen 16(1) dan perenggan 16(2)(c) Akta KKSTKK, pihak pendakwaan berjaya membuktikan secara prima facie bahawa hubungan Perayu dengan SP1 adalah antara guru dengan pelajar dan sebagai guru tuisyen, Perayu telah diamanahkan oleh SP2 untuk mengajar tuisyen kepada SP1. [41] Sebagai rujukan, subseksyen 16(1) dan perenggan 16(2)(c) Akta KKSTKK memperuntukkan seperti yang berikut: “Orang yang mempunyai hubungan amanah 16. (1) Jika seseorang yang melakukan mana-mana kesalahan di bawah Akta ini atau mana-mana kesalahan yang dinyatakan dalam Jadual terhadap seseorang kanak-kanak, mempunyai hubungan amanah dengan kanak-kanak itu, orang itu hendaklah, sebagai tambahan kepada hukuman yang dia boleh dikenakan bagi kesalahan itu, dihukum dengan pemenjaraan selama tempoh tidak melebihi lima tahun dan hendaklah juga dihukum dengan hukuman sebat tidak kurang daripada dua sebatan. S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 (2) Dalam seksyen ini, seseorang dikatakan mempunyai hubungan amanah dengan seseorang kanak-kanak jika kanak-kanak itu berada di bawah pemeliharaan, pengawasan atau kuasanya, termasuk tetapi tidak terhad kepada– (a) …; (b) …; (c) guru, pensyarah atau warden sesuatu tadika, sekolah, institusi pengajian tinggi awam atau institusi pengajian tinggi swasta; (d) …; (e) …; dan (f) … .”. [42] Oleh itu, Mahkamah ini berpuas hati dan mendapati pihak pendakwaan telah berjaya membuktikan elemen keempat tersebut secara prima facie. [43] Berdasarkan alasan-alasan di atas, Mahkamah ini menjawab Isu Pertama tersebut sebagai ya, iaitu pihak pendakwaan telah berjaya membuktikan kesemua elemen penting Pertuduhan tersebut secara prima facie di akhir kes pendakwaan. S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 Isu Kedua [44] Mengenai Isu Kedua, setelah Mahkamah ini meneliti keterangan Perayu dan SD2, Mahkamah ini bersetuju dengan dapatan HMS bahawa segala keterangan dan pembelaan Perayu hanyalah bersifat rekaan, penafian kosong dan sesuatu yang difikirkan kemudian (afterthought) semata-mata kerana ia tidak pernah dibangkitkan semasa kes pendakwaan, manakala keterangan SD2 pula langsung tidak membantu kes pembelaan. Ini kerana, selain tidak berada di tempat kejadian tersebut, keterangan SD2 langsung tidak berkaitan dengan kejadian yang berlaku ke atas SP1 pada hari kejadian tersebut. [45] Oleh itu, Mahkamah ini bersetuju dengan dapatan HMS bahawa keterangan Perayu dan SD2 tersebut telah gagal menimbulkan keraguan yang munasabah terhadap kes pendakwaan. Antara dapatan dan alasan HMS mengenai pembelaan Perayu seperti dalam Alasan Penghakimannya adalah seperti yang berikut: “44. Mahkamah pada peringkat ini memutuskan bahawa pembelaan OKT adalah satu pembelaan kosong (bare denial) dan tidak konsisten. Hal ini kerana atas alasan-alasan seperti berikut: S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 45. i. Daripada keterangan OKT sendiri, OKT mengaku bahawa OKT pada masa dan waktu kejadian iaitu pada 22.9.2018 jam lebih kurang 9.00 malam memang berada bersama- sama dengan mangsa, SP1 di tempat kejadian. Apa yang lebih menarik, OKT juga ada menyatakan sekiranya dia ada melakukan perbuatan menyentuh kemaluan tersebut, ianya lebih kepada berbentuk hukuman dan dapat menarik balik perhatian pelajar di dalam kelas. Mahkamah tidak dapat menerima alasan ini. OKT merupakan seorang bekas guru sekolah, sudah pasti maklum tentang peraturan yang melarang mana-mana guru untuk menyentuh anggota badan pelajar, khasnya bahagian kemaluan. ii. Tiada keterangan langsung sama ada di peringkat kes pendakwaan mahupun peringkat pembelaan bahawa SP2, iaitu ibu SP1 adalah seorang yang obsess atau apa yang OKT gelar sebagai control freak. Yang ada hanyalah semata-mata keterangan daripada OKT sendiri semasa peringkat membela diri. Jika benarlah SP2 adalah seorang yang obsess atau control freak sudah tentu SP2 tidak akan S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 menghantar anaknya ke kelas tuisyen yang dikendalikan oleh OKT. iii. Keterangan SD2, iaitu Lee Xiong Heh bekas pelajar tuisyen kepada OKT tidak banyak membantu. Malah, SD2 mengesahkan eksibit kes pendakwaan, iaitu gambar rumah tempat kejadian P1 (1),(5),(6),(7) dan (8) adalah gambar rumah dan bilik di mana OKT menjalankan kelas tuisyen. Walau bagaimanapun, SD2 tidak pernah pada bila-bila masa ada bersama OKT dan SP1 semasa tarikh dan masa kejadian iaitu pada jam lebih kurang 9.00 malam, 22.09.2018. 46. Selain itu, keterangan daripada OKT juga adalah keterangan yang difikirkan semula (after-thought) yang semata-mata bertujuan untuk menyelamatkan dirinya daripada pertuduhan ini. Hal ini kerana atas alasan seperti berikut: i. Tiada sebarang cadangan soalan daripada peguambela terhadap SP2, ibu SP1 bahawa SP2 adalah seorang yang obsess atau control freak. Hal ini hanya timbul semasa S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 OKT memberíkan keterangan peringkat bela diri. Juga tiada cadangan soalan yang sama kepada pegawai penyiasat SP5 berkenaan perkara tersebut. ii. Juga tiada sebarang cadangan daripada peguambela terhadap SP3, cikgu SP1 bahawa SP3 adalah berdendam dan tidak berpuas hati dengan OKT kononnya SP3 telah merampas para pelajarnya. SP3 mengajar subjek yang berbeza, iaitu Bahasa Cina di sekolahnya, sedangkan OKT mengajar Bahasa Inggeris. Malah, kenapa perlu menunggu sehingga saat-saat akhir, iaitu 9 bulan untuk mereka-reka cerita tersebut jika benar SP3 telah merampas para pelajarnya. iii. Tiada keterangan untuk menunjukkan bahawa SP1 berdendam dengan OKT. SP1 telah hadir ke kelas tuisyen OKT hampir 9 bulan, sepanjang tahun 2018, hanya setelah kejadian tersebut berlaku, barulah SP1 tidak pergi ke kelas tuisyen OKT. S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 47. Berdasarkan alasan-alasan di atas, maka mahkamah dengan ini berpuas hati dan memutuskan pihak pendakwaan telah berjaya membuktikan kesnya melampaui keraguan yang munasabah terhadap OKT. Oleh itu, mahkamah dengan ini mendapati OKT adalah salah dan disabitkan dengan pertuduhan pindaan tersebut.”. [46] Berdasarkan alasan-alasan di atas, Mahkamah ini menjawab Isu Kedua tersebut sebagai tidak, iaitu pihak pembelaan tidak berjaya menimbulkan keraguan yang munasabah terhadap kes pendakwaan di akhir kes pembelaan. Isu Ketiga [47] Mengenai Isu Ketiga, memandangkan pihak pendakwaan telah berjaya membuktikan suatu kes prima facie terhadap Perayu bagi Pertuduhan tersebut di akhir kes pendakwaan dan Perayu telah gagal menimbulkan sebarang keraguan yang munasabah terhadap Pertuduhan tersebut di akhir kes pembelaan, maka berdasarkan undang-undang yang mantap, Mahkamah ini bersetuju dengan dapatan HMS bahawa pihak pendakwaan telah berjaya membuktikan suatu kes melampaui keraguan yang munasabah terhadap Perayu bagi Pertuduhan tersebut di akhir kes. S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 [48] Oleh itu, pada pendapat Mahkamah ini, keputusan HMS mensabitkan Perayu atas kesalahan tersebut setelah mengambil kira kesemua keterangan di hadapan Mahkamah di akhir kes adalah betul dan tepat, dan selaras dengan seksyen 182A Kanun Prosedur Jenayah [Akta 593] yang memperuntukkan seperti yang berikut: “Procedure at the conclusion of the trial 182A. (1) At the conclusion of the trial, the Court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt. (2) If the Court finds that the prosecution has proved its case beyond reasonable doubt, the Court shall find the accused guilty and he may be convicted on it. (3) If the Court finds that the prosecution has not proved its case beyond reasonable doubt, the Court shall record an order of acquittal.”. [Penekanan ditambah] [49] Berdasarkan alasan-alasan di atas, Mahkamah ini menjawab Isu Ketiga tersebut sebagai ya, iaitu pihak pendakwaan berjaya membuktikan suatu kes melampaui keraguan yang munasabah terhadap Perayu di akhir kes bagi Pertuduhan tersebut. S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 Isu Keempat [50] Mengenai Isu Keempat, hukuman yang boleh dikenakan oleh Mahkamah ke atas pesalah yang disabitkan dengan kesalahan yang boleh dihukum di bawah perenggan 14(a) dan subseksyen 16(1) Akta KKSTKK ialah pemenjaraan selama tempoh tidak melebihi dua puluh tahun dan boleh juga dihukum dengan hukuman sebat dan pemenjaraan selama tempoh tidak melebihi lima tahun dan hendaklah dihukum dengan hukuman sebat tidak kurang daripada dua sebatan. Berdasarkan peruntukan tersebut, hukuman berbentuk pemenjaraan dan sebat adalah mandatori. [51] Memandangkan Perayu telah disabitkan dengan kesalahan tersebut setelah suatu perbicaraan penuh dijalankan dan mengambil kira faktor kepentingan awam, kepentingan dan keselamatan kanak-kanak di negara ini dan peningkatan kes-kes kesalahan (prevalence of offence) amang seksual atas kanak-kanak di negara ini, maka Mahkamah ini berpendapat bahawa hukuman yang dikenakan oleh HMS ke atas Perayu bagi kesalahan tersebut adalah munasabah, setimpal dan tidak terlalu melampau (not manifestly excessive) serta selaras dengan prinsip penghukuman dan undang-undang yang berkuat kuasa. Oleh itu, tiada keperluan untuk Mahkamah ini campur tangan dan mengubah hukuman tersebut. S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 [52] Berdasarkan alasan-alasan di atas, Mahkamah ini menjawab Isu Keempat tersebut sebagai ya, iaitu hukuman yang dikenakan oleh HMS ke atas Perayu adalah munasabah, setimpal dan selaras dengan undang- undang. KESIMPULAN [53] Sebagai kesimpulan, berdasarkan alasan-alasan yang dinyatakan di atas, Mahkamah ini telah menolak keseluruhan rayuan Perayu dan mengekalkan keseluruhan keputusan HMS berkaitan dengan sabitan dan hukuman ke atas Perayu tersebut. Bertarikh: 25 Oktober 2023 (DR. ARIK SANUSI BIN YEOP JOHARI) Hakim Mahkamah Tinggi Malaya, Kangar Negeri Perlis S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 Peguam Cara Pihak-Pihak – Peguam Cara Perayu: Encik Gooi Soon Seng (hadir bersama Encik Chan Tek Lee) Tetuan Gooi & Azura Peguam Bela dan Peguam Cara No.12-1 & 14-1, Jalan Serkut Taman Pertama, Cheras 56100 Kuala Lumpur Peguam Cara Responden: Tuan Mohd Izham bin Ali Timbalan Pendakwa Raya Pejabat Penasihat Undang-Undang Negeri Perlis Aras 3, Blok B Kompleks Pentadbiran Kerajaan Negeri Perlis Persiaran Wawasan 01000 Kangar Perlis S/N B40PC/lybEuA1jlCp9yDww **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

W-09(H)-26-02/2022

PERAYU GAN BOON AUN RESPONDEN Pendakwa Raya [Pendakwa Raya]

Criminal Appeal against the High Court's decision which had allowed the respondent's appeal against the Sessions Court's sentence in the absence of the appellant and enhanced the sentence of 1 day imprisonment imposed by the Sessions Court against the appellant under section 1228 (a) (bb) read together with section 122 (1) of the Securities Industry Act 1983 to imprisonment of 24 months and affirmed the sentence of fine in the sum of RM2.5 million in default 18 months imprisonment imposed by the Sessions Court whether the High Court's Order dated 25.1.2022 is in contravention of the provisions of section 314 (1) of the Criminal Procedure Code and is therefore null, void and illegal and ought to be set aside ex-debito justitae - the Court of Appeal held the High Court's Order enhancing the sentence of imprisonment from one day to 24 months to be null, void and illegal and ought to be set aside - to prevent injustice, exercise inherent powers under Rule 105 of the Rules of the Court of Appeal 1994 - the appeal was allowed and the sentence of 24 months imprisonment imposed by the High Court was set aside the sentence of one day imprisonment imposed by the Sessions Court was restored.

17/11/2023

YA Dato' Hadhariah Bt Syed IsmailKorumYA Dato' Hadhariah Bt Syed IsmailYA Dato' Gunalan A/L MuniandyYA Dato' Paduka Azman Bin Abdullah

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=88b2e8a9-544e-4e1b-81b8-617e1e5bec0f&Inline=true

1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO.W-09(H)-26-02/2022 BETWEEN GAN BOON AUN - APPELLANT AND PUBLIC PROSECUTOR - RESPONDENT [In the Matter of High Court of Malaya at Kuala Lumpur Criminal Appeal No.WA-42H-10-09/2020 Between Public Prosecutor And Gan Boon Aun] CORAM: HADHARIAH BINTI SYED ISMAIL, JCA M.GUNALAN, JCA HAJI AZMAN BIN ABDULLAH, JCA 17/11/2023 16:09:51 W-09(H)-26-02/2022 Kand. 140 S/N qeiyiE5UG06BuGFHlvsDw **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 GROUNDS OF JUDGMENT Introduction [1] This is an appeal by Gan Boon Aun against the decision of the High Court dated 25.1.2022 wherein the High Court had allowed the respondent’s appeal against the sentence meted out by the Sessions Court in the absence of the appellant and enhanced the sentence of 1 day imprisonment imposed by the Sessions Court against the appellant under section 122B (a) (bb) read together with section 122 (1) of the Securities Industry Act 1983 to imprisonment of 24 months and affirmed the sentence of fine in the sum of RM2.5 million in default 18 months imprisonment imposed by the Sessions Court against the appellant. [2] This appeal raised one important issue, i.e., whether the High Court’s Order dated 25.1.2022 is in contravention of the provisions of section 314 (1) of the Criminal Procedure Code and is therefore null, void and illegal and ought to be set aside ex-debito justitae. Background Facts [3] The appellant was charged with an offence of giving a misleading statement to Bursa Malaysia Securities Berhad in Transmile Group Berhad’s “Quarterly Report on Unaudited Consolidated Results for the Financial Year Ended 31.12.2006”,an offence under section 122B (a)(bb) read together with section 122 (1) of the Securities Industry Act 1983. S/N qeiyiE5UG06BuGFHlvsDw **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 [4] The trial commenced at the Sessions Court on 22.7.2010. At the end of the prosecution’s case, the Court held that the prosecution had established a prima facie case. The appellant was called upon to enter his defence. However, the defence’s case did not proceed promptly as the appellant had filed several applications to challenge the constitutionality of some provisions in the Securities Industry Act 1983. These applications and the appeals arising there from took up almost seven years and were heard at all levels, from the Sessions Court to the Federal Court. [5] The defence’s case eventually commenced in July 2018. The appellant was the sole witness. On 27.8.2020, the Sessions Court found the appellant guilty and sentenced him to one day’s imprisonment and a fine of RM2.5 million in default 18 months imprisonment. He had served the imprisonment sentence and paid the fine. [6] Both the respondent and the appellant appealed against the decision of the Sessions Court. The respondent appealed against the sentence of one day imprisonment. The appellant appealed against his conviction and sentence. [7] Both appeals were fixed to be heard together before High Court Judge, Zaini Mazlan J. The case managements for both appeals were fixed on 17.11.2020, 22.12.2020, 2.3.2021, 6.5.2021, 25.5.2021, 15.7.2021, 29.9.2021 and 13.10.2021. However, the appellant’s counsel, Dato’ Tan Hock Chuan from Messrs Tan Hock Chuan & Co discharged himself for both appeals during the case management on 2.3.2021 on the ground of lack of instructions from the appellant. The appellant S/N qeiyiE5UG06BuGFHlvsDw **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 did not attend any case management after that, even though the court had issued letters to him to inform of the dates. [8] The appellant’s appeal was fixed for hearing on 13.10.2021.The respondent’s appeal was fixed for case management on the same date. The appellant’s appeal was struck out as he had failed to attend. [9] The respondent’s appeal was fixed for hearing on 18.10.2021. The appellant was still absent. A warrant of arrest was issued against him. The appeal was adjourned to 13.12.2021. As the police could not execute the arrest warrant on the appellant, the appeal was adjourned to 25.1.2022. [10] On the date of hearing of the respondent’s appeal on 25.1.2022, the appellant or his counsel was not present. The learned Deputy Public Prosecutor (DPP) informed the learned High Court Judge that the warrant of arrest could not be executed. Taking into account the fact that the respondent had attempted to locate the appellant for the past one year, but was unsuccessful, the learned High Court Judge decided to proceed with the appeal and ordered enhancement of the sentence of one day imprisonment to 24 months imprisonment. [11] On 7.2.2022, the appellant filed a notice of appeal against the decision of the High Court in enhancing the one day imprisonment to 24 months’ imprisonment. S/N qeiyiE5UG06BuGFHlvsDw **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 Preliminary Objection [12] On 6.1.2023, the respondent gave a notice of preliminary objection that the appeal is incompetent on the ground, that the instruction to appeal came from the appellant’s daughter and not from the appellant himself. Hence, the respondent submits that the counsel purportedly acting for the appellant had no locus standi to act in this appeal. [13] We reject the preliminary objection. In our view, there is no law prohibiting a family member of the appellant from giving instruction to a solicitor to file an appeal in a situation where the appellant could not be located. Our paramount consideration is to determine whether the sentence passed by the High Court is in accordance with the law and that no miscarriage of justice would be caused to the appellant if the appeal is heard on merits. We should not be concerned with technicalities. Grounds of Appeal [14] In his Memorandum of Appeal, the appellant raised 13 grounds in support of his appeal. They are as follows: 1. The learned High Court Judge erred in law and in fact when it held that the Notice of Appeal was ‘properly served’ on the appellant (where he was the respondent at the High Court). S/N qeiyiE5UG06BuGFHlvsDw **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 2. The learned High Court Judge took into consideration irrelevant facts to conclude that the prosecution’s notice of appeal had been purportedly served on the appellant. 3. The learned High Court Judge erred in law and/or in fact by taking judicial notice of the comprehensive news coverage of the case that the appellant had knowledge of the prosecution’s notice of appeal and had been evasive. 4. The learned High Court Judge erred in fact when he made a finding that the appellant had ‘deliberately evaded being notified of the court proceedings’ and that he ‘is a recalcitrant offender as he evaded service and went into hiding and now absconded’ without any evidence and/or any affidavit affirmed by the Investigating Officers and filed by the prosecution to support the same. 5. The learned High Court Judge erred in law and/or in fact when he held that the requirement of service of notice of appeal had been satisfied in accordance with the provision of section 314 of the Criminal Procedure Code. Further, the learned High Court Judge failed to appreciate the totality of the facts and/or circumstances of the case as stated above leading to erroneous judgment being given against the appellant. 6. The learned High Court Judge erred in law when he proceeded to hear the prosecution’s appeal and subsequently enhanced the imprisonment sentence in the absence of the appellant. S/N qeiyiE5UG06BuGFHlvsDw **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 7. The learned High Court Judge erred in law when he failed to take into consideration the relevant laws and/or authorities on section 314 of the Criminal Procedure Code that an appeal cannot proceed in the absence of the appellant (who was the respondent at the High Court) and/or even if it can be proceeded, the High Court “shall not make any order in the matter of the appeal adverse to or to the prejudice” of the appellant. 8. The learned High Court Judge erred in law and/or in fact when he held that the appellant had chosen to waive his rights to be heard under the principle of audi alteram partem. 9. The learned High Court Judge erred in law when he failed to take into consideration that the intention behind section 314 of the Criminal Procedure Code i.e. the incongruity of sentencing a man without him having the opportunity to be heard is in plain violation of the fundamental principle of audi alteram partem. 10. The learned High Court Judge erred in law when he held that he could proceed with the hearing of the prosecution’s appeal in the absence of the appellant and to enhance the sentence against the appellant in his absence contrary to section 314 of the Criminal Procedure Code. 11. The learned High Court Judge erred in law and in fact when he took into consideration irrelevant factors in enhancing the imprisonment sentence against the appellant S/N qeiyiE5UG06BuGFHlvsDw **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 from one day to 24 months including the previous proceedings prior to the trial at the Sessions Court. 12. The learned High Court Judge erred in law and in fact when he failed to take into consideration the date of the offence and the trend of sentencing in respect of the offence and/or similar offences at that material time. 13. In view of the foregoing grounds of appeal, the learned High Court Judge erred in law and in fact when he proceeded to hear the prosecution’s appeal in the absence of the appellant and enhanced the imprisonment sentence against the appellant from one day to 24 months. And the appellant therefore prays that this Honourable Court do exercise its supervisory powers and/or ancillary powers under R.73 of the Rules of the Court of Appeal and /or other laws and/or inherent jurisdiction of this Court to set aside the decision of the High Court enhancing the sentence of imprisonment against the appellant from one day to 24 months. The Issues [15] Despite there being 13 grounds of appeal, we propose to narrow them to the following three (3) main issues: (i) Whether the respondent’s notice of appeal was served on the appellant. S/N qeiyiE5UG06BuGFHlvsDw **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 (ii) Whether the learned High Court Judge had contravened section 314 (1) of the Criminal Procedure Code in enhancing the imprisonment sentence from one day imprisonment to 24 months in the absence of the appellant. (iii) Whether the Order of the High Court dated 25.1.2022 is null, void and illegal and ought to be set aside. Whether The Respondent’s Notice Of Appeal Was Served On The Appellant. [16] The High Court proceeded to hear the respondent’s appeal under section 314 of the Criminal Procedure Code which reads as follows: 314. Non-appearance of respondent (1) If, at the hearing of the appeal, the respondent is not present and the Court is not satisfied that the notice of appeal was duly served upon him, then the Court shall not make any order in the matter of the appeal adverse to or to the prejudice of the respondent, but shall adjourn the hearing of the appeal to a future day for his appearance, and shall issue the requisite notice to him for service through the Registrar. (2) If the service of the last-mentioned notice cannot be effected on the respondent the Court shall proceed to hear the appeal in his absence. [17] Before us, the learned Deputy Public Prosecutor (DPP) conceded that the respondent’s notice of appeal was served upon the appellant’s S/N qeiyiE5UG06BuGFHlvsDw **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 previous solicitors, Messrs Tan Hock Chuan & Co. The DPP submitted that service of the notice of appeal on the appellant’s previous solicitors, Messrs Tan Hock Chuan & Co is good service based on two grounds. First, section 314 (1) CPC does not require the notice of appeal to be personally served on the appellant. Second, the appearance of the appellant’s previous solicitors at the case managements before the High Court would be sufficient to show that the notice of appeal was duly served upon the appellant. [18] On the other hand, learned counsel for the appellant submitted that section 314 (1) CPC requires the notice of appeal to be served personally on the appellant (respondent at the High Court) and not on his solicitors. Counsel emphasized the words ‘respondent’, ‘duly served upon him’, ‘shall issue requisite notice to him’ used in s.314(1). It was submitted that nowhere in s.314 (1) does it say or indicate that inference can be made that service of the notice to the respondent’s solicitors is deemed as service on the respondent. [19] In giving effect to the provisions of s.314 (1), we are guided by the decision of the Federal Court in the case of Lau Keen Fai v Lim Ban Kay & Anor [2012] 1 CL J 569, wherein the Federal Court held ‘where the words are clear and unambiguous, a court should give effect to the plain words’. [20] We, agree with the submission of counsel for the appellant that the words used in s.314 (1) are clear and unambiguous in that the notice of appeal is to be served personally on the appellant. In the present case, with the concession made by the DPP, we find the notice of appeal was not served personally on the appellant. Therefore, s.314(1) S/N qeiyiE5UG06BuGFHlvsDw **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 has not been complied with. Hence, a service does not constitute proper service in accordance with law. [21] In fact, the non-service of the notice on the appellant is supported by the court’s notes of proceedings during case management on 15.7.2021 before the Deputy Registrar. On 15.7.2021, the DPP informed the Deputy Registrar: “IO telah serah notis kepada Gan Boon Aun, Peguam Tan Hock Chuan telah tarik diri. IO telah buat cubaan serahan sebanyak 6 kali untuk 2 alamat. TPR masih ingin buat usaha lagi untuk buat serahan. TPR mohon kes disebut di hadapan Hakim untuk mohon waran tangkap.” [22] On 18.10.2021, on the date fixed for hearing of the appeal, the learned High Court Judge made the following notes: “Case is fixed for the hearing of appeal. Appellant’s counsel stated that they have not been able to effect service on the respondent and that the respondent has been evading service.” [23] We also took note of the affidavits of the Investigating Officer, one Jonathan Chin Ter Yang, affirmed on 11.10.2021; 20.10.2021; 9.12.2021 and 20.1.2022, where he detailed his attempts to serve notice of hearing instead of notice of appeal on the appellant at a few addresses. All these attempts were not successful. S/N qeiyiE5UG06BuGFHlvsDw **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 [24] Based on the affidavit evidence of the Investigating Officer, it is clear to us that this is a case where both notice of appeal and notice of hearing were not served on the appellant. [25] Despite the obvious, in the grounds of judgment, the learned High Court Judge held: “15. The respondent’s counsel had attended the case management on 22 December 2020 and 2 March 2021 for this appeal and his appeal. It is apparent that the respondent had been served with the notice of appeal as his counsel had attended the case management on two occasions, although he had discharged himself on 2 March 2021. Therefore, I agree with the appellant’s contention that the notice of appeal has been served on the respondent, satisfying the requirement under section 314 CPC.I also took note that the respondent had filed his notice of appeal a day after the prosecution had filed its notice of appeal, which could only mean that he was aware of the prosecution’s appeal after being served with the notice of appeal. 18. In any event, I opine that section 314 (2) CPC too had been fulfilled. I also took judicial notice that there was comprehensive news coverage of this case. It is more probable than not that the respondent had been evasive. Given the strenuous efforts by the appellant, I am satisfied that the service of the notice as required under section 314 (2) CPC cannot be effected. 20. The respondent had deliberately evaded being notified of the court proceedings, considering the many efforts made to trace him. He is a recalcitrant offender as he had evaded service, went into hiding and now absconded. If tolerated, this would only bring disrepute to the court’s proceedings. The respondent had chosen to S/N qeiyiE5UG06BuGFHlvsDw **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 waive his rights to be heard under the principle of audi alteram partem.” [26] With respect, we find the learned High Court Judge had erred in law and in fact when he held the notice of appeal had been served on the appellant on the basis that his previous solicitors had attended two case managements. In coming to that decision, the learned High Court Judge had misunderstood the express provisions of section 314(1) CPC which require notice of appeal to be served personally on the appellant. Service of the notice on the appellant and attendance of his solicitors at the case management are two separate and distinct matters. The Court cannot assume notice is personally served on the appellant just because his solicitors attended case management. That is not how service is to be effected. The only way the learned High Court Judge can satisfy himself that the notice of appeal has been served on the appellant is there must be an affidavit of service affirmed by the Investigating Officer stating he had served the notice of appeal personally on the appellant. Anything short of this will not suffice. In this case, there is no such affidavit before the court. In addition, we also find the learned High Court Judge had taken into consideration irrelevant facts, i.e., the appellant had waived his right to be heard which led to the wrong decision being made. For the aforesaid reasons, we find his decision that the notice of appeal had been served on the appellant is a wrong decision in law and fact. S/N qeiyiE5UG06BuGFHlvsDw **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 Whether The Learned High Court Judge Had Contravened Section 314 (1) CPC In Enhancing The Sentence Of Imprisonment From One Day To 24 Months. [27] Apparently, at the High Court, learned counsel for the respondent referred to the learned High Court Judge the following three cases: (i) PP v Goh Thor Kiah [1952] 1 ML J 91; (ii) Public Prosecutor v Chan Quee Long [1993] 4 CL J 262; (iii) PP v Foo Kim Lai [2009] 1 ML J 211. [28] In PP v Goh Thor Kiah, the respondent was charged for possession of opium. He pleaded guilty and was discharged under section 173A CPC. The prosecution appealed against inadequacy of sentence. No notice was served on the respondent. The DPP applied under section 314 (2) to proceed with the appeal in the absence of the respondent and suggest a more severe sentence should be passed. Taylor J had this to say: “It is admitted that his construction is surprising in that it involves the proposition that a person who has been acquitted in one of the lower courts might have his acquittal reversed and a conviction substituted and sentence passed and that he might be arrested and imprisoned without having any further opportunity whatsoever to present his side of the case. Such a construction is a plain violation of the fundamental principle audi alteram partem and in my view is wholly opposed to all our principles of judicial procedure.” S/N qeiyiE5UG06BuGFHlvsDw **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 In Goh Thor Kiah’s case, the court did not proceed with the appeal, but adjourned it to another date. [29] In Public Prosecutor v Chan Quee Long [1993] 4 CL J 262,the respondent was charged for an offence under section 4A (a) of the Common Gaming Houses Act 1953. He pleaded guilty and was sentenced to one year imprisonment and fined RM5000.00 in default 500 days imprisonment. The respondent served his imprisonment sentence in full. The fine was not paid. The DPP appealed against inadequacy of sentence. The appeal was postponed 6 times as the notice of appeal could not be served on the respondent. The High Court proceeded to hear the appeal in the absence of the respondent and dismissed the appeal. Abdul Malik Ishak JC (as he then was) took into consideration the limitation that ‘the court shall not make any order in the matter of the appeal adverse to or to the prejudice of the absent respondent’. [30] A similar approach was adopted by Suraya Othman J (as she then was) in PP v Foo Kim Lai [2009] 1 M L J 211. The High Court proceeded to hear the appeal in the absence of the respondent and dismissed the appeal. [31] However, the learned High Court Judge held the above three cases are not applicable because in those cases, notices of appeal were not served on the respondent, whereas, in the case before him, the Judge opined notice of appeal was served on the appellant, which we have already ruled to be erroneous. S/N qeiyiE5UG06BuGFHlvsDw **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 [32] It appears to us that the learned High Court Judge was under the impression that as long as notice of appeal was served on the appellant, even though the appellant was absent, the Court can proceed and enhance the sentence. In our view, even though the Court can proceed with the appeal in the absence of the appellant under section 314 (2) CPC, section 314 (2) must be read together with section 314 (1) i.e. the court is still subject to the limitation ‘that the court shall not make any order in the matter of the appeal adverse to or to the prejudice of the respondent’. This has been the consistent approach of the courts in the three cases cited above. In all three cases, the court refused to disturb the sentence imposed by the lower court. Instead, the court either adjourned or dismissed the appeal. [33] Had the learned High Court Judge followed the three cited cases, he would have had no option, but to dismiss the appeal. In this case, the learned High Court Judge did not dismiss the appeal. Instead, he enhanced the sentence. It goes without saying that the new sentence of 24 months imprisonment is severe, adverse to and is prejudicial to the appellant. The sentence of 24 months imprisonment is a clear violation of section 314 (1) CPC. Whether The Order Of The High Court Dated 25.1.2022 In Enhancing The Sentence Is Null, Void, Illegal And Liable To Be Set Aside. [34] It is trite law that courts have no authority to act in contravention of written law and 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 S/N qeiyiE5UG06BuGFHlvsDw **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 that purpose; see Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 ML J 393. [35] Before us, learned counsel for the appellant moved this court to exercise its ancillary and inherent powers under the Rules of the Court of Appeal 1994 to set aside the Order of the High Court and restore the sentence meted by the Sessions Court. [36] Rule 76 of the Rules of the Court of Appeal 1994 provides: 76. Ancillary powers of the Court The Court shall exercise, for all purposes incidental to or arising from any application or appeal, all the powers which, under the provisions of any written law in force in the place of trial at first instance, were vested in the trial Judge, whether before, during or after the trial, to the extent that such powers may be applicable to the circumstances of an application or appeal to the Court. [37] Rule 105 of the Rules of the Court of Appeal 1994 provides: 105. Inherent powers of the Court For the avoidance of doubt, it is declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court. [38] In Ishak bin Haji Shaari v Public Prosecutor [2006] 3 ML J 405, the applicant was convicted by the Magistrate’s Court for outraging the modesty of a 14 year old school girl, an offence under section 354 of the Penal Code. He was sentenced to 4 yours S/N qeiyiE5UG06BuGFHlvsDw **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 imprisonment and two strokes of rotan. The applicant appealed against his conviction and sentence to the High Court. The High Court dismissed his appeal on conviction. But, the High Court reduced the term of imprisonment from 4 years to 2 years and set aside the sentence of whipping. The applicant applied for leave to appeal to the Court of Appeal. The leave application was dismissed. However, the Court of Appeal opined that the High Court had erred in altering the sentence imposed by the magistrate. The Court found that the sentence imposed by the magistrate was not manifestly excessive having regard to the public interest and should not be disturbed. As a result of the High Court’s intervention, the Court further found a manifest injustice had occurred. [39] In Ishak’s case, the Court of Appeal applied Rule 76 of the Rules of the Court of Appeal 1994 to set aside the sentence imposed by the High Court and restore the sentence meted out by the Magistrate’s Court. With regard to Rule 76, Gopal Sri Ram JCA said: “Rule 76 is a beneficial piece of subsidiary law. It was aimed at doing justice. It is a sweeping provision. The Court of Appeal has the jurisdiction and powers conferred on it by the Federal Constitution and the Act. What r76 did was to reinforce the Court of Appeal’s powers by sweeping into the armoury of powers the Court of Appeal already has, those powers not already mentioned in the Act. As it is a provision whose purpose is the achievement of justice, it must, in accordance with well settled guides to construction be interpreted liberally and not narrowly.” [40] Based on Badiaddin’s case, we held that the High Court ‘s Order dated 25.1.2022, enhancing the sentence of imprisonment from S/N qeiyiE5UG06BuGFHlvsDw **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 one day to 24 months to be null, void and illegal and ought to be set aside. To prevent injustice, we exercise our inherent powers under Rule 105 of the Rules of the Court of Appeal 1994. We allow the appeal and set aside the sentence of 24 months imprisonment imposed by the High Court on 25.1.2022. We restore the sentence of one day imprisonment imposed by the Sessions Court. Dated: 15th November 2023 - SGD - Hadhariah binti Syed Ismail Judge Court of Appeal For the Appellant : Dato’ Sithambaram, Guok Ngek Seong, Lee Wen Rui. Guok Partnership. For the Respondent : Mohd Hafiz Mohd Yusoff, Aerie Rahman, Daniel Ariff & Eunice Ong. Deputy Public Prosecutors, Securities Commission Malaysia. S/N qeiyiE5UG06BuGFHlvsDw **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

AA-B52M-15-12/2021

PLAINTIF STANDARD CHARTERED SAADIQ BERHAD DEFENDAN 1. ) THAMBY CONSTRUCTION SDN BHD 2. ) PONNUSAMY A/L CHELLIAH 3. ) KUMAR A/L C THANABALAN

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17/11/2023

Puan Nor Hasniah binti Ab Razak

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17/11/2023 12:25:02 AA-B52M-15-12/2021 Kand. 43 S/N ozJWfKMUgkaGWQpqKAlMoA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ozJWfKMUgkaGWQpqKAlMoA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ozJWfKMUgkaGWQpqKAlMoA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ozJWfKMUgkaGWQpqKAlMoA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ozJWfKMUgkaGWQpqKAlMoA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ozJWfKMUgkaGWQpqKAlMoA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ozJWfKMUgkaGWQpqKAlMoA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ozJWfKMUgkaGWQpqKAlMoA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ozJWfKMUgkaGWQpqKAlMoA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ozJWfKMUgkaGWQpqKAlMoA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ozJWfKMUgkaGWQpqKAlMoA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ozJWfKMUgkaGWQpqKAlMoA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ozJWfKMUgkaGWQpqKAlMoA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ozJWfKMUgkaGWQpqKAlMoA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ozJWfKMUgkaGWQpqKAlMoA **Note : Serial number will be used to verify the originality of this document via eFILING portal S/N ozJWfKMUgkaGWQpqKAlMoA **Note : Serial number will be used to verify the originality of this document via eFILING portal n—a52u—15—12/2021 Kand. 43 1"/11/2022 12' DALAM MAHKAMAH sssvsu DI IPOH DALAM NEGERI PERAK DARIJL RIDZUAN, MALAYSIA GUAMAN SIBIL N0: AA»E52M-15-12l2fl21 ANTARA STANDARD CHARTERED sumo BERHAD (N0. SYARIKAT: 2onen1n2211a(n2:4a1-Kn PLAINTIF DAN 1. TI-uwlav CONSTRUCTION sun am) (No. SVARIKAT: 2o1no1onn9aa [M5555-AA)] 2. PONNUSAMY A/L CNELLIAM (N0. K/P: uo1214wss97) 3. KUMAR AIL c THANABALAN (N0. K/P: nnszn-on-5541) DEFENDAN-DEFENDAN ALASAN PENGHAK|MAfl (LAMPIRAN 17) sw uuwmuumaswuwkumna -um smm ...m.mm be used m mm .. mm-y mm: dun-mm VII muNG pm LAIA5 gELAKAN§ KE5 ['1 Mamm lelah menvankan Nous Pammhonan an bawah Aluran 14 Kaeaan-Kaedan Mahkamah 2012 (se\epas danpada Im msebm sebagex “KKM 2012“) [Lampivan 17] bahawa P\ainM dibenken kebenaran umuk memasukkan sualu penghakman (ems ds\am lindakan mv lemadap nevenaamuevenuan urnuk — (8) If?) (G) N) (2) Jumlah wang sebanyak RM532‘6B204 yang u 20 1a 2021‘ Kadar keunlungan Dada 14.00% selahun yang uikua secara bwanan ke alas jumlah Wang sebanyak RM532,56Z M dan 21 102021 hmgga Iankh penyelesaxamumxah penghskwman, Fampasan/ganurugi kelewalan bayaran Auga mkenakan ks alas amaun (emmggak uamu pada kadar 1% selahun yang mkira secara harian dan bag! kagagalan umuk membuat bayaran selepas lempuh mavang kemuaanan, Plairmi bemak unzuk kadar pampasan mengxkul kadar berdasarkan kepada Pasaran Kewangan Islam atau paaa kadar lam yang ditentukan man Bank Nsgara Ma\ays|a dan masa ke ssmasa ks acaa jumxan yang tenunggak yang dikua flan larikh pellu amayav seningga panyenasman pemm dan jurmah pampasan Iersebul max boleh dxkompaunkan‘ Kus perrmhunan ml uuanggung aleh oaaanaan-navenuan; dan Ferm|ah—perIn(sh dan/atau relihelwi lam yang difikvkan acm dan suai m:mfsa| uren Mahkzmah Yang Mulia mi selakst menqenakan samasa 121] Praunm |eIan menghmahkan bahawa P\a\nM aafla pengstahuan mengsnai permuhonan morananum yang mana Dsfendan»De1endan msndakwa lelah mengisl suam barang pannnnonan ‘SME Targeted Repayment/PaymenIAss1s|aru:e Declarahan Farm‘ pafla 2a 1 2021 unmk msmuhon pananggunan pembayaran bahk Fembiayaan Aersabm den s,- melemel yang mnannar kepada Plamm (serepas danpada W msenun sebagaw 'Permahcnan Moratorium‘) Ws\au apapun, Plsm|i1menghu;ahkan lag: bahawa Delsndarvnsiendan (Idak layak umuk apa-apa permohonan nan Psrmahonan Moranmium (srsebm max peman dlluluskan aleh Plaxnlfl Ds\am Hal Ini, P\a1n|flIelsh meruwk kepada klausa 2 S|andard Terms 4. canamons eovenung E1zFmsncing—I Facmcy yang drek' ckan sebagaw ska»: dakam Lamp»-an I8 rsawepas danpadi um dissbul sebagaw “standam Terms 5 Condmons Govemmg Exzfinanclngrl Faumy) [221 Berkenaan dakwaan Defendanbelsndan bahawa psngiraan pihak Pvamw adalah max (spat dan Iidak Dena! karana (Idak rnengambu kwa pembayaran—pembayaran yang Aekah : ual meveka sebelum pernvanan kes m naaapan Mahkamah ini. plhak Plamuf menglwmahksn bahswa ads\ah maunadm unluk Flainlfl mengamukakan sml kebevhulangarv berlarikh 2ow.2o2« sebagai om kukuh mangenal Keberhulangan Defendaw Dafendan semasa pemrauan kes im yang sewas dengan klausa 15 Standard Terms 3. Comiiflons Guvernmg EAzF1nancing»| Facmly tevsebul Kss Mahkamah Persekuman Cempaks Fmnoe Ehd v Ha La: W1; .1. Ana! [zones] 3 cu 544 telah memznncangkan mengenan um kenemmangan sepam nerikm "rs; A nemficare ol mdsmsdnass operates 1.. m. nan av .a,una nw M xcuseslh am.» dducwv mam am.-n'r am the "mm dsfervdent ‘mvs mmtclarm -. [penekanan mxanmah] [23] Ssbagai (ambahan hag: menjawah dakwaan Delendan-Dsfendan bahawa plhak Plamm hdak mengemukakan penya|a akaun (erkim unluk manunjukkan mmlah Iemulang yang Iepal. Flainlfllelah mengeksxbllkan sum keberhuvangan baharu yang menunjukkan Deoenaannelenaan adalah bemulang sebanyak RM2s7,73s13 sexakat 662023 di Lampiran zs Dalam ha! um, Palnm menghmahkan bahawa Mahkamah Im mien memasukkan penghskiman Isms bag rnnun yang bsrkurangan menuml Aluran M Kaadah 3(1) KKM 2n12 den xelan merujuk kepada beherapa kes yang benkul Kes panama sdmah kes Mahkamah Tmggl Jnhor Bahm Cahaya Buml Mas Sdn Ehd v Lirn Boon seng & on (Na 2) [2019] 1 LNS 1293 yang rnenyalakan bahawa — ~19) The Court has the pawn!!!) glantjudgmenllarx hisssr sum pursuant to n 14 r3(1) read together will o u .-.511; am1(2] aanxm/aw In the ngm DI Dsfendanls admrasvon to the deduction 0.14 (.3(1) In rarmn to a summary mvlgmenl by a plamnlf pmvvdas that the Court may give such judgment on rhalpafla! ma c/arm arpanasmay bsjusl. o.1u5 deals .1 mm an sppbcanon Iar summary judgment an 5 uoumemmm, as /n this /nalsrmv andm r5(2) states that 0.14 /.3 Bpplrss to sum an appllczmm-, [penekansn mcambah] Kes kedua adalah kes Mahkamah Tmggi Kuala Lumpur MBSB Bank Bhd v STT Tecrmorogrss Sdn EM & Ovs mm] 1 LNS 1575 yang memuluskan bahawa — 7251 ms rs oonslslvnl wan line of ms M to . for ram: 5! a an! an alarm be aw rs ard namm rem Is/ISVBJ r as V m 1 ol 4 r 3 The Ca am can . rt .9! a laIn!v'/f enter men: a Yes In man Iv: sum .1. See mu Nrgh Com decisions In canaya Bum Mas sun am v. um Boon Seng & Or: we 2) pm] 1 ms 129:, UEM Land Borhsd v No! Azml Ahu mm 5 Or: [2019] 1 ms 251, Favvan /llumlmum Sdn Bhd V Langkah rams Sdn am1[2o111 v ms 421 and Tan Tang Stan Realty Sdn Bhdv /slami o«/Pm Plsntelfons Sdn smm Am [1997] 4 cu 53:. 1251 The Defendants‘ munssr mmma that mamngs cannot be amended at mm mm flags afler submlssvans sis filed to allow the prayer in ..«..1 5 dwersnr sum Nowsver r am unable to agree with kaamad counsel There is no necessity m amend m. meadmg: to enter [udgmenl on mm mm mm /1 was held by m. Hrgn Court m Teluan Tan Tang Stan Reany Sdn am: V. mm on Palm P/irvtalrnns Sdn am: 5. Anwtsupra ; mat the - an en my men a re: m then sum inr w nal rggwed in gmgfld Ina sum guns 3 mqmen: Iar 5 lesser Jug may gg ocmmn g gum afnj [El using - [penekanan flflsmhah] 11 muuwrkmu mm mm «Sm. M lI1?h2lrwN .,‘:‘L..¢.m...,....m,m.u.,.,~..‘. m.m._.n.m W Kes kanga adalah kes Mahkamah Tmggl Kuala Lumpuv Amance Fmance and u canaya Kskang Construction Sdn Bhd a. Ors [2005] 1 LNS 225 yang memunuskan sepem benkul “[12] The F’/sfnml naa made a uenn on the basis 0! live Statement or Account and nmducud me Slatumenl al Aaaoune 2.7 prove rls E/arm. Ths Slatsmenl a(AccounI 2; censmen: wnn ms uann The Doiundanla‘ drd rm! deny any default nave s'nnal/ was me am a a . uann lh are I ancle at mean anna! owed a use me cl,-um or r r; figundscl M Slargmggls gf gwm may clear I n m ' nldal ere: mfbvw (1 subs! la the nlgrm ma! Ihgg We mgmgancrae - [peneksnan dnsmbah] [24] navendan-neqeman pma menghmahkan banawa Delendan Panama lelah memanon suam moralanum un|uk pensngguhan pernbaysran bahk Pernblayaan tevsehm kepada P!am|W dengan menglsl barang SME Targeted Repayment/Payment Asslslance Dsdarakion Farm benankh 2672021 (selepas danpada ml msabut ssbagai “Eurang"j mu burang yang Ielah msemakan ds\am Iaman sesawang Plamm unmk uquan permohonan maraxonum aarang nu |elah enamel kspada Plamm namun liada ssbarang mwapan mlenma olen Davanaan-Detendan [251 Davenuan-Detendan sslamulnya menghujahkan bahswa junnan yang dmmlut o\eh P\aIntW dw dalam Lampiran 1 can 2 adalah max lepal aan sehmgga km: Defendan-Delsndan masih membayar halik wang Pemmayaan lersebul P\ainI\i mga max msngemukskan penyala akaun narknn unmk menumukkan jumlah cemuxang yang |epa( Dalam nal \ u WVKMLI mm mna. «5£‘n.,':“a.n.n...‘u‘;Mn.,‘:“a......:a.,,....mn.n.,.,nn.m.m._.nana W nevenaan-Devendan lelah men anlkan Larnpiran 27 yang mengeksimkan sabuah penyala akaun, Jumlah larhu|ang Famhiayaan Kersebm aaaxan sebanyak RM3J5‘719 o1 seeakax 31 12 2022. [26] Eerdasarksn kzpada kes Mahksmah Persekutuan Nanonal company an Forewgn Trade v. Kayu Rsya son EM [supra] nu ma, P\aIn|fl dikehsndaki memenulu kesemua pra-syaral dan Mahkaman Im mendapau bahawa Plsmlif (e\ah memenum kesemua pra—syara( yang dnetapkan sepembsrikul la] Deiendsnfielendan celzm memasukkan kehidlran mereka ms\a|ui Memrammm Kensmvan an Lampiran E‘ (b) Femyaxaan Tunlulan Tarplnda an Lamplran 15 man dxserahkan kepads Delenaarmelendan, dan (c) Afidavlt Sukongan dw Lampwan 1s (e\ah memenum kenendax- kenendak dalam Amran 14 Kaedah 2 KKM 2012. [271 Dalam hal im, memanuangxan prhak mamm ls\ah memenum kesemua pra—syara| tersebm, beban psmnulman berahh kepada pmak ne4endan—DeIenaan unluk membangknkan isu-xsu yang perm dwbicarakan hag? mengnaxang penghakiman (ems dlmasukkan (emsdap mereka [25] Se(e\ah menelm perenggan a den 6 Pamyanaan Pembelaan De¢endanrDe(andan di Lampivan :1 dan penyala akaun .11 Lampxran 21, Mahkamah Im mendapau bahawa Delenaanoeienasn mak msnankan 11 wmudnys Pemmayaan dan Jamlnan Ksrsebut namun hanya mempemkalkan ;um\ah yang mmnwz o\sh plhak Plamm, Mahkamah Ini mendapah uada pembelaan bermenl di plhak Dsiendanrflelenflsn Oleh yang demwkian, Mahkamah ini membsnarkan penghakiman Iems dimasukkan lemadap mereka KESIMEIILAN [29] Eerdasarkan kepads alasan-alasan yang dmtarakan an alas, Mahkamah uni [elem mengambll kira kesemua kenas kausa berkauan‘ hujahan benulrs clan hujahsn balas pmak-pmak unluk memberikan penmah yang dmyatakan di pfrenggan 2 dx alas. A/54/\;L0 NOR HASNWAH BINTI AB RAZAK Ham Mahkamah sesyan Vpoh aenankh 17 November 2023 Eagw pmax PIam|i1' Fr: Wan Suvayya mm. Am-:1 Hallm dan En Mohamed Nxzam hm Mohamed sallen Peguamnewa flan Peguamcara Teluan Maxweu Kenyon Cuwdy 1. James Bagi pihak Defsndarh Pn Divwya a/p Mumah Defendan. Peguambela dan Psguamcara Teluan Kula 5. /usacnes [2] Pads 6 Oklubsr 2023‘ Mahkamah W atas Imbangan ksbsrangkalian (e\ah memben kepulusan dengan mambenarkan permuhunan Pnaunw m Lamplrsn 17 sebagaxmana benku|. ta) (M 19) (d) [3] Jurvflah wanq sebanyak RM2e7,73513 yang mm selakal 6 5.2023. Kadar keumungan pada 1AOD% selahun yang dlkwe secava hmanan ke alas 1-man wang sabanyak RM2E7,73513 dari 7.5 2023 hmgga lankh penyelesanan wmlsh pengnakiman, Pampasan/gamirugx kelewalan hayavan jugs dlksnakan ke alas amaun lerlunggak ranu paaa kadar 1% selahun yang mkira secara Hanan dan hagx kegagsxan umuk memhusl bayaran selepss lempoh matang ksmuuanan, Plsmm berhak untuk mengenakan kadar bemasarkan kepada Fasaran Kewangan Islam a|au pads ksdar lam yang duenmkan aleh Bank Negara Ma\aysia nan mesa ks semase ke abs jumlah yang (srtunggak yang .1. Va dan lankh penu dmayar sehingga penyelesakan penuh clan jurvflah uampasan Iersehul hdak buleh mkompaunkan‘ dan Kos pevmohunsn mi dlbayar oxen Defendanflefendan kspada Plairmf sebanyak RM3 nbu pampasan mengnkut Kadar semasa Tvdak berpuas hali dengsn kepmusan Mahkamah ml‘ De1endan- Defendan (emu menlailkan rayuan was Nous Rayuan berlarikh 19 Oklober 2023 ks Mahkamah Tlnggw N] Bag! Permuhonan mi. Mahkamah mu‘ |elah mane!" ksnawenas kausa yang benkut (3) 1:! (0) (d) (E) 10 W (U U! lk) wm saman Terpunda [Lampuan 141 dan Pemysxaan Tunmlan Terplnda banarikh 15 7 2022 [Lampirzn 15]. Memorandum Kehadiran Delendsn-Defendan benankh 25 2.2022 [Lampiran 5]. Psmyalaan Pembelaan Devendan-Devendan benankh 25,4 2022 [Lampuan H]. Jawapan kspada Pemnexaan benankh 25.3 2022 [Lampiran cs], Lamplran 11. Afldawl Sakongan com Keng Bonn yang dukrarkan pada a 9 2022 [Lampman 1s], Afidavil Jawapan Pannusamy a/I cnemah yang krarkan pada 2a 10.2022 [LampIran19]: Amsvix Ealasan som Keng Boon yang dukvarkan pada 22 11 2u22 [Lamprren 2n], Afidavm Tambshan Pannusamy an cnemah yang dukrarkan pada 15.4 20223 [Lampiran 27], Afidavn Balasan Kedua Jsgalhes Nam a/V Balssundrarn yang dfikrarkan pada 3.5 m2: [Lampvan 23] 1. den Almam Jawapan Ksdua Fonnusamy all Chelhah yang Ikravkan Dada 7 7.2023 [Lampm 291. 5 NGKASAN FAKT5 555 ram kes sebagaumana Lampman 15 adalah sepsni benkul. 15] Plainuf aaalan syankal hank baflesen yang beralsmat m Level 25‘ Equamnau Plaza. Jalsn s-man vsmaix, 50250 Kuala Lumpur nan mempunyax sebuan cawangannya m Na so-as, Ja\an 52/4‘ Ground swoon 4s2on Pelaling Jays, sawangor [5] Delendan Panama adalah mempakan pelanggan dan pemmjam kepada kemudahan EizFmancmg—r [with SJPP-W0 Cap|la\ Guarantee Scheme (wcrssp Gain-an|ee) (sslepas danpada ml disebm sehagax ‘Fembwayaalfl yang diberikan alen Plammdan mempunyai alsmat dx 12A Ja\an Je\aparIg, Taman Slllbin‘ 30100 Vpuh, Parak [71 Delendan Ksdua aaaxah merupaksn salan seuvang peniamin kepada Defender: Panama din mempunysw awaman av 25, Laluan Falim 9, Tamar! Fahm Indah, suzou Vpuh‘ Psrak [6] Defendan xeuga wga mempakan salah searang penjamm kepada De!sm1an Panama aan mempunyaw a\amal di 25, Perslavan Wlra Jaya Timer :2‘ Tamar: Rapal, 31:50 lpnh, Perak [9] Pramm me\aIu\ satu sural |awar:n henankh 22 7.2019 tselapas danpada im drsebul sebagai ‘Surat Tawaran') dan sa|u 5ura( makluman bsrlavikh 31.72021 |e\ah memakmmkan Defendan Penama bahawa permahunan nsvendan Panama bagx Pemmayaan |ersebul yang beuurmah RM5ou,uou on te\ah diluluskan [10] Pemblayaan Iersehm adalah pemhiayaan syanah yang rnana ia berasaakan kepada konsep murabahah (comnm-my murabahah) [11] Sebagai balssan kepada Pembiayaan yang dibsnkan olsh P\amIW |ersebut, Delsndan Panama perm menmayar banx Fanunayaan lersebut secara ansuran bulanan sebanyak RM1xsa4.13 (Rmggn Sebe\as Rwbu Enam Rama nga Pulun Empa( dan Sen Tvga aawasp aanaja bag: Iempoh so bulan nan kadar kaunmngan yang mkenalcan sdalah sebanyak 14.nov, selahun [121 Delendan Kedua dan Delendan Keflga le\ah menandalsngam sam Jamman benarikh 31 72019 sehagai psruamm umuk merqamm pembayavan balik Pembiayaan yang lelah anmuskan narsemn dan dibenkan men P\amtW kapaaa Delendan Panama [131 Laruulan danpsds mu, Daren-ian-Dsvanuan «even unemungkm (ermar nenna Surat Tawaran |ersebu| apabila gagal membual pembayarsn bank ansuvan nuvanan bagr Pemblaysan Iersebul my Plain“! metarm psguamcaranya yang lerdshulu Tetuan Atmn 5. Farmers man mengemarkan sa(u sum mnnman benankh 13.5 mm (smepas danpada Im dlsebul sebagaw ‘Surat Tunlularf) kepada Defandanr Davenaan bagi menamalkan Femblayaan Iersebm dan menun(u| mmlah yang (erhutang yang berjurmah RM544,m.12 yang amra selaksl 133.2021 [151 Walau zaagawnanapun DeferIdan—Delendan sehmgge hari um masin snggan. Ingkar dam/a|au gagax unhlk membayar yumlan yang Iemumng IersebuL Semkat 20102021‘ jumlan yang Kemmang men nevenaan Delendan adalah sebanyak RM53z,ea2 04. [16] Plamlll le\ah menfsflkan lmdskan im an Mahkamah bagl msmmtul danpada Delenaanoelenaan secara bersesama dan/alau bevasingan umuk— (aj Jurmah wan; sebanyak RM532,sa2.m yang d ra setskal 20102021, my Kaaar keunlungan pad: ¢4.no% secamn yang dilwa secara bulanan ke alas yunuan wang sebanyak RM532.6B2 n4 dari 21 w.2n21 hmgga tankh penyelesawan yumlan penghaklman; (vs) Fampasan/ganumgi kelewalan bayaran juga dukenakan ke atas amaun lerlunggak ianu pads kadar 1% selahun yang dlkura secsra hanan dan nagx kegagaxan unluk nuemhuax bsyaran selepas Iempoh malzng kamudahan, Plamm berhak unluk mengenakan kadar pampasan menglkul kadar semasa berdasarkan kepada Pasaran Kswangan wslam emu pada kauar Vam yang dilsnlukan oreh Bank Negara Mzlaysxa dari mesa ke samasa ks alas yunuan yang lerlunggak yang dmra dari tarlkh perm dvbayav sehmgga penyewessuan pemm darn ]um!ah pampasan l.ersebu| wax bnleh mxompaunxan, (a) N75‘ to Vuranmahkamah Rmzoaaa (up Kosbakwasn RM1,uuouo RM1.2DE on (ep Lam-ram rem yang difikivkan sesuai dan manvaax oven Mahkamah Yang Muha ml. PERMONQNAN PLAINTIF [17] Lampiran 17 dlmasukkan Flainlll Imluk perwnlarrpenniah senagamana dw perenggar-1 an alas [16] Alasan-alasan permohonan adalah sepem benkul (a) Defendan-Deiendan sedang dan pemah pada mass bennmanya Imdakan ml dengan sepalulnya nan sebenarnya berhmang dangan dl alas mmlah Wang sebanyak RM532582 04 yang dikm setak/3120 10 2021, dan (h) Delendan-Ddendan Imak mempunyar sebarang psmbe¥aan yang bermenl lsrhadap hm|utan Flavmif mpngu MAHKAMAfl [19] Sebagal nuukan‘ Amran 14 Kaedah 1 KKM 2012 msmpemmukkan nanawa » -Apanaanan Dyplamilllfarsummaryjudgmsntifl my 1) 1. u) Wham In an scfion Ia wmch nus rule apples 1 § atsmentoldgrm rug; oaan um gn a defifignt and 43: dc/-mi-ant has gnma an am In Me a ' ma ar on ma that r d an! naa n nae rm my I win an mama: arxaf adalmov nod Iaaucha ‘ovuflth pm: as to mg gmounl ofany ¢amagaa gmaa any in II; gear: ray udqmen §_q_|‘gst1Ival1gbndzn! (2; swan m pmgrapn 43), tfus Ms same: to evary amen bogun by wn: other mm (.3) a darn. ny me p/nmlfl for /rbe/, xlendan mahmaus pmsamtran‘ varaa unpnaonrnenr, ssduchon or nnaacn or mum of manrage; or my a c/arm by ma ylarnnflbaaed on an anegau/an cl naua. 13; nus Outer aaaa no: aygly In an aclran 10 we». Order 51 Eflnbex 3. (1; mass on the neanng or an application under rule 1 arms! lhe Cam disrvussex ma spphcalmn at m. defendant satisfies me Court wim Inspect in ma mum, or ma pan ofa alarm, ta wmcn me app/fcatron rulalss (ha! male rs an Issue m aueslmn In mspma wmcn aagn: lo he mad or that (here ought /07 some ulhsr mason to as a mar onna: c/elm orpafl, m_e we man ma an-HF 051 twat am on ham/arm aa ma st new: I a In Me na nna mnaa wgmgama (2) ma cam may by order, and misc: (0 such oonmflona, if any, as may be /us!, stay me axacumn olsnymogmznf gmn sgamsl a dalendirvt under nus rule unm arm me Mal Many caunlarda/m made enema by the defendant in ma acnon ' [penekanan mtamlxahl am uuwmuumaswflwkumm «mm. Snr1I\nanhnrwH\I>e U... a my a. nflmnlflly am. flnuamnl VI mum Wm‘ [20] Tervupst banyak amrm yang man membmcangkan bsrkenaan pra- syaral ds\am pemmhunan pengha an (arm di bawah Aluran 14 Kasdah 1 KKM 2012 Mahkamah imerujuk kspada kes Mahkamah Parsekutuan Nauonal Cnmpany for Forexgn T.-sue v Kayu Raya Sdn and [1934] 1 cu Rep 253 d\ mans YAA Hakim Genvge Ssah menyalakan bahawa » We mm n appmonate to rurmrui omsrvss once agent that m every applmahon mum Order 14 the m4 mnmderalrans an (11 Whether ma case comes wvmm ms Order.‘ and 42; whether Ihs plammr ms seamed we preliminary ruqmremervrs /bl pmoeerling under um: 14. Fol me purposes nlan sppucamn under Ordsr 14 ms flnminm ggwemm; ale: mew mnmm snleredsrv an u we memo: uslnava nssn/ed we r m m armm. 5 al .3 car‘ mu51eo m ms regmieggn 5 oYRulg 2 ohm: Omar 14 1: is to be ahservsd than case rs not mm" o. 14' (a) whsrs no atalemsrvt or claim has been served on the dslhndalvl.‘ (o) where (he Inaersumsm an ms wm Includes a claim or c/arms outsrds ms mos A2! 0 14 as comma within 7 1(2)‘ 1:) where the slfidavlt m support or m. app/rcalran rs us/saws, a 9 W WW-9 to stars lbs .1.pansm's belie! ma! mm is no delsncs to Ina mm. or pan In which Ms appltcatfun relates, (.1; were ms spphcalronis made m an action agarnstma aovemmenuo 73 7 5m 1 /1 me plalntfll far/5 m satisfy arms! of Mesa mnslclavslrnrvs, me summons may D5 clrslmssed vr Aawem, moss mm glrans gm gittsfisd an /arrmll mu ave «mm; .1 a In case an mm: ed 1» ud :. The n then m’ the as n m to my 9 Cam w ud men: I111-ml n 5 am rm [see 0 Hr. 3and4(1)]." [penakanan dilambah] smuuwrkuu mwmm. “Nana Snr1I\na?h2nrwH\I>euIe«-Ila:vunymenflmnnfllyMIMIflnu.mnlvnnF\|.INfl W

Tika 2.6.0 & Pytesseract-0.3.10

83-18-02/2020

PENDAKWA RAYA Pendakwa Raya [Jabatan Kastam Diraja Malaysia (KDRM)] TERTUDUH LIONG MENG SOH

Seksyen 135(1)(d) Akta Kastam 1967 -Tertuduh dengan disedari memiliki barang-barang larangan kastam - Perintah Kastam (Larangan Mengenai Import) 2017 - Perbuatan Tertuduh yang sedang menyusun barang serta terkejut dengan kehadiran pasukan serbuan membuktikan elemen milikan dan pengetahuan - Sama ada kandungan eksibit yang tertukar dalam dua sampul berbeza menyebabkan terputusnya rantaian keterangan - Sama ada nama rokok yang berbeza dalam eksibit menyebabkan terputusnya rantaian keterangan - Sama ada Tertuduh berjaya mematahkan anggapan undang -undang terhadapnya

17/11/2023

Puan Tengku Eliana Binti Tuan Kamaruzaman

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Microsoft Word - pdf GOJ Liong Meng Soh _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 1 DALAM MAHKAMAH MAJISTRET DI KEMAMAN DALAM NEGERI TERENGGANU DARUL IMAN, MALAYSIA [KES JENAYAH NOMBOR: 83-18-02/2020] ANTARA PENDAKWARAYA DAN LIONG MENG SOH (NOMBOR KAD PENGENALAN: 900328-11-5869) ALASAN PENGHAKIMAN A. PENGENALAN [1] Tertuduh dalam kes ini telah dituduh melakukan kesalahan di bawah seksyen 135(1)(d) Akta Kastam 1967 dan dihukum di bawah seksyen 135(1)(v)(aa) Akta yang sama. Latar belakang [2] Pertuduhan yang dikemukakan oleh pihak Pendakwaan terhadap Tertuduh adalah seperti berikut: Pertuduhan Pindaan: 17/11/2023 16:11:32 83-18-02/2020 Kand. 103 S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 2 Bahawa pada 09/02/2020 jam lebih kurang 6.10 petang di tepi jalan, Jalan Pantai Kemasik, Kemaman Terengganu di dalam daerah Kemaman, di dalam Negeri Terengganu dengan disedari memiliki barang-barang larangan kastam di dalam motorkar jenis Proton Waja bernombor pendaftaran CBJ 346 iaitu: 1. 42 karton x 10 paket x 20 batang rokok jenama John D’Blend 2. 16 karton x 10 paket x 20 batang rokok jenama U2 Full Flavour 3. 43 karton x 10 paket x 20 batang rokok jenama John White W5 4. 18 karton x 10 paket x 20 batang rokok jenama Canyon (Merah) 5. 25 karton x 10 paket x 20 batang rokok jenama Saat (Merah) 6. 10 karton x 10 paket x 20 batang rokok jenama Canyon Blast 7. 8 karton x 10 paket x 20 batang rokok jenama John F1 8. 12 karton x 10 paket x 20 batang rokok jenama League Ice 9. 25 karton x 10 paket x 12 batang rokok jenama Gudang Garam Surya 10. 8 karton x 10 paket x 12 batang rokok jenama Gudang Garam Nusantara (Merah) 11. 17 karton x 10 paket x 12 batang rokok jenama Gudang Garam Nusantara (Hijau) yang telah dianalisa oleh Jabatan Kimia mengandungi tembakau serta tembakau dan cengkih. Ditaksirkan bernilai RM7,007.20 dan melibatkan cukai sejumlah RM8,160.00 yang mana barang- barang tersebut adalah barang yang dilarang pengimportannya di bawah Perintah Kastam (Larangan Mengenai Import) S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 3 (Pindaan) 2017 dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 135(1)(d) Akta Kastam 1967 yang boleh dihukum dibawah seksyen 135(1)(v)(aa) Akta yang sama. PERUNTUKAN DENDA DI BAWAH SEKSYEN 135(1)(v)(aa) Denda tidak kurang daripada sepuluh kali ganda nilai barangan iaitu RM70,072.00 atau RM100,000 yang mana lebih tinggi dan tidak lebih daripada dua puluh kali ganda nilai barangan iaitu RM140,144.00 atau RM500,000 yang mana lebih tinggi atau boleh dipenjarakan selama tempoh tidak kurang daripada 06 bulan dan tidak melebihi 5 tahun atau kedua-duanya. PERUNTUKAN PEMBAYARAN CUKAI DI BAWAH SEKSYEN 119(1) AKTA KASTAM 1967 Membayar cukai RM8,160.00 kepada Ketua Pengarah Jabatan Kastam Diraja Malaysia. PERUNTUKAN LUCUTHAK DI BAWAH SEKSYEN 127(1) AKTA KASTAM 1967 Melucuthak kesemua rokok dan motorkar jenis Proton Waja kepada Jabatan Kastam Diraja Malaysia untuk dilupuskan. [3] Pada 04/08/2020, Pertuduhan Pindaan telah dibacakan kepada Tertuduh dalam Bahasa Malaysia. Tertuduh telah faham akan Pertuduhan Pindaan yang telah dibacakan dan mohon kes untuk dibicarakan. S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 4 [4] Di peringkat Kes Pendakwaan, pihak Pendakwaan telah memanggil seramai 07 orang saksi untuk memberi keterangan. B. KETERANGAN KES PENDAKWAAN Saksi – Saksi Pendakwaan [5] Berikut adalah senarai Saksi-saksi Pendakwaan yang telah dipanggil oleh pihak Pendakwaan: SP1 : Mohd Khairi bin Abd Ghani (Ketua Pasukan Serbuan) SP2 : Syairen Nordina binti Shawaludin (Pembantu Pegawai Stor) SP3 : Mohd Azmi bin Ahmad (Anggota Serbuan) SP4 : Mohd Anuar bin Harun (Pegawai Penilai Dan Klasifikasi) SP5 : Zuzilawati binti Hassim (Ahli Kimia) SP6 : Mohd Shafizi bin Ab Aziz (Ahli Kimia) SP7 : Mohd Azrul Aminur Rashid in Mohd Sidek (Pegawai Penyiasat) Eksibit-Eksibit: Lampiran A : Pemberian Kuasa (Md. Safrizal bin Mohd Safian) S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 5 Lampiran B : Pemberian Kuasa (Muhammad Adam bin Zahid) Lampiran C : Pemberian Kuasa (Nur Zahidah binti Razali) P1 : Pertuduhan Pindaan. P2(A) dan P2(B) : Borang Bongkar D1-1 dan Lampiran A & Borang Bongkar D1-2 dan Lampiran A. P(3) hingga P3(27) : 27 keping gambar lokasi kejadian dan barang kes yang ditemui. P4 : Pelan Lakar lokasi. P5 : Notis Sitaan bertarikh 09.02.2020. P6 : Notis Lucuthak bertarikh 09.02.2020. P7 : Ayer Jerneh Report 000129/20. P8 : Borang Serahan Kes bertarikh 09.02.2022. P9 : 01 buah motorkar jenis Proton Waja bernombor pendaftaran CBJ 346. P10 : 01 batang anak kunci kenderaan Proton dan alat kawalan jauh (remote control). P11 : 01 plastik berwarna hitam dengan tandaan ‘B1’. P12(A) hingga P12(L) : 12 karton Rokok John D’Blend. P13 : 01 plastik berwarna hitam dengan tandaan ‘B2’. P14(A) hingga P14(F) : 06 karton Rokok John D’Blend. P15 : 01 plastik berwarna hitam dengan tandaan ‘B3’. P16(A) hingga P16(L) : 12 karton Rokok John White. S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 6 P17 : 01 plastik berwarna hitam dengan tandaan ‘B4’. P18(A) hingga P18(G) : 07 karton Rokok John White. P19 : 01 plastik berwarna hitam dengan tandaan ‘B5’. P20(A) hingga P20(J) : 10 karton Rokok Saat (Merah). P21 : 01 plastik berwarna hitam dengan tandaan ‘B6’. P22(A) hingga P22(E) : 05 karton Rokok Saat (Merah). P23 : 01 plastik berwarna biru dengan tandaan ‘B7.’ P24(A) hingga P24(E) : 05 karton Rokok Kretek Gudang Garam Surya. P25 : 01 plastik berwarna hijau dengan tandaan ‘B8’. P26(A) hingga P26(Q) : 17 karton Rokok Kretek Nusantara (Hijau). P27 : 01 plastik berwarna hitam dengan tandaan ‘B9’. P28(A) hingga P28(H) : 08 karton Rokok Kretek Nusantara (Merah). P29 : 01 plastik berwarna hitam dengan tandaan ‘A1’. P30(A) hingga P30(L) : 12 karton Rokok Putih John D’Blend. P31 : 01 plastik berwarna hitam dengan tandaan ‘A2’. P32(A) hingga P32(L) : 12 karton Rokok Putih John D’Blend. P33 : 01 plastik berwarna hitam dengan tandaan ‘A3’. S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 7 P34(A) hingga P34(L) : 12 karton Rokok Putih John White. P35 : 01 plastik berwarna hitam dengan tandaan ‘A4’. P36(A) hingga P36(L) : 12 karton Rokok Putih John White P37 : 01 plastik berwarna hitam dengan tandaan ‘A5’. P38(A) hingga P38(J) : 10 karton Rokok Putih (Saat Merah). P39 : 01 plastik berwarna hitam dengan tandaan ‘A6’. P40(A) hingga P40(P) : 16 karton Rokok Putih U2 Full Flavour. P41 : 01 plastik berwarna hitam dengan tandaan ‘A7’. P42(A) hingga P42(R) : 18 karton Rokok Putih Canyon (Merah) P43 : 01 plastik berwarna hitam dengan tandaan ‘A8’. P44(A) hingga P44(J) : 10 karton Rokok Canyon Blast (Menthol). P45 : 01 plastik berwarna hitam dengan tandaan ‘A9’. P46(A) hingga P46(H) : 08 karton Rokok Putih John F1. P47 : 01 plastik berwarna hitam dengan tandaan ‘A10’. P48(A) hingga P48(L) : 12 karton Rokok Putih League Ice. P49 : 01 plastik berwarna biru dengan tandaan ‘A11’. P50(A) hingga P50(T) : 20 karton Rokok Kretek Gudang Garam Surya. S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 8 P51(A) dan P51(B) : Borang Penyerahan Barang Kes bertarikh 9.2.2020 (Lampiran A) dan Butir-butir Kenderaan/Bot/Kontena bertarikh 9.2.2020 (Lampiran B). P52 : Muksurat 20 Buku Daftar Barang-Barang Rampasan Nombor Surat Siasatan: KE.TE(79)778/2020-14. P53 : Borang Mengeluarkan Barang Kes Untuk dibawa ke Jabatan Kimia (Lampiran C) bertarikh 11.02.2020. P54 : 01 sampul berwarna coklat bertanda ‘A’ berpelekat Jabatan Kimia Malaysia. P55 : 01 Borang Mengeluarkan Barang Kes (Lampiran C) untuk dibawa ke Jabatan PERTEK (untuk tujuan Penjenisan) bertarikh 20.05.2020. P56 : 01 sampul berwarna coklat bertanda ‘C’ dengan bermeterai Pelekat Keselamatan ‘JKDM Nombor 35455’. P57 : 01 Borang Mengeluarkan Barang Kes (Lampiran C) untuk dibawa ke Jabatan PERTEK (untuk tujuan Penjenisan) bertarikh 20.05.2020. P58 : 01 sampul berwarna coklat bertanda ‘B’ dengan pelekat keselamatan ‘JKDM Nombor 35456’. S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 9 P59 : 01 Surat Permohonan Penilaian Harga dan Cukai Bagi Rokok Kretek, Rokok Putih Bagi Siasatan di bawah Akta Kastam 1967 bernombor rujukan surat KE.TE(79) 778/2020-14 bertarikh 20.05.2020. P60 : 01 Surat Permohonan Penjenisan Barang Kes Sitaan Bahagian Penguatkuasaan bernombor rujukan surat KE.TE(79) 778/2020-14 bertarikh 20.05.2020. P61(A) hingga P61(K) : 11 paket rokok di dalam ID58 iaitu 01 sampul berwarna coklat bertanda ‘B’ dengan pelekat keselamatan ‘JKDM Nombor 35456’. P62 : 01 surat Keputusan Permohonan Penilaian Kastam ke atas Barang Sitaan Selain Kenderaan oleh Bahagian Penguatkuasaan/Pematuhan Jabatan dan Agensi Penguatkuasaan Luar bernombor rujukan surat KE.TE(79) 778/2020-14 bertarikh 05.07.2020. P63(A) hingga P63(K) : 11 paket rokok di dalam ID56 iaitu 01 sampul berwarna coklat bertanda ‘C’ dengan bermeterai Pelekat Keselamatan ‘JKDM Nombor 35455’. P64 : 01 surat maklum balas Keputusan Klarifikasi Barangan Kes Bagi Kes Penguatkuasaan bernombor rujukan surat KE.TE(79) 778/2020-14 bertarikh 11.06.2020. S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 10 P65 : 01 surat Memohon Pemeriksaan Kimia ke atas eksibit Kes Kastam Terengganu bernombor rujukan surat KE.TE(79) 778/2020-14 bertarikh 11.02.2020. P66 : 01 Resit Rasmi Jabatan Kimia Malaysia bernombor Makmal T(IK)00009/20 bertarikh 11.02.2020. P67(A) hingga P67(K) : 11 kotak/paket rokok pelbagai jenama. P68 : 01 Laporan Kimia/ Laporan di Bawah Seksyen 399 Kanun Tatacara Jenayah bernombor Makmal T(IK)00009/20 bertarikh 25.02.2020. P69 : 01 Surat Permohonan Pemeriksaan Kimia ke atas Eksibit Kes Kastam Kemaman bernombor rujukan surat KE.TE(79) 778/2020-14 bertarikh 11.02.2020. P70 : 01 Laporan Kimia/ Laporan Di Bawah Seksyen 399 Kanun Tatacara Jenayah Nombor Makmal 20-FR-T-01539 bertarikh 28/06/2020. P71 : Nilai Cukai Yang Terlibat Bagi Kertas Siasatan KE.TE(79)778/2020-014. P72 : Perintah Kastam (Larangan mengenai Import) 2017. P73 : Surat Memohon Cabutan Pendaftaran Dalam Siasatan Di Bawah Seksyen 101 Akta Kastam 1967 bertarikh 03 September 2020. S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 11 P74(A) hingga P74(C) : Maklum Balas JPJ (termasuk Maklumat Terperinci Kenderaan dan Insurans bertarikh 03/09/2020) dan Sijil Perakuan di bawah Seksyen 90A Akta Keterangan 1950. P75(A) hingga P75(F) : 06 Borang Mengeluarkan Barang Kes Untuk Dibawa ke Mahkamah. Fakta kes [6] Fakta kes yang dibentangkan oleh pihak Pendakwaan secara ringkasnya adalah seperti berikut: i) Pada 09/02/2020, sebuah pasukan serbuan dari Bahagian Penguatkuasaan, Jabatan Kastam, Kemaman yang diketuai oleh SP1 telah terlibat dalam operasi penjualan rokok seludup di sekitar bandar Kerteh dan Kemaman, Terengganu. Pada hari yang sama, jam lebih kurang 6.10 petang, pasukan serbuan tersebut telah terserempak dengan sebuah kenderaan jenis Proton Waja bernombor pendaftaran CBJ 346 (P9) yang diparkir di tepi jalan, Jalan Pantai Kemasek, Kemaman, Terengganu. ii) Sewaktu SP1 dan SP3 menghampiri kenderaan P9 tersebut daripada bahagian hadapan, didapati enjin kenderaan P9 tersebut dalam keadaan dihidupkan. Sewaktu kejadian, selain P9 dan kenderaan pasukan serbuan, tiada kenderaan lain mahupun orang awam di sekitar kawasan tersebut. Menurut SP1 dan SP3, hanya Tertuduh seorang sahaja yang berada di dalam S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 12 kenderaan P9 tersebut, iaitu di bahagian tempat duduk belakang sebagaimana tandaan ‘X’ pada gambar tempat kejaidan, P3(8). iii) SP3 yang merupakan anggota serbuan menyatakan bahawa sewaktu kejadian Tertuduh yang sedang menyusun barang, dalam keadaan terkejut apabila menyedari kehadiran pasukan serbuan. Hasil pemeriksaan lanjut oleh SP1 dan SP3 ke atas kenderaan P9 tersebut mendapati terdapat rokok pelbagai jenama iaitu eksibit P11 sehingga P50(A) hingga P50(T). SP3 telah mengambil gambar-gambar tempat kejadian sebagaimana P3(1) hingga P3(27) dan juga melukis Rajah kasar (P4). Barang- barang kes telah disita oleh SP1 sebagaimana Notis Sitaan (P5). Borang Bongkar adalah sebagaimana P2(A) dan P2(B). iv) Tertuduh bersama P9, P10, P11 sehingga P50(A) hingga P50(T) telah dibawa ke Pejabat Penguatkuasaan Kastam Cawangan Kemaman dan diserahkan kepada Pegawai Penyiasat, iaitu SP7. Serahan dilakukan melalui Borang Serahan Kes bertarikh 09.02.2022 (P8). v) Hasil siasatan SP7 mengesahkan bahawa sebagaimana P74(A) hingga P74(C), Tertuduh merupakan pemilik berdaftar kenderaan P9. vi) Keputusan Permohonan Penilaian Kastam ke atas Barang Sitaan Selain Kenderaan (P62) dan Keputusan Klarifikasi Barangan Kes Bagi Kes Penguatkuasaan bernombor rujukan surat KE.TE(79) 778/2020-14 bertarikh 11.06.2020 (P64) disediakan oleh SP4, sebagaimana permohonan oleh SP7. S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 13 vii) Hasil analisa SP5 (sebagaimana Laporan eksibit P68) telah mengesahkan bahawa bahan tumbuhan di dalam rokok-rokok yang dirampas “A6(1)-1” hingga “A10(1)-1”,”B2(1)-1”, “B4(1)-1” dan “B6(1)-1” mengandungi tembakau, manakala rokok-rokok yang dirampas “B7(1)-1”, “B8(1)-1” dan “B9(1)-1” mengandungi tembakau dan cengkih. C. ELEMEN PERTUDUHAN DI BAWAH SEKSYEN 135(1)(d) AKTA KASTAM 1967 [7] Pertuduhan terhadap Tertuduh melibatkan Pertuduhan Pindaan di bawah Seksyen135(1)(d) Akta Kastam 1967 yang memperuntukkan: “135. Penalty relaring to smuggling offences, evasion of duty, fraud, etc. (1) Whoever - (d) knowingly harbours, keeps, conceals, or is in possession of, or permits, suffers, causes or procures to be harboured, kept or concealed, any uncustomed or prohibited goods; shall be guilty of an offence and shall, on conviction – (v) in the case of cigarettes containing tobacco or intoxicating liquor which are prohibited goods - (aa) be liable for the first offence to a fine of not less than ten times the value of the goods or one hundred thousand ringgit, whichever is the greater amount, and of not more than twenty times the value of the goods or five hundred thousand ringgit, S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 14 whichever is the greater amount, or to imprisonment for a term of not less than six months and not more than five years or to both;" [8] Sebagaimana yang diputuskan oleh YA Ahmad Shahrir Mohd Salleh Pendakwa Raya v Park In Keun & Anor [2021] 1 LNS 1092, intipati- intipati kesalahan di bawah Seksyen135(1)(d) Akta Kastam 1967 yang perlu dibuktikan oleh pihak Pendakwaan adalah secara ringkasnya sebagaimana berikut: a) Pada tarikh, masa dan tempat kejadian, Tertuduh dengan disedarinya mempunyai dalam milikannya barang larangan import iaitu (seperti yang disenaraikan di atas); b) Hal perkara bernilai RM7,007.20 adalah barang yang dilarang pengimportannya kecuali dengan cara yang diperuntukkan di bawah Perintah Kastam (Larangan Mengenai Import) (Pindaan) 2017 dan cara tersebut tidak dipatuhi; dan c) Bahawa Tertuduh mempunyai pengetahuan ke atas rokok- rokok tersebut dan rokok- rokok tersebut adalah barang larangan import. D. PENILAIAN KETERANGAN KES PENDAKWAAN DALAM MENCAPAI ELEMEN PERTUDUHAN [9] Mahkamah ini telah meneliti keterangan kesemua 07 orang Saksi Pendakwaan berserta eksibit-eksibit dan juga dokumen yang telah dikemukakan dan setelah menilai keterangan-keterangan tersebut secara S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 15 maksimum sama ada elemen-elemen/intipati-intipati dalam Pertuduhan yang dipertuduhkan terhadap Tertuduh berjaya dibuktikan: i) Intipati (a): Pada tarikh, masa dan tempat kejadian, Tertuduh dengan disedarinya mempunyai dalam milikannya barang larangan import iaitu (seperti yang disenaraikan di atas). [10] Pihak Pendakwaan dalam Intipati (a), perlu membuktikan bahawa Tertuduh pada 09/02/2020 jam lebih kurang 6.10 petang di tepi jalan, Jalan Pantai Kemasik, Kemaman Terengganu di dalam motorkar jenis Proton Waja bernombor pendaftaran CBJ 346 dengan disedarinya mempunyai dalam milikannya barang larangan import (seperti yang disenaraikan di atas). [11] Mahkamah merujuk kes Pendakwa Raya v Park In Keun & Anor [2021] 1 LNS 1092, yang mana dinyatakan bahawa: “[22] In Chan Pean Leon v. PP [1956] 1 LNS 17; [1956] 1 MLJ 237; [1956] 1 MLRH 44, the court remarked that there can be no possession without knowledge and there can be no possession without some power of disposal. The court hasten to add that the most important ingredient of all in determining whether one has possession is whether there was an intention as the owner, in case of need, to exercise that power of disposal to the exclusion of other persons. This is commonly referred to as the animus possidendi. In illustrating the meaning of the term “possession,” His Lordship Thomson J. observed said as follows: “ ‘Possession’ itself as regards the criminal law is described as follows in Stephen’s Digest (9th Ed page 304): A movable thing is said to be in S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 16 the possession of a person when he is so situated with respect to it that he has the power to deal with it as the owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in the case of need..” [12] Berdasarkan keterangan SP1 dan disokong oleh keterangan SP3, didapati bahawa Intipati (a) telah berjaya dibuktikan iaitu Tertuduh dengan disedarinya mempunyai dalam milikannya barang-barang larangan import iaitu eksibit P11 sehingga P50(A) hingga P50(T). Pemilikan Tertuduh ke atas barang kes juga disahkan melalui keterangan SP1 dan SP3 bahawa pada masa material hanya Tertuduh berada di dalam kenderaan P9 tersebut, tiada individu atau kenderaan lain di sekitarnya kecuali kenderaan P9 dan kenderaan jabatan/pasukan serbuan. Menurut SP1 dan SP3 juga, semasa kejadian enjin kenderaan dalam keadaan dihidupkan dan kesemua pintu kenderaan dalam keadaan tertutup. [13] SP3 semasa Pemeriksaan Balas telah menyatakan bahawa ‘Daripada luar kita nampak dia sedang menyusun barang’. Seterusnya apabila ditanya lagi oleh Peguambela, SP3 telah menjawab bahawa ‘Dia tengah susun barang, saya nampak. Dia diserbu oleh Ketua Pasukan. Dia terkejut selepas itu’. Maka, adalah jelas bahawa semasa serbuan dilakukan, Tertuduh dengan disedarinya mempunyai dalam milikannya barang-barang larangan iaitu eksibit P11 sehingga P50(A) hingga P50(T). Pada ketika itu, Tertuduh mempunyai kawalan serta jagaan terhadap rokok-rokok tersebut. [14] Tambahan lagi, SP7 semasa memberi keterangan telah menyatakan bahawa beliau telah membuat permohonan cabutan S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 17 pendaftaran kenderaan, yang mana hasil Maklum Balas JPJ (termasuk Maklumat Terperinci Kenderaan dan Insurans bertarikh 03/09/2020) iaitu P74(A) hingga P74(C) telah mengesahkan bahawa kenderaan CBJ 346 iaitu P9 tersebut dimiliki oleh Tertuduh sendiri. Sebagai pemilik berdaftar kenderaan P9, Tertuduh sememangnya mempunyai ‘power of disposal to the exclusion of other persons’ terhadap rokok-rokok yang dirampas memandangkan rokok-rokok tersebut dijumpai di dalam kenderaan yang dimiliki serta dinaiki oleh Tertuduh semasa kejadian. [15] Oleh yang demikian, intipati ini telah berjaya dibuktikan oleh pihak Pendakwaan. ii) Intipati (b): Hal perkara bernilai RM7,007.20 adalah barang yang dilarang pengimportannya kecuali dengan cara yang diperuntukkan di bawah Perintah Kastam (Larangan Mengenai Import) (Pindaan) 2017 dan cara tersebut tidak dipatuhi. [16] Seksyen 2 Akta Kastam 1967 telah menggariskan taksiran ‘barang- barang’ dan ‘barang-barang larangan’ sebagaimana berikut: “goods” includes animals, birds, fish, plants, currency and bearer negotiable instruments and any other kinds of movable property. “prohibited goods” means goods the import or export of which is prohibited, either absolutely or conditionally by an order under S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 18 section 31 and any subsidiary legislation made under this Act or by any other written law;” [17] Di bawah Seksyen 31(1) Akta Kastam 1967, Menteri mempunyai kuasa untuk menentukan larangan import atau eksport. Dalam kes ini, rokok-rokok yang dirampas (P11 hingga P50(A) hingga P50(T)) adalah barang-barang larangan kerana ianya tertakluk kepada Perintah Kastam (Larangan Mengenai Import) (Pindaan) 2017. [18] Berdasarkan keterangan SP1, SP3, dan SP7, Mahkamah mendapati bahawa rokok-rokok yang dirampas (P11 hingga P50(A) hingga P50(T)) adalah termasuk di dalam definisi “barang larangan” yang dilarang pengimportannya kecuali dengan cara yang diperuntukkan seperti di dalam Butiran 1, Bahagian II, Jadual Ketiga, Perintah Kastam (Larangan Mengenai Import) (Pindaan) 2017 [P.U.(A) 103/2017] iaitu eksibit P72, di mana peruntukan tersebut mensyaratkan bahawa seseorang itu perlu mematuhi syarat/ cara pengimportan seperti yang dinyatakan tanpa gagal di mana di dalam kes ini syarat/cara tersebut gagal dipatuhi oleh Tertuduh. [19] SP7 semasa memberi keterangan (sebagaimana Perenggan 14 PSP7) telah merumuskan bahawa rokok-rokok tersebut tidak mematuhi syarat-syarat wajib iaitu tidak mempunyai Amaran Kesihatan seperti yang diperuntukkan, tidak mempunyai Maklumat kesihatan seperti yang diperuntukkan dan tidak mempunyai Setem Cukai yang disahkan oleh Ketua Pengarah Kastam. Justeru, SP7 dalam siasatannya telah menunjukkan bahawa rokok-rokok yang telah dirampas iaitu P11 hingga S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 19 P50(A) hingga P50(T) adalah tertakluk kepada definisi “goods” dan ““prohibited goods” di bawah Seksyen 2 Akta Kastam 1967. [20] Seksyen 13(1) Akta Kastam 1967 membenarkan seorang pegawai kastam yang hak untuk menentukan kelas barang-barang berduti atau barang-barang tak berkastam serta membuat penilaian ke atas barang- barang tersebut untuk maksud menentukan duti kastam yang boleh dilevikan ke atasnya. [21] SP4 selaku Pegawai Kanan Kastam telah menggunakan peruntukan kuasa di bawah Seksyen 13 Akta Kastam 1967. Menurut Seksyen 13 Akta Kastam 1967: Classification and valuation by proper officer of customs 13. (1) The proper officer of customs may, in respect of any dutiable or uncustomed goods— (a) determine the class of goods to which such dutiable or uncustomed goods belong; and (b) value, weigh, measure or otherwise examine, or cause to be valued, weighed, measured or otherwise examined such dutiable or uncustomed goods, for the purpose of ascertaining the customs duty leviable thereon. (2) When a valuation of any goods has been made by the proper officer of customs, such valuation shall be presumed to be correct until the contrary is proved. [22] SP4 dengan kuasa di bawah peruntukan undang-undang telah menilai sampel-sampel rokok di dalam P61(A) hingga P61(K) serta S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 20 P63(A) hingga P63(K) dengan menggunakan prinsip-prinsip di dalam Peraturan 10: Peraturan-peraturan Kastam (Kaedah-kaedah Penilaian) 1999 iaitu dengan menggunakan kaedah Anjal. Menurut SP4, kaedah Anjal telah digunakan bagi menentukan nilai eksibit setelah semua kaedah penilaian yang lain tidak boleh digunakan. [23] Mahkamah ini percaya, selaras dengan Seksyen 13(2) Akta Kastam 1967, penilaian harga berkaitan rokok-rokok yang telah dirampas oleh SP4 adalah dianggap betul memandangkan tiada sebarang dokumen atau pengesahan yang dikemukakan oleh pihak Pembelaan yang boleh menggugat nilai harga yang telah ditaksirkan. [24] Sehubungan dengan itu, penjenisan dan penilaian yang dibuat oleh SP4 (sebagaimana P62 dan P64) dan pengiraan nilai harga ke atas eksibit yang dirampas oleh SP7 (sebagaimana P71) adalah dianggap betul sehingga dibuktikan sebaliknya sepertimana yang diperuntukkan di bawah seksyen 13(2) Akta Kastam 1967. [25] SP5 telah menyediakan Laporan Kimia/ Laporan Di Bawah Seksyen 399 Kanun Tatacara Jenayah No. Makmal T(IK) 00009/20 bertarikh 25/02/2020 (eksibit P68) dan telah mengesahkan bahawa bahan tumbuhan di dalam “A6(1)-1” hingga “A10(1)-1”,”B2(1)-1”, “B4(1)-1” dan “B6(1)-1” mengandungi tembakau, manakala “B7(1)-1”, “B8(1)-1” dan “B9(1)-1” mengandungi tembakau dan cengkih. [26] Merujuk kepada kes Lau Kieng Chung v PP [1993] 3 MLJ 295, Steve LK Shim J menyatakan seperti berikut: S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 21 “As regards element (b), the case of Kee Kim Chooi & Ors. V. Public Prosecutor [1952] 1 LNS 44 provides sufficient revelation. Therein Thomson J., said inter alia: As regards the question of whether the tobacco was uncustomed, the prosecution had to prove that it had been brought at sometime from outside Malaya and that duty had not been paid upon it, and to do so they were entitled to invoke the assistance of s. 99 of the Customs Enactment which reads as follows: If in any prosecution in respect of any goods seized for non-payment of duties or for any other cause of forfeiture or for the recovering of any penalty or penalties under this Enactment, any dispute shall arise as to whether the customs duties have been paid in respect of such goods, or whether the same have been lawfully imported or lawfully landed, or concerning the place whence such goods were brought, then and in every such case the proof thereof shall be on the defendant in such prosecution.” “… it would appear that the prosecution need to establish two conditions, namely, that the goods were imported and that duties thereon had not been paid. However, to do this, the prosecution could invoke the assistance of s. 99 of the Customs Enactment which is substantially in pari materia with the present s. 119 of the Customs Act which has the effect of shifting the burden of proof onto the accused. It should be noted that s. 119 can be invoked only as regards to matters of dispute specified therein. It does not raise any presumption but merely shifts the burden of proving the matters specified therein. The obligation of the accused under s. 115 of the Customs Ordinance 1952, the predecessor of s. 119, was described by Hepworth, J. in Public Prosecutor V. Fatimah [1960] 1 LNS 92 thus: S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 22 No presumption arises under s. 115 of the Ordinance. When a person is charged and claims trial a dispute arises. Once a dispute has arisen s. 115 says the burden of proof is on the defendant. The defendant may discharge this onus by producing a receipt for the duty or he may know that the duty has been paid and, although unable to produce the receipt, may be able to prove it (see the example of the bottle of whisky in para. 4 of the judgment of Good J. in Public Prosecutor V. Tay Yew Lia [1956] 1 LNS 88.). And Good J. in the cited case in fact expanded on this by stating that the effect of s. 115 of the Customs Act 1952 (the predecessor of s. 119 ) was that if a customs officer found a person in possession of dutiable goods anywhere in the Federation, he could take him to Court and make him prove that duty had been paid or make him rebut the presumption of knowledge created by s. 131 (now s. 135(2) ). [27] Ianya adalah jelas bahawa pihak Pendakwaan perlu membuktikan bahawa barang-barang yang dirampas merupakan barangan yang diimport dan duti kastam tidak dibayar. Pihak Pendakwaan menggunapakai Seksyen 119 Akta Kastam 1967, justeru itu, beban pembuktian adalah terletak pada Tertuduh. [28] Seksyen 119 Akta Kastam 1967 adalah sebagaimana berikut: Burden of proof 119. If in any prosecution in respect of any goods seized for non-payment of duties or for any other cause of forfeiture or for the recovery of any penalty or surcharge under this Act, any dispute arises whether the customs duties have been paid in respect of such goods, or whether the same have been lawfully imported or exported or lawfully landed or loaded, or concerning the place whence such goods were 142 Laws of Malaysia ACT 235 brought or where S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 23 such goods were loaded, or whether anything is exempt from duty under section 14 then and in every such case the burden of proof there of shall lie on the defendant in such prosecution. [29] Seksyen 119 Akta Kastam 1967 tidak menimbulkan sebarang anggapan tetapi ianya memindahkan beban pembuktian kepada Tertuduh dalam membuktikan kes. Beban dalam membuktikan rokok- rokok yang dirampas (P11 hingga P50(A) hingga P50(T)) adalah bukan barang yang dilarang pengimportannya atau telah diimport secara sah adalah tertanggung sepenuhnya ke atas Tertuduh. [30] Sepanjang perbicaraan, pihak Pembelaan tidak pernah sekalipun mencabar berkaitan dengan status rokok-rokok yang dirampas iaitu P11 hingga P50(A) hingga P50(T). Tertuduh juga gagal mengemukakan sebarang dokumen berkaitan P11 hingga P50(A) hingga P50(T) bagi membuktikan bahawa ianya telah dibayar cukai dan mendapat kebenaran secara sah untuk dibawa masuk ke Malaysia. [31] Intihanya, initipati ini juga telah berjaya dibuktikan oleh pihak Pendakwaan. Pihak Pendakwaan telah berjaya membuktikan bahawa rokok-rokok yang telah dirampas iaitu P11 hingga P50(A) hingga P50(T) yang bernilai RM7,007.20 adalah barang yang dilarang pengimportannya kecuali dengan cara yang diperuntukkan di bawah Perintah Kastam (Larangan Mengenai Import) (Pindaan) 2017 dan cara tersebut tidak dipatuhi. iii) Intipati (c): S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 24 Tertuduh mempunyai pengetahuan ke atas rokok- rokok tersebut dan rokok- rokok tersebut adalah barang larangan import. [32] Mahkamah ini sekali lagi merujuk kepada kes Lau Kieng Chung v PP [1993] 3 MLJ; “This brings us to element (c) which concerns the accused's knowledge that the goods were uncustomed at the time of conveyance. Under s. 135(2), such goods are presumed to be uncustomed to the knowledge of the accused unless he proves to the contrary. Section 135(2) stipulates thus: In any prosecution under this section or s. 139 any dutiable, uncustomed or prohibited goods, shall be deemed to be dutiable, uncustomed or prohibited goods, as the case may be, to the knowledge of the defendant unless the contrary be proved by such defendant. The term "knowledge" according to Sharma, J. in Wolfgang Pzetzhold v. Public Prosecutor [1970] 2 MLJ 199, implies a consciousness of facts and that it is of greater import than the term "having reason to believe" see also Public Prosecutor V. Tay Yew Lia [1956] 1 LNS 88. In short, the effect of s. 135(2) is to provide the essential ingredient of knowledge relevant to the charge and places on the accused the duty to prove otherwise. As Thomson, J. had said in Kee Kim Chooi, supra: The effect of that new sub-section clearly is that while knowledge that the goods were uncustomed remains an essential ingredient of the offence described by s. 114(i)(e), that ingredient is now in the first instance supplied by the law itself and it is for the accused person to displace it if he can. Quite clearly therefore, the presumption under s. 135(2) is a rebuttable one. The accused can rebut this presumption by proof of circumstances from which it is reasonable to infer or conclude, on a balance of probabilities, that he could not possibly have known or acquired the imputed knowledge…” S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 25 [33] Seksyen 135(2) Akta Kastam 1967 menyatakan seperti berikut: “(2) In any prosecution under this section or section 139 any dutiable, uncustomed or prohibited goods shall be deemed to be dutiable, uncustomed or prohibited goods, as the case may be, to the knowledge of the defendant unless the contrary be proved by such defendant.” [34] Kesan daripada anggapan di bawah Seksyen 135(2) Akta Kastam 1967, beban pembuktian adalah di pihak Tertuduh untuk membuktikan atas imbangan kebarangkalian bahawa Tertuduh tiada pengetahuan berkenaan rokok-rokok yang dirampas iaitu P11 hingga P50(A) hingga P50(T) merupakan barangan larangan Kastam. [35] Merujuk kepada kes Chan Pean Leon v Public Prosecutor [1956] 1 MLJ 237, Thomson J dalam penghakiman beliau menyatakan seperti berikut; “…knowledge cannot be proved by direct evidence, it can only be proved by inference from surrounding circumstances. Again the possible variety of circumstances which will support such an inference is infinite. There may be something in the accused’s behavior that shews knowledge, or the nature of the thing my be so obvious that it is possible to say “he must have known what it was’…” [36] Secara tuntas, Mahkamah boleh membuat inferens berkenaan ‘pengetahuan’ berdasarkan fakta-fakta dan keadaan sekeliling sesuatu kes. Oleh yang demikian, merujuk kepada fakta-fakta dan keadaan sekeliling dalam kes ini, jelas sekali membuktikan bahawa Tertuduh S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 26 mempunyai pengetahuan terhadap rokok-rokok tersebut (eksibit P11 hingga P50(A) hingga P50(T)) yang dijumpai di dalam kenderaan P9 yang dimiliki oleh Tertuduh dan merupakan tempat Tertuduh berada ketika ditahan oleh Jabatan Kastam yang mana barang tersebut adalah barang larangan import di bawah Perintah Kastam (Larangan Mengenai Import) (Pindaan) 2017 berdasarkan keterangan seperti berikut: i) Tertuduh adalah pemilik berdaftar kenderaan P9 berdasarkan P74(A) hingga P74(C). ii) Ketika ditahan oleh pihak Kastam, hanya Tertuduh berada di dalam kenderaan P9 tersebut dan sedang menyusun barang- barang larangan tersebut. iii) Sebagai pemilik berdaftar kenderaan P9 tersebut, sudah tentu Tertuduh mempunyai kawalan dan pengetahuan terhadap barang-barang yang disimpan di dalam kenderaan miliknya. Malahan, sebagaimana keterangan SP3, terdapat 01 plastik berwarna biru dengan tandaan ‘B7 (iaitu P23) yang dijumpai di bahagian belakang tempat duduk penumpang, tempat Tertuduh berada semasa ditangkap. Menurut SP3 juga, kandungan P23 tersebut boleh dilihat dengan jelas (sebagaimana gambar P3(9)). Oleh yang demikian, adalah mustahil untuk Tertuduh mengatakan bahawa Tertuduh tiada pengetahuan berkenaan rokok-rokok tersebut. iv) Rokok-rokok yang dirampas tersebut adalah dalam kuantiti yang banyak iaitu sebanyak 224 karton (sebagaimana Pertuduhan Pindaan, P1) dan Tertuduh juga telah gagal mengemukakan sebarang dokumen pengimportan kepada pihak Kastam yang S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 27 secara jelas menunjukkan rokok-rokok tersebut telah melalui proses pengimportan yang sah. [37] Konklusinya, intipati ini juga telah berjaya dibuktikan oleh pihak Pendakwaan. E. ISU-ISU LAIN YANG DIPERTIMBANGKAN i) Sama ada nama dan jumlah rokok yang berbeza di dalam setiap eksibit yang dikemukakan kepada Mahkamah menyebabkan terputusnya rantaian keterangan barang kes. [38] Pihak Pembelaan menghujahkan bahawa nama-nama rokok yang berbeza di dalam eksibit P2(A), P2(B), Pertuduhan Pindaan (P1), P7, P8, P64, P68 dan P71 jelas mengelirukan dan menimbulkan keraguan berkenaan jenis sebenar rokok yang telah disita dan dijadikan eksibit di Mahkamah. [39] Dalam memutuskan perkara ini, Mahkamah telah meneliti satu persatu eksibit P2(A), P2(B), Pertuduhan Pindaan (P1), P7, P8, P64, P68 dan P71, dan didapati terdapat beberapa perbezaan kecil daripada segi nama beberapa jenis rokok yang dirampas. Namun tiada sebarang perbezaan nama rokok yang ketara, malah kuantiti serta penandaan yang dibuat pada setiap jenis rokok yang dirampas adalah sama antara Borang Bongkar iaitu P2(A) dan P2(B) serta Pertuduhan Pindaan (P1). S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 28 [40] Mahkamah juga telah menghalusi keterangan SP4 yang telah menjelaskan secara terperinci semasa Pemeriksaan Semula, sebagaimana berikut: Soalan: Rujuk ID59 dan P62. Tadi rakan bijaksana saya tanya ‘Rujuk ID59 iaitu Surat Permohonan Penilaian Harga dan juga P62 surat Keputusan Permohonan Penilaian pada bilangan 10 dan 11. Setuju kalau saya cadangkan kepada Encik Anuar, pada bilangan 10 dan 11 menunjukkan nama rokok yang berbeza?’. Kamu jawab betul tidak sama. Boleh jelaskan kepa da Mahkamah berkenaan Keputusan yang kamu keluarkan dan permohonan yang kamu terima? Jawapan: Jenis rokok adalah sama iaitu rokok Kretek Gudang Garam bagi bilangan 10. Soalan: Bilangan 11? Jawapan: Begitu juga 11, rokok yang sama, rokok Kretek. [SP4 tunjuk sampel rokok Gudang Garam Hijau tandaan B8(1)-3]. Rokok Gudang Garam. Soalan: Keputusan kamu di bilangan 10 merujuk kepada sampel yang sama? Jawapan: Ya. Sama. Bilangan 11 iaitu ‘B9(1)-3’. [SP4 tunjuk sampel rokok bertanda ‘B9(1)-3’]. S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 29 Ini rokok kretek Gudang Garam Merah, Nusantara Merah. Soalan: Maklum balas bilangan 11 merujuk sampel yang sama? Jawapan: Ya. Betul. Soalan: Rujuk ID60 dan P64 iaitu Surat Permohonan Penjenisan dan surat maklum balas Keputusan Klarifikasi Barangan Kes. Bilangan 10 dan 11 ID60 (Surat Permohonan Penjenisan) dan baris kedua terakhir P64 (surat maklum balas Keputusan Klarifikasi Barangan Kes). Boleh jelaskan? Jawapan: Rokok kretek jenis yang sama. Yang ini hijau rokok kretek Nusantara Hijau tandaan ‘B8(1)-2’. Soalan: Rujuk ‘P8(1)-2’, jawapan pada P64 sampel yang sama? Jawapan: Ya. Sampel yang sama. Bilangan 11 bertanda ‘B9(1)-2’ rokok kretek Gudang Garam Nusantara Merah. Soalan: Kamu terima 01 sampul sahaja dan berdasarkan sampel itu kamu keluarkan Keputusan berdasarkan sampel yang sama? Jawapan: Ya. S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 30 [41] Justeru, Mahkamah berpendapat perbezaan kecil daripada segi nama beberapa jenis rokok tidak menyebabkan terputusnya sebarang rantaian keterangan. [42] Pihak Pembelaan juga membangkitkan isu berkenaan rokok-rokok yang dirampas di 02 tempat berlainan iaitu bahagian tempat duduk belakang kenderaan P9 dan di dalam bonet belakang kenderaan P9, namun tidak dinyatakan dalam lain-lain eksibit selain P2(A) dan P2(B), terutamanya Pertuduhan. Berkenaan isu ini, Mahkamah percaya ianya adalah kuasa pihak Pendakwaan untuk memutuskan sama ada rokok- rokok yang dirampas tersebut perlu diasingkan atau disekalikan dalam Pertuduhan atau lain-lain dokumen. Pada pandangan Mahkamah ini, adalah memadai sekiranya kuantiti dan jenis rokok-rokok yang dirampas tersebut adalah tepat sebagaimana yang telah dirampas oleh Pegawai Serbuan. ii) Sama ada eksibit yang tertukar semasa perbicaraan SP7 menyebabkan terputusnya rantaian keterangan barang kes. [43] Pihak Pembelaan menghujahkan bahawa rantaian keterangan dan rantaian dokumen telah terputus apabila semasa SP7 dipanggil memberi keterangan, eksibit di dalam sampul P56 dan P58 telah tertukar. Menurut pihak Peguambela, walaupun pihak Pendakwaan telah menerangkan kepada Mahkamah sebab berlakunya pertukaran ini, namun ianya tidak menidakkan telah berlakunya kecuaian di pihak Pendakwaan semasa menguruskan barang kes, dan hal ini jelas memprejudiskan Tertuduh. S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 31 [44] Setelah menghalusi keterangan SP4 dan SP7, Mahkamah bersetuju dengan pihak Pendakwaan bahawa walaupun wujudnya kekhilafan sewaktu penyimpanan semula barang kes selepas pengecaman oleh SP4, sampel barang kes iaitu P61(A) hingga P61(K) dan P63(A) hingga P63(K) masih boleh dicamkan dan dikemukakan kepada Mahkamah oleh SP7. Sampel-sampel rokok tersebut telahpun dicamkan terlebih dahulu oleh SP4 dan dibenarkan untuk ditandakan sebagai P61(A) hingga P61(K) dan P63(A) hingga P63(K) pada dan sejak 16 Ogos 2022. Mahkamah ini percaya bahawa kekhilafan tersebut telah diperjelaskan dengan terperinci oleh pihak Pendakwaan dan kekhilafan tersebut tidak menyebabkan rantaian keterangan terputus. iii) Sama ada kegagalan pihak Pendakwaan memanggil Pegawai Penyelia Stor untuk memberi keterangan di Mahkamah menyebabkan terputusnya rantaian keterangan barang kes. [45] Adalah dihujahkan oleh pihak Pembelaan bahawa kegagalan pihak Pendakwaan untuk memanggil Pegawai Penyelia Stor, Baharom bin Abu Bakar untuk memberi keterangan telah menimbulkan keraguan. Menurut pihak Pembelaan, selepas SP2 bertukar ke cawangan Kastam yang lain, tugas untuk menyimpan dan mengeluarkan barang kes telah dijalankan oleh Baharom bin Abu Bakar, sebagaimana P75(A) hingga P75(F). Adalah dihujahkan lagi bahawa, terdapat isu berbangkit yang hanya boleh diselesaikan dengan kehadiran Baharom bin Abu Bakar untuk memberi keterangan di Mahkamah. S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 32 [46] Adalah menjadi satu undang-undang yang mantap bahawa pihak Pendakwaan mempunyai kuasa mutlak dalam menentukan saksi yang perlu dipanggil dalam sesuatu perbicaraan. Mahkamah juga mempunyai kuasa untuk menentukan kelompangan kes Pendakwaan akibat kegagalan pihak Pendakwaan memanggil mana-mana saksi. Dalam kes di hadapan Mahkamah ini, SP2 iaitu Syairen Nordina binti Shawaludin (Pembantu Pegawai Stor) telah dipanggil memberi keterangan. Mahkamah percaya, kegagalan pihak Pendakwaan untuk memanggil tidak menjejaskan kes Pendakwaan. Hal ini kerana, sebagaimana yang dijelaskan oleh SP7 ketika Pemeriksaan Balas, seperti berikut: ‘Untuk makluman Pegawai Kastam Kanan Baharom bin Abu Bakar adalah Pegawai Stor Cawangan Penguatkuasaan Kemaman. Pegawai Kastam Syairen Nordina Shawaludin pula adalah Pembantu Pegawai Stor dan pada masa serahan barang dibuat, Pegawai Kastam Kanan Baharom bin Abu Bakar bercuti sakit. Oleh itu, semua kerja-kerja hakiki berkaitan stor dilakukan oleh Pembantu Pegawai Stor.’ [47] Mahkamah percaya bahawa SP2 iaitu Syairen Nordina binti Shawaludin adalah Pegawai Stor yang berhak pada ketika barang kes bagi kes ini diserahkan ke Stor Barang Kes Cawangan Penguatkuasaan Kastam, Kemaman. Mahkamah juga percaya, kegagalan pihak Pendakwaan untuk memanggil tidak menjejaskan kes Pendakwaan. iv) Sama ada ketiadaan saksi pakar yang dipanggil untuk memberi keterangan berkenaan Maklumat Kenderaan daripada JPJ menjejaskan kes Pendakwaan. S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 33 [48] Peguambela menghujahkan bahawa walaupun maklumat pemilikan kenderaan iaitu P74(A) hingga P74(C) telah pun direkodkan di Mahkamah, ianya masih memerlukan keterangan daripada saksi pakar iaitu saksi yang mengeluarkan P74(A) hingga P74(C) ini. [49] Mahkamah telah meneliti Nota Prosiding bertarikh 27 Disember 2022, yang mana semasa Pemeriksaan Utama SP7 (Pegawai Penyiasat), Maklum Balas JPJ (termasuk Maklumat Terperinci Kenderaan dan Insurans bertarikh 03/09/2020) dan Sijil Perakuan di bawah Seksyen 90A Akta Keterangan 1950 telah ditandakan sebagai eksibit P74(A) hingga P74(C). Tiada sebarang bantahan direkodkan daripada pihak Peguambela pada tarikh tersebut. Oleh itu, Mahkamah ini berpandangan, apabila sesuatu dokumen tersebut telah ditandakan sebagai eksibit ‘P’, P74(A) hingga P74(C) adalah diterima masuk dan dijadikan sebagai sebagai eksibit pihak Pendakwaan. Tiada keperluan untuk memanggil ‘maker of the document’, memandangkan P74(A) hingga P74(C) telah ditandakan melalui Pegawai Penyiasat dan tiada sebarang bantahan direkodkan oleh pihak Pembelaan pada waktu tersebut. v) Isu berkenaan Tertuduh tidak faham Bahasa Malaysia [50] Semasa perbicaraan, Peguambela ada membangkitkan soalan berkenaan Tertuduh yang tidak faham penerangan yang diberikan kepada Tertuduh sewaktu dalam tahanan pihak Kastam kerana tidak disediakan Jurubahasa atau penterjemah yang memahami bahasa ibunda Tertuduh. S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 34 [51] Dalam memutuskan isu ini, Mahkamah telah meneliti keterangan SP7 selaku Pegawai Penyiasat kes, semasa Pemeriksaan Semula, sepertimana berikut: Soalan: Tadi ada ditanya berkenaan dengan OKT diserahkan kepada kamu ada atau tidak pegawai lain hadir bersama sebagai jurubahasa, kamu jawab tidak ada. Kemudian ditanya lagi, ‘Saya cadangkan juga semasa penerangan tersebut kepada OKT tidak ada mana-mana Jurubahasa yang hadir sebagai Jurubahasa kepada OKT Liong Meng Soh?’, kamu jawab tidak ada Jurubahasa. Kamu jawab ‘Saya pasti selepas saya menerangkan kesalahan yang dilakukan, OKT merayu mohon dilepaskan’. Boleh jelaskan kepada Mahkamah, perincikan sedikit? Jawapan: Saya telah menerangkan perihal kesalahan kepada OKT dan hukuman yang akan diterima jika disabitkan kesalahan, selepas itu OKT mengaku bersalah dan tahu kesalahan yang dilakukan dan dia merayu agar dirinya dilepaskan. Soalan: Selepas kamu terangkan, kamu terangkan macam mana? Cuba jelaskan? Jawapan: Saya terangkan pada hari tersebut, saya kata Encik Liong Meng Soh, kamu tahu kamu telah ditahan oleh pihak Kastam, OKT kata tahu, kemudian saya berdasarkan dokumen serahan, saya menerangkan kepada OKT, OKT telah ditahan bawah kesalahan 135(1)(e) iaitu kesalahan kerana terlibat mengangkut barang larangan kastam. Seksyen 135(1)(e) di bawah keterangan kes. Akibat daripada perbuatan kamu ini boleh dikenakan hukuman penjara minimum 6 S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 35 bulan, atau denda RM100,000 atau 10 kali ganda nilai barang yang mana lebih tinggi atau kedua-duanya. Kemudian OKT faham, dan jelas dengan penerangan yang saya berikan dan OKT mengaku bersalah dan sedar akan kesalahan yang dilakukan dan meminta tolong supaya dirinya dilepaskan pada malam tersebut. Soalan: Kamu cakap pada malam tersebut pada 09/02/2020? Jawapan: Ya. Pada 09/02/2020. Sebelum rakaman pernyataan diambil. vi) Isu ketiadaan pemeriksaan cap jari [52] Pihak Pembelaan menghujahkan sekiranya pemeriksaan cap jari pada rokok-rokok yang dirampas tersebut dilakukan sudah tentu pihak Pendakwaan dapat mengesahkan adanya individu yang menguruskan secara langsung rokok-rokok tersebut. [53] Mahkamah ini merujuk kes Gunalan a/l Ramachandran & Ors v PP [2004] 4 MLJ 489 dan percaya bahawa ketiadaan kes cap jari atau DNA pada barang kes tidak bermakna Tertuduh tidak mempunyai ‘posession’ terhadap barang kes. Pihak Pendakwaan turut merujuk kes Ibe Godwin Uzochukwu v Public Prosecutor [2017] MLJU 202, yang mana Mahkamah Rayuan memutuskan sebagaimana berikut: ‘[67] Fingerprint evidence are not substantive evidence. Its evidentiary value is only corroborative. Its absence do not in any way create a gap warranting an adverse inference to be drawn against the prosecution. While its presence would inevitably strengthened the prosecution's case, its materiality, however, S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 36 would assume less relevance where there are direct evidence available to implicate the appellant with the commission of the offence as here’. [54] Tambahan lagi, Mahkamah juga merujuk Nota Prosiding bertarikh 16 Februari 2020 iaitu tarikh kali pertama Pertuduhan dibacakan, Pertuduhan dibacakan dalam Bahasa Malaysia Tertuduh faham, tertuduh mengaku tidak bersalah dan minta dibicarakan atas Pertuduhan tersebut. Begitu juga pada 04 Ogos 2020, iaitu ketika Pertuduhan Pindaan (P1) dibaca dan diterangkan dalam Bahasa Malaysia, Tertuduh faham, tertuduh mengaku tidak bersalah dan minta dibicarakan atas Pertuduhan Pindaan tersebut. Peguambela Tertuduh hadir pada kedua-dua tarikh Sebutan tersebut, namun tidak pernah memaklumkan kepada Mahkamah berkenaan keadaan Tertuduh yang dikatakan kurang faham Bahasa Malaysia. [55] Oleh yang demikian, Mahkamah bersetuju dengan pihak Pendakwaan bahawa jika benar Tertuduh tidak faham arahan dan penerangan yang diberikan oleh SP7, tindakan Tertuduh yang memohon untuk dirinya dilepaskan menunjukkan sebaliknya. F. DAPATAN MAHKAMAH DI AKHIR KES PENDAKWAAN [56] Seksyen 173 (f) (i) Kanun Tatacara Jenayah memperuntukkan seperti berikut: 173. Prosedur dalam perbicaraan terus. S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 37 (f) (i) Apabila kes pendakwa berakhir Mahkamah akan mempertimbangkan sama ada pihak pendakwa telah membuat satu kes prima facie terhadap tertuduh. (ii) Jika Mahkamah mendapati bahawa pihak pendakwa tidak membuat satu kes prima facie terhadap tertuduh, Mahkamah hendaklah merekodkan suatu perintah pembebasan. [57] Dalam kes Balachandran v PP [2005] 1 CLJ 85, Mahkamah Persekutuan telah menyatakan seperti berikut: “…Since the court, in ruling that a prima facie case has been made out, must be satisfied that the evidence adduced can be overthrown only by evidence in rebuttal it follows that if it is not rebutted it must prevail. Thus if the accused elects to remain silent he must be convicted. The test at the close of the case for the prosecution would therefore be: Is the evidence sufficient to convict the accused if he elects to remain silent? If the answer is in the affirmative then a prima facie case has been made out. This must, as of necessity, require a consideration of the existence of any reasonable doubt in the case for the prosecution. If there is any such doubt there can be no prima facie case.” [58] Tugas Mahkamah di akhir kes Pendakwaan adalah seperti yang diperuntukkan di bawah Seksyen 180(1) Kanun Tatacara Jenayah. Kes PP v Khee Thuan Giap [2017] 1 LNS 1838, Mahkamah Tinggi telah menggariskan panduan berguna dalam menilai keterangan di akhir kes Pendakwaan: “[14] Section 180 of the CPC provides that when the case for the prosecution is concluded, the Court must consider whether the prosecution has made out a prima facie case against the accused. And if the Court finds that the prosecution has not made out a prima facie case against the accused, the Court shall record S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 38 an order of acquittal. If the Court finds that a prima facie case has been made out against the accused on the offence charged the Court shall call upon the accused to enter his defence. A prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction. Based on the established principle of law, before the Court can rule that a prima facie case has been made out, a maximum evaluation of the credibility of the witnesses must be done at the close of the case for the prosecution (Balachandaran v. PP [2005] 1 CLJ 85; Looi Kow Chai & Anor v. PP [2003] 1 CLJ 734; [2003] 2 MLJ 65 and PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457). [15] Maximum evaluation means the assessment process for the essential purpose of analysing the credibility and reliability as well as trustworthiness of the evidence of the prosecution. Credible evidence is evidence which had been filtered and which had gone through the process of evaluation and any evidence which is not safe to be acted upon should be rejected (see PP v. Ong Cheng Heong [1998] 4 CLJ. Thus, what is required by a trial Court is to test the evidence of a witness from all angles as well as its reliability and credibility by considering the entire evidence placed before the Court. The evidence must not be accepted at face value but must be tested and evaluated before reliance can be placed on each piece of evidence adduced. Further, the trial Court has the duty to consider the evidence which favours the defence. This requires a consideration of the existence of any reasonable doubt in the case for the prosecution and if there is any such doubt, there can be no prima facie case (Balachandran v. PP (supra)). [16] The above principle of law on maximum evaluation should be read together with the principle relating to judicial appreciation of evidence which is set out in the following words of Gopal Sri Ram JCA in Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19; [2003] 2 MLJ 97. A trier of fact who makes findings based purely upon the demeanour of a witness without undertaking a critical S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 39 analysis of that witness's 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.” [59] Manakala, dalam kes Low Kow Chai & Anor v PP [2003] 1 CLJ 734, Mahkamah telah menyatakan bahawa di akhir kes pendakwa, pihak Pendakwaan mempunyai beban untuk membuktikan kes prima facie ke atas setiap elemen dalam sesuatu pertuduhan terhadap tertuduh. [60] Berdasarkan prinsip undang-undang di atas, Mahkamah ini telah membuat penilaian secara maksimum ke atas keterangan kes Pendakwaan dalam membuktikan setiap elemen Pertuduhan ke atas Tertuduh dalam menyimpulkan sama ada suatu kes prima facie berjaya dibuktikan terhadap Tertuduh. Hasil daripada penilaian tersebut, pada 01 Februari 2023, setelah mendengar, meneliti, menimbang dan menilai secara maksimum keterangan yang dikemukakan oleh pihak Pendakwaan dan setelah menilai kredibiliti saksi-saksi Pendakwaan serta mengambilkira keseluruhan hujahan bertulis yang telah difailkan oleh kedua-dua belah pihak, Mahkamah ini mendapati dan memutuskan bahawa pihak Pendakwaan telah berjaya membuktikan satu kes prima facie terhadap OKT bagi Pertuduhan Pindaan di bawah Seksyen 135(1)(d) Akta Kastam 1967 yang boleh dihukum di bawah Seksyen 135(1)(v)(aa) Akta yang sama. Oleh yang demikian, Tertuduh dipanggil untuk membela dirinya. S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 40 [61] Selaras dengan peruntukan di bawah Seksyen 173(ha) Kanun Tatacara Jenayah, Mahkamah ini telah menjelaskan berkenaan pilihan yang Tertuduh ada setelah dipanggil untuk membela diri, iaitu: i) Memberi keterangan secara bersumpah di dalam kandang saksi; ii) Memberi pernyataan tidak bersumpah daripada kandang Tertuduh; atau iii) Memilih untuk berdiam diri/ Tetap senyap. Tertuduh telah memilih untuk memberi keterangan sumpah di dalam kandang saksi. G. KETERANGAN KES PEMBELAAN Saksi – Saksi Pembelaan [62] Berikut adalah senarai Saksi Pembelaan yang telah dipanggil oleh pihak Pembelaan: SD1 : Liong Meng Soh (Tertuduh) SD2 : Pik Mohammad Azuan bin Azmi (Anggota Serbuan) SD3 : Baharom bin Abu Bakar (Ketua Pegawai Stor) SD4 : Wong Liang Khien (Saksi Awam) [63] Berikut diringkaskan keterangan kes Pembelaan: S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 41 i) Menurut keterangan Tertuduh/SD1 semasa memberi keterangan pada 02/02/2023, pada hari kejadian iaitu pada 09/02/2020, selepas selesai bekerja pada hari tersebut, Tertuduh pergi ke Kg. Gelugor, Kerteh untuk mengambil kawannya yang bernama ‘Amin’. ii) Selepas berjumpa Amin di rumahnya, Amin meletakkan barang kerja beliau (barang dalam plastik) di bonet belakang dan tempat duduk belakang pemandu kereta Tertuduh. Mereka sampai di Pantai Kemasik lebih kurang jam 6.00 petang. Kereta tersebut, yang dipandu oleh Amin diparkir di sebelah bukit dekat dengan jalanraya. Semasa itu hari hujan dan ombak kuat. Menurut Tertuduh, Amin memaklumkan bahawa Amin menunggu kawannya datang. Kemudian Amin keluar untuk membuat panggilan telefon. iii) Kemudian, selepas 6 – 7 minit, Amin masih tiada. Tertuduh ke tempat duduk belakang untuk tengok kandungan plastik tersebut. Selepas itu, terdapat sebuah kereta berhenti di hadapan kereta milik Tertuduh. Kereta tersebut tidak berlogo dan ada 03 orang turun daripada kereta. Cermin kereta Tertuduh diketuk dan Tertuduh diarahkan untuk keluar daripada kereta. Ketika itu kenderaan Tertuduh dalam keadaan berkunci. iv) Pada ketika itu, Tertuduh takut untuk membuka keretanya. Selepas Tertuduh membuka pintu, salah seorang daripada 03 orang tersebut menunjukkan logo Kastam.Selepas itu baru mereka memakai uniform Kastam dan menampal logo di hadapan kenderaan mereka. S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 42 v) Selesai mengambil gambar kereta dan gambar Tertuduh, saya dibawa ke Pejabat Kastam dengan menggunakan kereta Honda Odyssey bersama 02 orang yang lain. Manakala seorang lagi memandu kenderaan Tertuduh. Pada ketika itu, Tertuduh tidak pasti di mana keberadaan barang-barang dalam kenderaan Waja. vi) Apabila tiba di Pejabat Kastam, pihak Kastam mengeluarkan rokok daripada kereta Waja. Mereka mengeluarkan plastik-plastik hitam. Selepas mereka buka plastik, barang-barang tersebut adalah rokok. Tertuduh ditahan selama 07 hari. H. PEMBELAAN TERTUDUH [64] Pihak Pembelaan menghujahkan bahawa berlakunya kelompangan dalam kes Pendakwaan apabila SD1 dan SD2 menyatakan bahawa dalam perjalanan ke Pejabat Kastam Kemaman, Tertuduh dibawa menaiki kenderaan Kastam bersama Ketua Serbuan dan pemandu. SD2 juga mengesahkan bahawa barang-barang kes yang ditemui di dalam kenderaan Proton Waja tidak dibawa bersama dalam kenderaan Odyssey. [65] Dalam memutuskan isu ini, Mahkamah sekali lagi telah meneliti kesemua keterangan SP1 dan SP3 yang merupakan ketua serta anggota serbuan pada masa material. SP1 dan SP3 telah menyatakan bahawa SP1, Tertuduh bersama SD2 telah menaiki kenderaan Proton Waja (P9) manakala SP3 memandu kenderaan Jabatan (jenis Honda Odyssey) balik ke Pejabat Kastam Bahagian Penguatkuasaan Kemaman. Setelah S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 43 mempertimbangkan keterangan-keterangan tersebut, Mahkamah ini berpendapat keterangan SP1 dan SP3 adalah lebih dipercayai. Hal ini kerana keterangan SP1 dan SP3 adalah saling menyokong. Manakala SD2 semasa memberikan keterangan menyatakan bahawa ‘Saya balik ke Pejabat, saya diarahkan saya bersama beliau dan OKT. Seingat saya semasa balik ke Pejabat, saya memandu Odyssey. Pik Azmi dan Ketua Pasukan dalam kereta Waja bersama dengan OKT.’ [66] Turut dihujahkan oleh pihak Pembelaan bahawa terdapat keraguan semasa pengendalian keluar masuk barang kes ke dalam stor semasa penyimpanan barang kes di dalam stor Pejabat Kastam Kemaman. Berdasarkan keterangan SD3, SD3 mengatakan bahawa beliau tidak memeriksa secara terperinci barang-barang kes yang telah dibawa masuk ke stor semasa seliannya. SD3 juga menyatakan bahawa beliau tidak memeriksa barang-barang yang dipulangkan ke stor. [67] Mahkamah ini percaya bahawa berkenaan pengendalian keluar masuk barang kes ke dalam Stor Cawangan Penguatkuasaan Kastam Kemaman, adalah memadai untuk pihak Pendakwaan mengemukakan Borang Mengeluarkan Barang Kes (Lampiran C) berserta Lampiran 1 (Senarai Eksibit) sebagaimana yang telah dikemukakan serta ditandakan di Mahkamah ini, tamsilnya P53, P55, P57 dan P75(A) hingga P75(F). Menurut rekod prosiding Mahkamah, kesemua rokok-rokok yang telah dirampas tersebut (P11 hingga P50(A) hingga P50(T) telah dikemukakan dan ditandakan sebagai eksibit Pendakwaan di Mahkamah ini sebelum SD3 pulang daripada bercuti sakit. Kuantiti rokok-rokok yang telah dirampas tersebut (P11 hingga P50(A) hingga P50(T) yang telah S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 44 dikemukakan di Mahkamah ini adalah sebagaimana Borang Bongkar iaitu P2(A) dan P2(B). I. PENILAIAN KETERANGAN KES PEMBELAAN [68] Tanggungjawab Mahkamah ini di akhir kes ini adalah untuk membuat penelitian dan penilaian terhadap pembelaan yang diutarakan oleh Tertuduh dan memutuskan samada keterangan Tertuduh terjumlah kepada suatu pembelaan yang dapat menimbulkan keraguan yang munasabah ke atas kes Pendakwaan, sekiranya berjaya, Tertuduh akan dilepas dan dibebaskan atas Pertuduhan yang dipertuduhkan ke atasnya. [69] Dengan kata lain sekiranya Pembelaan Tertuduh gagal menimbulkan sebarang keraguan munasabah ke atas kes Pendakwaan untuk Pertuduhan terhadap Tertuduh, maka pihak Pendakwaan telah berjaya membuktikan kesnya melampaui keraguan yang munasabah berdasarkan kesemua keterangan yang dikemukakan dan Tertuduh hendaklah didapati bersalah sepertimana Pertuduhan yang dipertuduhkan ke atasnya. [70] Tanggungjawab Mahkamah di akhir kes Pembelaan telah juga dijelaskan di dalam kes PP v. Kenneth Fook Mun Lee [2006] 4 CLJ 359 seperti berikut: "... Section 180 of the Criminal Procedure Code ("CPC") provides that when the case for the prosecution is concluded, the Court shall consider whether the prosecution has made out a prima facie case against the accused and if the S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 45 Court finds a prima facie case has been made out against the accused on the offence charged the Court shall call upon the accused to enter on his defence. We do not think it is the duty of the Court at that stage to anticipate or speculate any defence that has not been raised and give due consideration to it. More so, a defence categorically denied to be the line of defence to be taken as in this case. Consequently, section 181 of the CPC provides that when the accused is called upon to enter on his defence, he or his advocate may then open his case, stating the facts or law on which it intends to rely and making such comment as he thinks necessary on the evidence for the prosecution. He may then examine his witnesses and consequently sum up his case. Section 182A of the CPC provides that at the conclusion of the trial, the Court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt." [71] Mahkamah juga merujuk kes Abdullah Jacomah v. PP [2002] 8 CLJ 1, yang mana Mahkamah memutuskan seperti berikut: "... The law governing a proper appraisal of a defence that has been advanced is well settled. It requires a consideration of all the evidence that have been adduced in support of the defence (see Chang Lee Swee v. Public Prosecutor [1984] 1 LNS 134; [1985] 1 MLJ 75; Mohamed Shariff v. Public Prosecutor [1964] 1 LNS 114; [1964] MLJ 64). A court must consider carefully whether a defence that has been put forward is capable of raising a reasonable doubt in the prosecution case..." [72] Mahkamah ini merujuk seksyen 182A Kanun Tatacara Jenayah yang telah memperuntukkan seperti berikut: "182A Procedure at the conclusion of the trial S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 46 (1) At the conclusion of the trial, the Court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt." (2) If the Court finds that the prosecution has proved its case beyond reasonable doubt, the Court shall find the accused guilty and he may be convicted on it. (3) If the Court finds that the prosecution has not proved its case beyond reasonable doubt, the Court shall record an order of acquittal" [73] Namun apa yang dimaksudkan dengan keraguan munasabah tidak ditakrifkan di dalam merujuk seksyen 182A Kanun Tatacara Jenayah. Apa itu keraguan munasabah ada diputuskan di dalam kes PP v. Saimin & Ors [1971] 1 LNS 115; [1971] 2 MLJ 16 seperti berikut: "As the learned magistrate seems to have ignored the very basic principle of criminal law, it may perhaps serve a useful purpose to remind those administering justice in the lower Courts that evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused. The following definition of 'b7''reasonable doubt' is often quoted: "It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge." It has again been said that "reasonable doubt' is the doubt which makes you hesitate as to the correctness of the conclusion which you reach. If under your oaths and upon your consciences, after you have fully investigated the evidence and compared it in all its parts, you say to yourself I doubt if he is guilty, then it is a reasonable doubt. It is a doubt which settles in your judgment and finds a resting place there.' Or as sometimes said, it must be a doubt so S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 47 solemn and substantial as to produce in the minds of the jurors some uncertainty as to the verdict to be given. A reasonable doubt must be a doubt arising from the evidence or want of evidence and cannot be an imaginary doubt or conjecture unrelated to evidence." [74] Mahkamah ini juga merujuk kes Mohamad Radhi bin Yaakob v. PP [1991] 1 CLJ Rep 311; [1991] 3 CLJ 2073; [1991] 3 MLJ 169 yang mana Mahkamah Persekutuan di dalam kes tersebut menyatakan seperti berikut: "We are of the view that whenever a criminal case is decided on the basis of the truth of the prosecution's case as against the falsity of the defence story, a trial judge must in accordance with the principle laid down in Mat v. PP [1963] 1 LNS 82; [1963] MLJ 263 go one step further before convicting the accused by giving due consideration as to why the defence story, though could not be believed, did not raise a reasonable doubt in the prosecution case. Thus, even though a judge does not accept or believe the accused's explanation, the accused must not be convicted until the court is satisfied for sufficient reason that such explanation does not cast a reasonable doubt in the prosecution case. To satisfy this test it is not so much the words used by the judge, but rather the actual application of the test to the facts of the case that matters. In this case, we found that the learned trial judge offered practically no reason why the defence, notwithstanding its falsity and unconvincing nature, had failed to cast reasonable doubt in the prosecution case, other than to state by way of lip service the duty placed by the law on the defence to earn an acquittal. It is a well-established principle of Malaysian criminal law that the general burden of proof lies throughout the trial on the prosecution to prove beyond reasonable doubt the guilt of the accused for the offence with which he is charged. There is no similar burden placed on the accused to prove his innocence. He is presumed innocent until proven guilty. To earn an acquittal, his duty is merely to cast a reasonable doubt in the prosecution case. In the course of the prosecution case, the prosecution may of course rely on available S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 48 statutory presumptions to prove one or more of the essential ingredients of the charge. When that occurs, the particular burden of proof as opposed to the general burden, shifts to the defence to rebut such presumptions on the balance of probabilities which from the defence point of view is heavier than the burden of casting a reasonable doubt, but it is certainly lighter than the burden of the prosecution to prove beyond reasonable doubt. To earn an acquittal at the close of the case for the prosecution under s. 173(f) or s. 180 of the Criminal Procedure Code, the court must be satisfied that no case against the accused has been made out which if unrebutted would warrant his conviction (Munusamy v. PP [1987] CLJ Rep 221; [1987] 1 MLJ 492). If defence is called, the duty of the accused is only to cast a reasonable doubt in the prosecution case. He is not required to prove his innocence beyond reasonable doubt. 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." [75] Satu keputusan Mahkamah Inggeris yang sering digunakan oleh Mahkamah Persekutuan dan Mahkamah bawahan ialah kes Miller v. Minister of Pensions [1947] 2 All ER 372 di mana Lord Denning menerangkan tahap pembuktian oleh pendakwaan tanpa keraguan munasabah yang perlu di dalam kes-kes jenayah seperti berikut; S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 49 "That degree is well settled. It need not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence 'of course it is possible but not in the least probable', the case is proved beyond reasonable doubt, but nothing short of that will suffice." Pembelaan yang bersifat penafian semata-mata dan tidak menimbulkan keraguan munasabah terhadap Kes Pendakwaan [76] Pihak Pendakwaan menghujahkan bahawa segala keterangan yang diberikan oleh Tertuduh tidak berjaya menimbulkan suatu keraguan yang munasabah di dalam kes Pendakwaan. Pihak Pendakwaan juga menghujahkan bahawa pembelaan Tertuduh bersifat penafian semata- mata. Menurut pihak Pendakwaan: a) Secara rumusan, keterangan lisan Tertuduh yang menyatakan bahawa pemilikan terhadap barangan larangan dalam kes ini seolah-olah dimiliki oleh penama ‘Amin’ atau pihak ketiga sesungguhnya tidak dapat dibuktikan dan berbentuk penafian semata-mata. Tiada keterangan Saksi Pembelaan mahupun dokumen yang dikemukakan oleh pihak Pembelaan yang boleh menyokong penafian Tertuduh terhadap pemilikan barang larangan tersebut. S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 50 b) Pembelaan tidak sekalipun membangkitkan watak penama ‘Amin’ terhadap Saksi Pendakwaan dan juga tidak pernah menghujahkannya di akhir kes Pendakwaan. c) Selain itu, pihak Pendakwaan menghujahkan bahawa pihak Pembelaan telah gagal untuk mengukuhkan versi Pembelaannya dengan tidak memanggil penama ‘Amin’. [77] Mahkamah ini sekali lagi telah meneliti keseluruhan keterangan SP1 hingga SP7 dan adalah jelas bahawa watak penama ‘Amin’ ini tidak pernah diutarakan mahupun dibangkitkan oleh Peguambela Tertuduh sepanjang perbicaraan kes Pendakwaan. Ignorance is not a defence [78] Pihak Pendakwaan turut menghujahkan bahawa keterangan kes Pembelaan sendiri yang menyatakan bahawa Tertuduh mempunyai pengetahuan awal berkenaan barangan salah yang berada di dalam kenderaan miliknya dipersetujui oleh pihak Pendakwaan. [79] SD1 iaitu Tertuduh, semasa memberikan keterangan telah menyatakan sebagaimana berikut: Pemeriksaan Utama: ‘Selepas jumpa Amin, Amin ada barang, barang itu berplastik hitam. Saya tanya Amin ‘apa barang itu?’, Amin jawab ‘barang kerja’. Lepas itu, Amin tanya ‘you takut ke barang (dia) itu’, saya jawab ‘takut’. Selepas itu Amin tanya, ‘kalau takut tidak apa la, saya drive’. Lepas itu biarkan Amin drive, saya cuma duduk S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 51 di tempat penumpang sebelah dan main telefon. Sebab saya sudah letih pada masa itu, saya benarkan dia yang bawa kereta.’ ‘Saya tidak nampak barang di dalam (plastik) itu. Barang dalam plastik itu Amin letak dalam bonet belakang, lepas itu dia letak di tempat belakang pembawa kereta. Dia tutup guna kain, saya tidak nampak’. Pemeriksaan Balas: Soalan: Keterangan kamu yang lepas kamu menyatakan selepas jumpa Amin, Amin ada barang plastik hitam, kamu tanya apa barang itu kamu kata Amin jawab barang kerja. Selepas itu Amin tanya kamu takut ke barang dia, kamu jawab kamu takut? Jawapan: Ya. Soalan: Pada waktu itu kamu sampai di lokasi rumah Amin, bila kamu sampai apa yang kamu nampak? Jawapan: Masa itu sudah hujan, saya letih, jadi saya tidak keluar kereta. Dia suruh bawa pergi ke Kemasik. Soalan: Keterangan kamu, kamu tanya apa barang, Amin jawab barang kerja. Kamu sampai rumah dia, di mana Amin ketika itu? Jawapan: Dekat pintu rumah dia. S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 52 Soalan: Di manakah plastik-plastik hitam yang kamu maksudkan? Jawapan: Dekat rumah dia la. Soalan: Dekat rumah dia, di mana? Dalam rumah? Di luar rumah? Jawapan: Dalam rumah dia. [80] Wujud persoalan, apakah faktor yang menyebabkan Tertuduh menjawab ‘Takut’? Kontradiksinya Tertuduh mengatakan dia tidak nampak barang (dalam plastik) itu. Kesannya, adalah jelas bahawa sebagaimana keterangan SD1 sendiri, Tertuduh mempunyai pengetahuan awal berkenaan barangan salah yang berada di dalam kenderaan miliknya (P9). Mahkamah bersetuju dengan pihak Pendakwaan bahawa untuk mengatakan Tertuduh tiada pengetahuan langsung kandungan barang yang berada di dalam kenderaannya (P9) adalah tidak munasabah. Sama ada Tertuduh berjaya mematahkan anggapan undang-undang terhadapnya [81] Tiada sebarang dokumen dikemukakan oleh pihak Pembelaan kepada Mahkamah ini bagi membuktikan kewujudan permit import atau S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 53 dokumen pembayaran cukai/duti ke atas rokok-rokok yang dirampas tersebut. [82] Setelah memperhalusi keterangan Saksi-saksi Pembelaan, Mahkamah ini berpuas hati bahawa atas imbangan kebarangkalian, Tertuduh telah gagal mematahkan anggapan di bawah Seksyen 135(2) Akta Kastam 1967, Tertuduh telah gagal untuk membuktikan bahawa Tertuduh tiada pengetahuan berkenaan isi kandungan kenderaan P9 iaitu rokok-rokok yang dirampas (P11 hingga P50(A) hingga P50(T)) merupakan barangan larangan Kastam. [83] Kesimpulannya, Mahkamah ini berpendapat versi Pembelaan adalah tidak dapat dipertimbangkan mahupun diterima oleh Mahkamah. Tertuduh dalam keterangannya hanya kerap mengulangi perkataan ‘takut’ dan ‘letih’, tanpa menimbulkan sebarang keraguan mahupun mematahkan sebarang anggapan undang-undang terhadapnya. Hasil pemerhatian Mahkamah juga, sepanjang Tertuduh/SD1 memberi keterangan, Tertuduh boleh memahami dan menjawab soalan dalam Bahasa Malaysia, terutamanya semasa sesi Pemeriksaan Balas pada 06 Mac 2023. Di samping itu, Saksi-saksi Pembelaan lain juga dilihat tidak berjaya untuk membantu pihak Pembelaan dalam menimbulkan sebarang keraguan munasabah. Mahkamah ini percaya Pembelaan yang cuba dibangkitkan dilihat lemah, bersifat penafian semata-mata dan sama sekali tidak mendatangkan sebarang keraguan yang munasabah. [84] Mahkamah percaya lain-lain isu ini telah diketengahkan di peringkat kes Pendakwaan dan Mahkamah telah membincangkan isu ini S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 54 sebagaimana di atas. Maka, Mahkamah mengulangi alasan-alasan yang telah dibincangkan di atas. J. DAPATAN MAHKAMAH DI AKHIR KES PEMBELAAN [85] Selaras dengan peruntukan Seksyen 182A Kanun Tatacara Jenayah berserta peruntukan undang-undang yang telah dibincangkan di atas, tanggungjawab Mahkamah ini di akhir kes ini adalah untuk membuat penelitian dan penilaian terhadap pembelaan yang diutarakan dan setelah menilai kesemua keterangan yang dikemukakan, menentukan sama ada pihak Pendakwaan telah berjaya membuktikan kesnya melampaui keraguan yang munasabah. [86] Berdasarkan prinsip undang-undang yang telah dinyatakan serta setelah mendengar, meneliti, menimbang dan menilai keterangan yang dikemukakan oleh pihak Pembelaan dan setelah menilai kredibiliti saksi- saksi Pembelaan serta mengambilkira keseluruhan hujahan bertulis yang telah difailkan oleh kedua-dua belah pihak, Mahkamah ini mendapati dan memutuskan bahawa: i) Pihak Pendakwaan telah membuktikan kes untuk Pertuduhan pada tahap melampaui keraguan yang munasabah ii) Pihak Pembelaan telah gagal menimbulkan sebarang keraguan munasabah ke atas kes Pendakwaan. Oleh yang demikian, Tertuduh didapati bersalah bagi Pertuduhan Pindaan di bawah Seksyen 135(1)(d) Akta Kastam 1967 yang mana jika sabit kesalahan Tertuduh/OKT boleh dihukum di bawah Seksyen 135(1)(v)(aa) Akta yang sama. S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 55 [87] Mahkamah telah mempertimbangkan faktor-faktor berikut semasa menjatuhkan hukuman terhadap Tertuduh iaitu: a) Kepentingan Awam. Adalah menjadi matlamat penggubalan Akta Kastam 1967, antaranya adalah untuk menangani aktiviti penyeludupan yang semakin berleluasa. Jika jenayah sebegini tidak ditangani dengan segera, lambat laun ianya pasti akan melumpuhkan ekonomi negara dan pada masa yang sama menjejaskan keselamatan, keharmonian serta gaya hidup masyarakat. Mahkamah adalah bertanggungjawab untuk memastikan hukuman yang dikenakan dapat menggambarkan kepentingan awam diberikan keutamaan selari dengan hak Tertuduh. b) Tertuduh adalah pesalah pertama. Pihak Pendakwaan tidak mengemukakan sebarang keterangan bagi mengakas hujahan Peguambela Tertuduh berkenaan fakta ini. Pertimbangan bahawa Tertuduh merupakan pesalah pertama adalah menyumbang kepada peringanan hukuman. c) Keseriusan kesalahan yang dilakukan. Peguambela turut menghujahkan bahawa dalam kes ini, tiada mangsa yang cedera. Mahkamah ini juga mengambilkira keseriusan kesalahan yang oleh dilakukan Tertuduh telah memberi kesan terhadap ekonomi negara. Mahkamah mengambil notis kehakiman berkenaan nilai kehilangan cukai negara yang tinggi akibat daripada aktiviti tidak bertanggungjawab ini. S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 56 d) Latar belakang Tertuduh. Mahkamah ini juga mempertimbangkan latar belakang Tertuduh iaitu berumur 33 tahun serta mempunyai tanggungan seramai 02 orang iaitu ibubapa yang sudah uzur. Menurut Peguambela, hanya Tertuduh yang tinggal bersama ibubapanya yang telah tua serta uzur. Tertuduh masih muda dan belum berkahwin. Tertuduh bekerja sebagai seorang pemandu dengan pendapatan RM1500 sebulan. Tertuduh sebelum ini telah dibuang kerja dan hanya bekerja dalam negeri. Penyataan kekesalan dan keinsafan Tertuduh berkenaan kejadian ini yang diutarakan melalui Peguambela beliau juga diambilkira oleh Mahkamah ini. e) Tempoh pemenjaraan Pihak Pendakwaan percaya bahawa hukuman penjara dan denda sahaja mampu untuk memberikan pengajaran kepada Tertuduh mendidik masyarakat dan menjamin hasil negara bagi tujuan pembangunan kepada negara. Namun, Peguambela memohon budibicara Mahkamah untuk memberikan bon berkelakuan baik di bawah Seksyen 294 Kanun Tatacara Jenayah. Peguambela Tertuduh turut berhujah bahawa Seksyen 294 Kanun Tatacara Jenayah tetap merupakan satu hukuman ke atas Tertuduh kerana Tertuduh telah didapati bersalah dan disabitkan, tetap mempunyai rekod sabitan. Pihak Pembelaan merayu untuk satu hukuman yang tidak menyebabkan pergerakan OKT terbatas. Setelah mengambilkira bahawa kes ini telah mengambil masa yang lama untuk dilupuskan disebabkan faktor pandemik, selain jumlah S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 57 saksi yang agak ramai iaitu seramai 07 orang Saksi Pendakwaan dan 04 orang Saksi Pembelaan telah dipanggil memberi keterangan, Mahkamah percaya tempoh pemenjaraan selama 18 bulan bermula daripada tarikh sabitan adalah memadai dan setimpal dengan kesalahan yang dilakukan oleh Tertuduh. f) Hukuman berbentuk pencegahan Hukuman yang dijatuhkan terhadap Tertuduh perlu dijadikan pengajaran bukan sahaja kepada Tertuduh, malah kepada masyarat di luar sana amnya. Mahkamah percaya hukuman yang dijatuhkan perlu memberikan satu mesej yang jelas kepada masyarakat bahawa penyeludupan rokok adalah jenayah ekonomi yang besar dan Kerajaan memandangkan serius berkenaan kesalahan ini. Mahkamah percaya hukuman yang dijatuhkan perlu berbentuk pencegahan bagi mengelakkan kesalahan yang sama berulang di masa akan datang dan pada masa yang sama dapat membendung ketirisan hasil cukai negara. [88] Setelah menimbangkan faktor-faktor peringanan dan pemberatan hukuman, Mahkamah ini memutuskan Tertuduh dijatuhkan hukuman penjara selama 18 bulan bermula daripada tarikh sabitan (24 September 2023). Selaras dengan seksyen 119A(1) Akta Kastam 1967, OKT juga diperintahkan untuk membayar cukai sebanyak RM8,160.00 kepada Ketua Pengarah Kastam Diraja Malaysia, jika gagal bayar 02 bulan penjara. Selaras dengan seksyen 127(1) Akta Kastam 1967, eksibit P9 iaitu sebuah motorkar jenis Proton Waja bernombor pendaftaran CBJ 346 dan Eksibit P11 sehingga P50(A) hingga P50(T) iaitu rokok-rokok yang S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal _____________________________________________________ PP v. LIONG MENG SOH [83-18-02/2020] 58 dirampas, dilucuthak kepada Jabatan Kastam Diraja Malaysia untuk dilupuskan selepas rayuan (sekiranya ada). [89] Berdasarkan alasan-alasan berikut, Mahkamah ini berpendapat keputusan yang telah dikeluarkan adalah adil, wajar dan munasabah dan berdasarkan peruntukan undang-undang yang termaktub dalam Akta. Bertarikh pada 17 November, 2023 (TENGKU ELIANA BINTI TUAN KAMARUZAMAN) MAJISTRET MAHKAMAH MAJISTRET KEMAMAN Peguam: Bagi pihak Pendakwa Raya – Md. Safrizal bin Mohd Safian, Muhammad Adam bin Zahid & Nur Zahidah binti Razali Bagi pihak Tertuduh – Rozilawati binti Mat Hassan (Tetuan Rozilawati & Associates) S/N od6Qcyp6kCu/triBGqr1g **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

B-05(M)-260-05/2018

PERAYU Abdul Ra'of Bin Mohd Dimyati RESPONDEN Pendakwa Raya [Pendakwa Raya]

Seksyen 302 Kanun Keseksaan - perayu- perayu terhadap sabitan dan hukuman -“stab wounds to the chest” - seksyen 8 Akta Keterangan 1950 - pembelaan alibi - prima facie - circumstantial evidence- keterangan pembelaan diri secara bersumpah daripada kandang saksi - seksyen 182A Kanun Acara Jenayah- sama ada pembelaan alibi OKT telah berjaya dibuktikan pada tahap imbangan kebarangkalian seterusnya menimbulkan satu keraguan yang munasabah terhadap kes pendakwaan? - kesenjangan atau gap dalam pengendalian barang kes -‘evidential burden’ - Hakim bicara berhak untuk melihat keterangan dari sudut logik dan kemunasabahan dalam mencapai kesimpulan dan keputusan - circumstantial evidence - Rayuan oleh perayu dengan itu ditolak. Sabitan dan hukuman oleh Mahkamah Tinggi dikekalkan.

16/11/2023

YA Datuk Yaacob Bin Haji Md SamKorumYA Datuk Yaacob Bin Haji Md SamYA Datuk Ravinthran a/l ParamaguruYA Dato' Nordin Bin Hassan

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=7fc70f26-9aaf-47fd-a62f-97c355fc2050&Inline=true

1 DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA (BIDANGKUASA RAYUAN JENAYAH) RAYUAN JENAYAH NO. B - 05(M) - 260 - 05/2018 ANTARA ABDUL RA’OF BIN MOHD DIMYATI … PERAYU (K/P. NO: 891219-10-5811) LAWAN PENDAKWA RAYA … RESPONDEN [Dalam Perkara Tinggi Malaya, di Shah Alam Selangor Perbicaraan Jenayah No. 45B - 42 - 12/2015 Antara Pendakwa Raya Lawan Abdul Ra’of bin Mohd Dimyati (K/P. No : 891219-10-5811)] 16/11/2023 09:17:52 B-05(M)-260-05/2018 Kand. 43 S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 CORAM YAACOB HAJI MD SAM, HMR RAVINTHRAN A/L PARAMAGURU, HMR NORDIN BIN HASSAN, HMR ALASAN PENGHAKIMAN Pengenalan [1] Rayuan ini dibuat oleh perayu terhadap keputusan Mahkamah Tinggi di Shah Alam, Selangor yang telah mensabitkan perayu dengan kesalahan di bawah seksyen 302 Kanun Keseksaan dan menjatuhkan hukuman mati terhadap perayu. [2] Kami telah mendengar rayuan oleh perayu dan menolak rayuan perayu terhadap sabitan dan hukuman dan dengan itu sabitan dan hukuman terhadap perayu oleh Mahkamah Tinggi tersebut dikekalkan. [3] Kami memberikan alasan-alasan mengapa rayuan perayu ditolak dan sabitan serta hukuman terhadap perayu dikekalkan seperti di bawah ini. Pertuduhan [4] Tuduhan terhadap perayu adalah seperti berikut: S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 “Bahawa kamu pada 5 Mei 2015 jam lebih kurang 8.30 malam bertempat di kawasan lapang tepi Sekolah Rendah Agama Kuala Kubu Bharu, di dalam Daerah Hulu Selangor, di dalam Negeri Selangor Darul Ehsan telah melakukan bunuh dengan menyebabkan kematian terhadap seorang perempuan NORSALINA BTE NAZIR (NO. KP: 811112-14- 6252) dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan.” Kes Pendakwaan [5] Menurut keterangan Nazir bin Ramli (SP3) iaitu ayah si mati (Norsalina bte Nazir), pada 5.5.2015, jam lebih kurang 8.00 malam, si mati telah keluar rumah SP3 dengan memandu kereta si mati jenis Proton Wira nombor pendaftaran MBA 9544. Semasa hendak keluar, si mati ada berpesan kepada anak si mati bahawa si mati keluar untuk menghantar barang dan mengambil duit untuk persediaan pernikahan si mati dengan perayu (Abdul Ra’of bin Mohd Damyati). Bagaimana pun, SP3 dapati si mati tidak balik ke rumah SP3 pada malam tersebut. Pada jam lebih kurang 11.00 malam, SP3 cuba menghubungi si mati melalui telefon tangan si mati tetapi gagal kerana tiada jawapan daripada si mati. Pada lebih kurang jam 12.00 tengah malam, SP3 cuba sekali lagi menghubungi si mati tetapi tiada jawapan. Pada jam lebih kurang 1.00 pagi, SP3 cuba menghubungi lagi si mati tetapi masih tiada jawapan. Pada jam lebih kurang 3.00 pagi, SP3 sekali lagi cuba menghubungi si mati tetapi tiada juga jawapan daripada si mati. Sistem panggilan hanya memaklumkan “berada di luar kawasan”. Menurut SP3, si mati jika sekiranya keluar S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 rumah pada waktu malam, akan balik semula ke rumah SP3 sekitar jam 12.00 malam. [6] Pada jam lebih kurang 6.00 pagi 6.5.2015, SP3 dapati si mati masih belum pulang. SP3 keluar menunggang motorsikal untuk mencari si mati di sekolah perayu mengajar, iaitu Sekolah Rendah Agama Kuala Kubu Bharu. Perayu ialah teman lelaki si mati yang SP3 panggil sebagai “Ustaz Maarof”. Si mati ialah seorang janda dan mempunyai empat orang anak yang semuanya juga tinggal di rumah SP3. SP3 mengatakan perayu pernah dua kali datang ke rumah SP3 untuk berbincang tentang kesediaan perayu mengahwini si mati. SP3 mengatakan pada awalnya SP3 berhasrat menghubungi perayu untuk bertanyakan tentang si mati tetapi SP3 tidak jadi menghubungi perayu kerana SP3 tiada nombor telefon perayu. Setiba di kawasan lapang berhampiran sekolah tersebut lebih kurang jam 8.00 pagi, SP3 melihat kereta si mati berada di tepi jalan berdekatan dengan sekolah itu. SP3 telah pergi ke kereta si mati untuk melihat ke dalam kereta. SP3 dapati si mati dalam kedudukan seperti terbaring di dalam kereta di bahagian tempat duduk pemandu. SP3 memanggil nama si mati beberapa kali tetapi tiada jawapan daripada si mati. SP3 membuka pintu kereta si mati yang tidak berkunci dan dapati si mati telah meninggal dunia. SP3 melihat terdapat darah pada pakaian si mati. [7] Menurut SP3 lagi, kebetulan pada ketika itu terdapat sebuah kereta peronda polis (MPV) berada berdekatan warung menjual makanan tidak jauh daripada kereta si mati. SP3 pergi ke warung di mana terdapat dua anggota polis berada dan SP3 memaklumkan kepada anggota polis tersebut bahawa terdapat mayat anak SP3 dalam kereta. SP3 kemudian menghubungi ahli keluarganya termasuk bekas suami si mati (SP10 – S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 Mohd Nasir bin Ahmad) untuk memberitahu bahawa si mati telah meninggal dunia di dalam kenderaan. [8] Pada lebih kurang jam 9.20 pagi 6.5.2015, SP1 (RF Kpl. Abdul Halim bin Mohamad Maulana) yang bertugas di Balai Polis Kuala Kubu Bharu telah membuat laporan pertama (FIR) melalui Kuala Kubu Bharu Repot No. 000798/15 (P4) tentang penemuan mayat si mati. SP1 kemudian memaklumkan tentang laporan FIR tersebut kepada Ketua Balai Polis Kuala Kubu Bharu untuk seorang pegawai penyiasat (IO) ditugaskan untuk menyiasat kes kematian si mati. [9] ASP Chandra Segaran a/l Ellappan (SP15 – Pegawai Penyiasat) daripada IPD Hulu Selangor mengatakan berdasarkan kepada laporan FIR (P4) oleh SP1, SP15 dan sepasukan anggota polis bersama pegawai forensik telah pergi ke tempat kejadian berhampiran Sekolah Agama Kuala Kubu Bharu. SP15 melihat mayat si mati berada dalam kedudukan terlentang di tempat duduk pemandu dalam kereta si mati jenis Proton Wira. SP15 melihat terdapat empat tikaman di bahagian dada si mati, satu tikaman di bahagian rusuk kanan si mati dan satu tikaman di lengan kanan si mati. Tiada kunci kereta si mati dijumpai. Tiada juga apa-apa barangan peribadi si mati dijumpai di dalam kereta si mati. Mayat si mati kemudian di hantar ke Hospital Sungai Buloh untuk bedah siasat (pernyataan saksi SP15 ditandakan sebagai P81, muka surat 228-231 Rekod Rayuan Jilid 3(3). [10] Dr. Razuin bt Rahim (SP12) daripada Hospital Sungai Buloh telah menjalankan bedah siasat ke atas mayat si mati pada 6.5.2015. Hasil bedah siasat mendapati terdapat lima (5) tikaman pada bahagian dada si mati dan satu (1) tikaman pada bahagian rusuk kiri si mati. SP12 S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 mengatakan luka tikaman-tikaman tersebut adalah fatal. SP12 mengesahkan si mati mati disebabkan “stab wounds to the chest”. SP12 mengatakan melihat kepada tikaman yang ditimpakan ke atas si mati yang menembusi jantung si mati, kematian si mati adalah serta merta akibat tikaman tersebut (muka surat 244-245 Rekod Rayuan Jilid 2(3)). SP12 juga mengatakan terdapat luka-luka lain pada anggota tubuh badan si mati yang SP12 berpendapat adalah luka-luka yang dialami oleh si mati semasa si mati mempertahankan diri (defensive wounds). Laporan bedah siasat oleh SP12 ditandakan sebagai eksibit P33 (lihat keterangan SP12 di muka surat 225 hingga 230 Rekod Rayuan Jilid 2(3)). [11] ASP Manimaran a/l Muniandi (SP11) mengatakan pada 6.5.2015 lebih kurang jam 9.40 pagi, SP11 dan sepasukan anggota polis telah membuat tangkapan ke atas perayu (Abdul Ra’of bin Mohd Dimyati) di rumah perayu beralamat di No. 33, Jalan Songket 4, Taman Bukit Bujang, Kuala Kubu Bharu. Perayu telah dibawa ke IPD Hulu Selangor untuk siasatan. SP11 telah membuat laporan polis terhadap tangkapan perayu melalui KKB Repot 800/15 (P26). [12] SP11 selanjutnya dalam keterangannya mengatakan selepas membuat tangkapan ke atas perayu, pada hari yang sama 6.5.2015, SP11 telah membuat soal siasat ke atas perayu di IPD Ulu Selangor. Hasil soal siasat tersebut SP11 telah membuat beberapa rampasan berkaitan barang kes berdasarkan maklumat-maklumat yang diberikan oleh perayu dan pandu arah oleh perayu. SP11 telah mencatitkan maklumat- maklumat yang diberikan oleh perayu dalam sehelai kertas putih dan membuat laporan polis KKB Repot 802/15 (P27) berkaitan penemuan dan rampasan barang-barang kes di beberapa lokasi yang dikatakan relevan dengan siasatan kematian si mati. SP11 juga telah membuat rampasan S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 beberapa helai pakaian, satu unit telefon tangan jenama Lenovo dan sebuah motokar dari rumah perayu. SP11 membuat laporan polis KKB 00810/15 atas penemuan dan rampasan tersebut (P28). SP11 juga telah membuat rampasan sapasang kasut sukan jenama LPN yang setiap sebelah kiri dan sebelah kanan kasut tersebut ditemui dan di rampas di dua tempat yang berasingan. SP11 membuat laporan polis atas penemuan dan rampasan kasut sebelah kiri tersebut melalui Selayang Repot 10386/15 (P29) dan laporan polis atas penemuan dan rampasan kasut sebelah kanan melalui Rawang Repot 5844/15 (P31). [13] Barang-barang kes yang ditemui dan dirampas oleh SP11 hasil daripada maklumat oleh perayu dan dipandu arah oleh perayu, (diambil gambar oleh jurufoto atas arahan SP11 di tempat barangan-barangan tersebut ditemui dan dirampas), adalah seperti berikut (P11 gambar (1) - (43)): (i) satu beg plastik hitam (P46A) yang mengandungi barangan si mati di Jalan Sungai Tua (keterangan SP11 di muka surat 212 Rekod Rayuan Jilid 3(2). Beg plastik ini dijumpai 65 meter bawah dalam gaung di bawah jambatan di Jalan Sungai Tua (lihat gambar 18, 19, 21, 22 dan 31 muka surat 80, 81 dan 87 Rekod Rayuan Jilid 3(2). Barangan milik si mati yang terdapat dalam beg plastik hitam tersebut, yang dibuat tandaan oleh SP11 adalah seperti berikut: (a) satu unit telefon tangan jenis Samsung bersarung biru yang ada kesan darah (E8)(P43A); S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 (b) Satu unit telefon tangan jenis Samsung bersarung kuning yang ada kesan darah (E9)(P43B); (c) Beg duit/dompit jenama POLO (E10)(P45A) yang mengandungi- - Kad Visa BSN atas nama si mati (E10A); - Kad Debit Visa Maybank atas nama si mati (E10B); - Kad CIMB Master Kad atas nama si mati (E10C); - Kad Hari-Hari (E10D); - Kad Insuran AIA (E10E); - Kad EON Member (E10F); - Kad Pengenalan si mati (E10G); - Kad Bonus Link (E10H); - Tesco Club Card (E10I); - Popular Student Card (E10J); - Shaklee Distributor Authority Card (E10K); - Lesen Memandu simati (E10L); - Kad Bekas Anggota Tentera atas nama Mohd Nasir bin Ahmad (E10M); - 2 keping wang kertas RM1.00(B10N(A) dan B10N(B). (ii) beberapa helaian pakaian di rumah perayu dirampas dari dalam sebuah bakul di bahagian dapur rumah, iaitu (a) dua helai t-shirt lengan panjang warna biru berkolar kuning bertulis “Saba Construction Sdn Bhd”, dan (b) 1 helai seluar panjang warna green Grandino Royal (keterangan SP11 di muka surat 212 dan 214 Rekod Rayuan Jilid 2(3); S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 (iii) satu unit telefon jenama Lenovo atas satu rak di ruang tamu rumah perayu (keterangan SP11 di muka surat 215 Rekod Rayuan Jilid 2(3); (iv) sebuah motokar model Proton nombor pendaftaran WQW 4814 di rampas di hadapan rumah perayu (keterangan SP11 di muka surat 214 Rekod Rayuan Jilid 2(3). (v) sebelah kasut kiri jenama PLKN milik perayu yang ditemui di atas rumput di tepi jalan Mutiara 1, Selayang Mutiara, Batu Cave, perumahan PKNS Selangor, di Selayang pada jam 8.00 malam 6.5.2015 (ditandakan sebagai F1 oleh SP11)(keterangan SP11 di muka surat 212 dan 215 Rekod Rayuan Jilid 2(3). SP13 mengatakan ada kesan darah pada kasut tersebut dan SP13 ada membuat kesatan darah tersebut untuk ujian DNA tetapi tidak dapat dibuat pengesahan DNA; (vi) sebelah kasut kanan perayu jenama PLKN ditemui di tengah- tengah jalan di KM 28.8 Lebuhraya Latar dari arah Rawang ke Kuala Selangor pada jam 8.30 malam 6.5.2015 (ditandakan sebagai F2 oleh SP11)(keterangan SP11 di muka surat 112 dan 115 Rekod Rayuan Jilid 2(3). SP13 mengatakan ada kesan darah pada kasut tersebut dan SP13 ada membuat kesatan darah tersebut untuk ujian DNA tetapi tidak dapat dibuat pengesahan DNA. S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 [14] Menurut SP15, pada 9.5.2015 hasil daripada maklumat perayu dan dengan dipandu arah oleh perayu, SP15 telah menemui dan merampas kunci kereta milik si mati dari dalam semak bersebelahan Sekolah Agama Kuala Kubu Bharu (lihat P15 gambar 44 muka surat 93 Rekod Rayuan Jilid 3(2). SP15 ada membuat catitan pada kertas tentang maklumat perayu berkaitan kunci kereta si mati dan laporan polis KKB 000830/15 atas penemuan dan rampasan kunci kereta si mati dan mengeluarkan borang bongkar (P84 catitan maklumat, P86 laporan polis dan borang bongkar (P87). [15] Menurut keterangan SP15 lagi, pada 9.5.2015, berdasarkan kepada maklumat yang diberikan oleh perayu kepada SP11 (ASP Manimaran) dan dengan dipandu arah oleh perayu, SP15 telah menemui dan merampas sebilah pisau berhulu warna biru sepanjang 11 inci (P34A) dalam hutan di Jalan Sungai Tua (keterangan SP12 di muka surat 321 Rekod Rayuan Jilid 2(4) dan P15 gambar 34 dan 35 muka surat 88 & 89 Rekod Rayuan Jilid 3(2). SP13 ahli kimia mengatakan terdapat kesan darah pada pisau tersebut dan SP12 ada buat kesatan darah tersebut untuk tujuan DNA tetapi tidak dapat disahkan dengan pasti melalui ujian DNA. [16] Erizasyira binti Basri (SP13) ahli kimia mengesahkan bahawa hasil daripada ujian Deoxyribonucleic Acid (DNA) yang dilakukan atas barang- barang kes milik si mati yang diserahkan kepada beliau oleh SP15, SP13 mengesahkan terdapat kehadiran air mani yang dikenalpasti sebagai milik perayu pada baju hitam ‘cardigan’ (P58A). SP13 juga mengatakan ada kehadiran air mani pada ‘headband’ (P55A) dan ‘corset’ (P60A) tetapi tidak dapat disahkan dengan pasti melalui ujian DNA. SP13 juga mengesahkan melalui ujian DNA terdapat kehadiran darah milik si mati S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 pada dua sarung tangan (P41A & P42A). Dua sarung tangan P41A & P42A ini ditemui oleh SP11 di dalam semak gaung di Jalan Sungai Tua dan dirampas oleh SP11 hasil dari maklumat dan tunjuk arah oleh perayu pada 6.5.2015 setelah perayu ditangkap (lihat P15 gambar 15 & 16 muka surat 79 Rekod Rayuan Jilid 3(2). SP13 telah mengemukakan laporan analisa DNA yang dilakukan oleh beliau (P35 – Rekod Rayuan Jilid 3(3) muka surat 186-195). [17] Mohd Nasir bin Ahmad (SP10) ialah bekas suami si mati. SP10 mengatakan walaupun SP10 dan si mati telah bercerai, tetapi SP10 masih membantu perniagaan City Link si mati dalam menghantar barangan tempahan pelanggan City Link. SP10 mengetahui kematian si mati melalui SP3. SP10 tahu perayu ialah teman lelaki si mati dan SP10 juga tahu perayu dan si mati akan berkahwin. SP10 mengatakan beliau tidak cemburu atas hubungan si mati dengan perayu yang beliau kenali sebagai Ustaz Maarof. Keputusan Di Akhir Kes Pendakwaan [18] Diakhir kes pendakwaan, Yang Arif Hakim Mahkamah Tinggi (Hakim bicara) menimbangkan elemen-elemen berikut yang perlu dibuktikan oleh pihak pendakwaan sebelum perayu boleh dipanggil membela diri (perenggan 7 Alasan Penghakiman, muka surat 11 Rekod Rayuan Jilid 1): (i) Bahawa satu kematian telah berlaku dan si mati adalah Norsalina bte Nazir. S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 (ii) Bahawa si mati telah mati akibat bencana tubuh yang dialaminya. (iii) Bahawa bencana tubuh itu adalah akibat perbuatan OKT (orang kena tuduh). (iv) Bahawa perbuatan OKT itu telah dilakukan dengan niat hendak menyebabkan kematian, atau dengan niat hendak menyebabkan satu bencana tubuh yang mana OKT mengetahuinya mungkin akan menyebabkan kematian ke atas si mati dan bencana tubuh yang dilakukan itu cukup pada lazimnya bagi menyebabkan kematian kepada si mati atau jika OKT mengetahui bahawa perbuatan itu adalah sebegitu bahaya sekali sehingga mungkin menyebabkan kematian dan ia melakukan perbuatan itu dengan tiada apa-apa sebab bagi mendatangkan bahaya menyebabkan kematian atau bencana tubuh sebagaimana tersebut itu. [19] Hakim bicara merujuk kepada kes-kes otoriti berikut sebagai panduan dalam menimbangkan samada pihak pendakwaan berjaya membuktikan satu kes prima facie terhadap perayu di bawah pertuduhan seksyen 302 Kanun Keseksaan – Faizal Din v. Public Prosecutor [1949] 15 MLJ 123; Sainal Abidin bin Mading v Public Prosecutor [1999] 4 CLJ 215; Tham Kai Yau & Ors v Public Prosecutor [1977] 1 MLJ 174; Cheong Kam Kuan v Pendakwa Raya Rayuan Jenayah No. 05-172- 2011 (W) Mahkamah Persekutuan Malaysia. [20] Berhubung elemen pertama, Hakim bicara berpuashati dan tidak dipertikaikan oleh pihak pembelaan, bahawa si mati ialah Norsalina bte S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 Nazir dan mayat si mati telah dicamkan oleh anak saudara si mati bernama Zanita bt Mohd Zain. [21] Berhubung elemen kedua, Hakim bicara merujuk kepada keterangan pakar pathologi Dr. Razuin bt Rahimi (SP12) yang memberikan perincian dapatan bedah siasat mayat si mati di mana SP12 dapati kecederaan yang dialami oleh si mati adalah seperti berikut (muka surat 13 – 14 Rekod Rayuan Jilid 1): “Pemeriksaan luaran (2) Bahagian mata dan bibir kelihatan pucat, akibat kehilangan darah yang banyak. (3) Terdapat beberapa kecederaan luka tajam seperti berikut: (A) Sekelompok 5 luka tikam di bahagian dada yang dilebelkan dengan no. 1-5. Luka tikam dengan label no. 2 & 3 berukuran paling dalam, iaitu 20.5 dan 12 sm. Luka tikam yang lain mempunyai kedalaman 5-6 sm. (B) Luka berlabel no.5. Hanya menembusi kulit dan otot. (C) 4 lagi luka tikam di bahagian dada – tembus ke rongga dada hingga mencederakan jantung dan kedua-dua belah paru-paru. S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 (D) Sekelompok luka hiris superfisial di bahagian abdomen bernombor 6, 7 dan 8. Luka-luka ini tidak menembusi otot mahupun rongga abdomen. (E) Terdapat satu lagi luka tikam di bahagian rusuk kiri – berlabel no. 10. (F) Kecederaan lain – pada anggota gerak atas. Sebelah kanan : 2 luka berlabel no. 11 & 12 – pada lengan dan siku. Luka hiris pada tapak tangan dan jari – berlabel no. 13. Hasil pemeriksaan dalaman: (1) Tiada kecederaan atau apa-apa kelainan pada bahagian kepala dan leher. (2) Pada bahagian dada, terdapat kecederaan seperti berikut: (A) Luka potong pada kedua belah tulang rusuk. Kanan: rib no. 2 & 3. Kiri: 2, 3, 5, 6, 8. (B) Luka potong pada T9. (C) Pendarahan di dalam kedua rongga pluera-kanan: 550 ml, kiri: 200 ml (695 gm ketulan darah) = 1600 ml. S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 (D) Kedua belah paru-paru telah menguncup (collapsed). Terdapat luka penetrasi pada kedua belah paru-paru. (E) Pemeriksaan jantung juga menunjukkan adanya 2 luka penetrasi yang menembusi jantung dari bahagian hadapan ke bahagian belakang. (3) Pada bahagian abdomen, terdapat ketulan darah di bahagian bawah diafragma kiri berukuran 600 gm. Organ dalam seperti hati dan buah pinggang kelihatan pucat akibat kehilangan darah.” [22] SP12 mengesahkan kematian si mati disebabkan oleh “stab wounds to the chest”. SP12 juga mengatakan peluang untuk si mati hidup adalah sangat tipis melihat kepada dalamnya kecederaan tikaman- tikaman yang dialami oleh si mati. Oleh itu kecederaan tikaman yang dialami oleh si mati adalah lazimnya akan membawa kematian dan fatal. SP12 juga mengatakan dari pengamatan beliau, si mati mati serta merta akibat tikaman yang kuat dan dalam yang menembusi jantung dan paru- paru dan berkemungkinan kedudukan si mati telah dialihkan oleh seseorang kepada keadaan si mati duduk di kerusi pemandu dalam kereta si mati tersebut. Hakim bicara menerima kepakaran dan keterangan SP12 tersebut dan mendapati elemen kedua telah dibuktikan oleh pihak pendakwaan (perenggan 9, 31, 32 dan 33 Alasan Penghakiman). S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 [23] Hakim bicara selanjutnya menimbangkan elemen ketiga yang perlu dibuktikan oleh pihak pendakwaan bahawa kematian si mati berlaku akibat daripada perbuatan perayu. Hakim bicara menimbangkan keterangan SP13 (Erizasyira binti Basri - ahli kimia) yang telah membuat analisa DNA ke atas barang kes dan mengesahkan kehadiran air mani perayu pada pakaian si mati, iaitu ‘cardigan’, ‘head-band’ dan ‘corset’ (P58A, P55A dan P60A). Hakim bicara juga menimbangkan keterangan SP11 dan SP15 berkaitan maklumat-maklumat yang diberikan oleh perayu kepada SP11 dan SP15 yang membawa kepada jumpaan dan rampasan barangan milik perayu dan juga milik si mati yang dijumpai di beberapa tempat yang berasingan setelah SP11 dan SP15 dipandu arah oleh perayu ke lokasi barangan tersebut dibuangkan oleh perayu. Hakim bicara mendapati perlakuan perayu tersebut adalah relevan untuk diterima masuk sebagai keterangan di bawah seksyen 8 Akta Keterangan 1950 (perenggan 23A Alasan Penghakiman). Hakim bicara juga menimbangkan hujahan peguamcara perayu berkaitan pembelaan alibi yang hendak diketengahkan oleh perayu bahawa perayu pada malam tersebut menghadiri satu mesyuarat dan selepas itu perayu pergi memancing bersama rakannya dan dengan yang demikian perayu dihujahkan sebagai tidak berada di tempat kejadian ketika si mati dibunuh. [24] Hakim bicara setelah menimbangkan semua keterangan, membuat dapatan berikut (perenggan 28 Alasan Penghakiman): “28. Kesimpulan daripada alasan-alasan ini, saya berpuas hati bahawa pihak pendakwaan telah berjaya membuktikan pada tahap prima facie bahawa OKT adalah orang yang telah S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 menyebabkan kecederaan kepada si mati yang menyebabkan kematian kepada si mati.” [25] Hakim bicara juga setelah menimbangkan keterangan mengikut keadaan (circumstantial evidence) yang menjadi pergantungan pihak pendakwaan dalam pembuktian kes pendakwaan, membuat dapatan berikut (perenggan 36 & 37 Alasan Penghakiman); “36. Di dalam kes semasa setelah mengumpulkan keseluruhan keterangan saksi-saksi pendakwaan secara keseluruhannya, saya berpuashati bahawa keterangan-keterangan saksi-saksi pendakwaan tersebut adalah cukup untuk menjadikan seutas tali yang kuat untuk menjerut leher OKT di dalam kes ini. 37. Berdasarkan kepada alasan-alasan yang dinyatakan di atas, Mahkamah ini berpuashati bahawa setelah membuat satu penilaian maksima kepada keterangan saksi-saksi pendakwaan, satu kes prima facie telah dibuktikan terhadap OKT.” [26] Perayu oleh itu telah dipanggil untuk membela diri terhadap pertuduhan. Pembelaan Perayu [27] Perayu memberi keterangan pembelaan diri secara bersumpah daripada kandang saksi. Perayu juga memanggil empat saksi lain untuk menyokong pembelaan perayu dalam isu pembelaan alibi oleh perayu. S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 [28] Kami butirkan pembelaan perayu seperti mana yang dinyatakan oleh Hakim bicara dalam Alasan Penghakiman (perenggan 39 Alasan Penghakiman) adalah seperti berikut: “(a) Pada 5 Mei 2015 jam 7.50 malam selepas solat magrib, OKT telah pergi ke Restoran Rose Seafood di Taman Bukit Bujang untuk berjumpa dengan Ustaz Nazri (SD2) bertujuan untuk mesyuarat Kemahiran Amal Islam (KAMIL) 2015. SD2 telah memberitahu OKT yang dia dilantik oleh Jawatankuasa Induk sebagai jurufoto. (b) Hari yang sama jam 9.00 malam, kawan OKT, SD3 telah datang ke Restoran Rose Seafood, untuk mendapat pengesahan OKT sama ada mereka akan pergi memancing di Empangan Kuala Kubu Bharu atau Dam Pertak. OKT berkata dia akan pergi memancing selepas selesai mesyuarat dengan SD2. (c) Jam 9.40 malam, OKT telah pulang untuk mengambil keretanya. OKT telah pergi ke Dam Pertak untuk memancing bersama-sama dengan SD3, mereka tiba di empangan itu jam 12.00 malam, dan mereka memancing sehingga jam 1.00 pagi, selepas itu mereka berdua balik. (d) OKT kemudian telah menghantar SD3 ke Restoran Rose Seafood, dan seterusnya memandu keretanya WQW 4814 untuk balik ke rumahnya. Dalam perjalanan OKT telah teringat untuk mengambil buku latihan murid-murid beliau di sekolah S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 untuk disemak dan dikembalikan kepada murid-muridnya keesokan harinya. (e) Sampai di hadapan Sekolah Agama Kuala Kubu Bharu, OKT melihat kereta si mati, yang juga kekasihnya berada di tepi sekolah berkenaan. OKT telah memberhentikan keretanya di sebelah kereta si mati dan OKT telah turun untuk melihat. (f) Menurut OKT, pada masa itu beliau melihat si mati sedang terbaring di dalam keretanya. OKT cuba menggerakkannya namun si mati tidak bergerak lagi. (g) Menurut OKT, pada masa itu beliau berasa cemas dan panik serta takut dia dikaitkan dengan kematian si mati, lalu OKT telah mengumpulkan barang-barang peribadi si mati, termasuk kunci kereta si mati, pisau dan sarung tangan yang digunakan untuk memancing, kasut yang dipakainya dan membuangkannya di Lebuhraya Latar. (h) Selepas itu, OKT telah balik ke rumahnya dan membuka pakaian yang dia pakai dan diletakkan ke dalam bakul berdekatan dengan mesin basuh, selepas mandi dan solat, OKT telah tidur. OKT berkata yang dia bercadang untuk membuat laporan polis pada pagi esoknya. (i) Pada jam 9.40 pagi 6 Mei 2015, OKT telah ditahan oleh ASP Manimaran dan dibawa ke Balai Polis Kuala Kubu Bharu. S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 (j) Hasil soal siasat, OKT telah memandu arah pasukan polis untuk mencari dan mengumpulkan kembali barang-barang peribadi si mati, sarung tangan, pisau, kasut OKT dan kunci kereta si mati yang telah dibuang oleh OKT sebelum itu.” Dapatan Hakim Bicara Di Akhir Kes Pembelaan [29] Hakim bicara diakhir kes pembelaan, telah menimbangkan keterangan pembelaan perayu dan saksi-saksi perayu serta hujahan peguamcara perayu atas isu alibi yang menjadi pembelaan perayu. Dalam isu tahap pembuktian pembelaan, Hakim bicara telah merujuk kepada seksyen 182A Kanun Acara Jenayah dan kes PP v Mohd Razdi bin Abu Bakar [2006] 1 CLJ di muka surat 467. [30] Dalam isu pembelaan alibi dan beban pembuktian alibi, Hakim bicara telah merujuk kepada prinsip undang-undang berkaitan alibi yang digariskan dalam kes-kes otoriti berikut: PP v Muslim Ahmad [2013] 5 CLJ 823; Ku Lip See v Public Prosecutor [1982] 1 MLJ 94; Dato’ Mokhtar Hashim v PP [1983] 2 MLJ 233; Shanmugam v PP [1963] 29 MLJ 125 dan Duis Akim v PP [9 CLJ 692 FC; Nagappan a/l Kuppusamy v PP [1988] 2 MLJ 53. [31] Hakim bicara dalam menimbangkan pembelaan OKT khususnya pembelaan alibi perayu, mengatakan seperti berikut (perenggan 47, 48 dan 49 Alasan Penghakiman): “47. Berdasarkan kepada keputusan kes-kes di atas, untuk berjaya OKT hanya perlu menimbulkan satu keraguan yang S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 munasabah bahawa beliau bukanlah orang yang berada di tempat kejadian, dan kes-kes terdahulu memutuskan bahawa adalah tidak perlu keterangan membela dirinya disokong. 48. Persoalan di sini ialah sama ada pembelaan alibi OKT telah berjaya dibuktikan pada tahap imbangan kebarangkalian seterusnya menimbulkan satu keraguan yang munasabah terhadap kes pendakwaan? Bagi tujuan ini, saya telah meneliti pembelaan OKT, di samping juga menyemak kembali kes pendakwaan (Rujuk kes Nagappan a/l Kuppusamy v PP [1988] 2 MLJ 53). 49. Walaupun pembelaan alibi OKT telah disokong oleh saksi- saksi beliau, bagaimana pun, satu fakta yang harus diberikan pertimbangan oleh Mahkamah ini ialah bukan pada semua masa material saksi-saksinya berada bersama-sama OKT, SD2 dan SD3 tidak berada bersama-sama OKT semasa OKT balik untuk mengambil keretanya dan SD3 telah tidak lagi bersama-sama OKT selepas OKT meninggalkannya di Restoran Rose Seafood selepas mereka memancing.” [32] Selanjunya Hakim bicara membuat dapatan berikut (perenggan 52 Alasan Penghakiman): “52. Berdasarkan kepada alasan-alasan ini dan kes-kes yang dirujuk, saya berpuashati bahawa OKT telah gagal di atas imbangan kebarangkalian untuk membuktikan pembelaan alibi beliau. Seterusnya pembelaan alibi OKT adalah tidak boleh bertahan.” S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 [33] Seterusnya Hakim bicara pada perenggan 54 Alasan Penghakiman mengatakan: “54. Walaupun OKT telah dipanggil untuk membela diri atas pertuduhan, undang-undang menetapkan bahawa tiada apa- apa beban yang diletakkan terhadap OKT untuk membuktikan yang beliau tidak bersalah, sekiranya ada, ia adalah ringan, iaitu hanya menunjukkan bahawa terdapat satu keraguan yang munasabah.” [34] Setelah memberi pertimbangan kepada pembelaan perayu, Hakim bicara membuat dapatan seperti berikut (perenggan 64 Alasan Penghakiman): “64. Selepas meneliti pembelaan OKT di atas sumpah dan meneliti hujah-hujah oleh kedua-dua pihak, saya berpuashati bahawa pembelaan OKT itu sesuatu yang sukar untuk dipercayai khususnya kepada perkara-perkara berikut: (a) OKT berkata selepas beliau melihat mayat si mati beliau berasa takut, cemas dan panik, mengapa seharusnya OKT boleh berperasaan sedemikian? Jika beliau tidak membunuh si mati perasaan panik yang dinyatakan oleh OKT tersebut adalah satu penjelasan yang tidak sepatutnya berlaku kepada seorang yang normal dan munasabah. S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 (b) Kerana perasaan panik tersebut beliau telah mengambil keputusan untuk mengambil barang-barang peribadi si mati untuk dibuang di merata-rata tempat adalah mustahil bagi seseorang yang berada di dalam keadaan panik, cemas dan takut boleh memandu kereta ke merata-rata tempat semata-mata untuk menghilangkan barang bukti di dalam satu kes kecuali beliau telah merancangkan terlebih dahulu. (c) OKT bukan sahaja membuang barang-barang peribadi si mati dan kunci kereta si mati, malah turut membuang pisau dan sarung tangannya yang dikatakan oleh OKT digunakan untuk memancing. Seterusnya OKT turut membuang kasut yang dipakainya kerana beliau takut. Perbuatan ini juga bukanlah menunjukkan perbuatan seorang yang tidak bersalah malah amat sukar untuk dipercayai. (d) Tindakan OKT memasukkan barang-barang peribadi simati ke dalam sebuah beg hitam juga bukanlah suatu perbuatan seorang yang panik. (e) Tindakan OKT yang tidak membuat laporan polis dengan segera setelah menjumpai mayat kekasihnya juga bukanlah satu tindakan seorang yang munasabah. OKT berkata dia sayangkan si mati yang mana mereka telah merancang untuk berkahwin dalam masa terdekat dan persiapan untuk perkahwinan mereka sedang S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 rancak dilakukan oleh si mati dan keluarga si mati. Penjelasan OKT ialah beliau bercadang untuk membuat laporan polis pada esok hari. (f) Persoalan di sini, ialah mengapakah OKT melengah- lemgah untuk membuat laporan polis sedangkan beliau selepas menemui mayat si mati di dalam keretanya telah mengambil masa yang banyak untuk pergi ke merata- rata tempat untuk membuang barang-barang si mati dan juga barang-barangnya sendiri. (g) Adalah juga satu keadaan yang tidak boleh dipercayai bahawa walaupun OKT telah merancang untuk berkahwin dengan si mati dan keberlangsungan perkahwinan itu akan diadakan pada masa terdekat, tetapi keluarga OKT khususnya SD7, ayah kepada OKT langsung tidak diberitahu untuk meminang bakal isteri OKT ini. Penjelasan OKT ialah keluarganya tidak kisah dan mengizinkan OKT untuk berkahwin dengan sesiapa sahaja pilihannya. Jelas di sini terdapat satu keadaan yang pelik dan tidak munasabah memandangkan OKT adalah anak sulong di dalam keluarga itu, masakan tidak ada persediaan dilakukan oleh keluarga si mati untuk menyambut menantu mereka.” [35] Kesimpulannya Hakim bicara dapati pembelaan OKT gagal menimbulkan apa-apa keraguan terhadap kes pendakwaan dan pihak pendakwaan telah membuktikan kes tanpa keraguan yang munasabah S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 terhadap perayu dan dengan itu perayu telah disabitkan dengan pertuduhan dan dijatuhkan hukuman mati di bawah seksyen 302 Kanun Keseksaan. [36] Perayu yang tidak berpuas hati terhadap keputusan Hakim Mahkamah Tinggi tersebut, telah membuat rayuan ke Mahkamah ini terhadap sabitan dan hukuman. Rayuan Perayu [37] Di hadapan kami, peguamcara yang terpelajar bagi pihak perayu mengemukakan tiga alasan rayuan dalam mencabar keputusan Hakim bicara : (a) Hakim bicara khilaf dari segi fakta dan undang-undang apabila menolak pembelaan alibi perayu di mana Hakim bicara meletakkan tahap beban pembuktian yang lebih tinggi terhadap pembelaan alibi perayu; (b) Hakim bicara khilaf dari segi fakta dan undang-undang apabila gagal memutuskan bahawa terdapat kesenjangan atau gap dalam pengendalian barang kes yang terdapat kehadiran air mani perayu; dan (c) Hakim bicara khilaf dari segi fakta dan undang-undang dalam mensabitkan perayu terhadap pertuduhan sedangkan keterangan mengikut keadaan yang terdapat tidak cukup untuk mensabitkan perayu dengan pertuduhan. S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 Analisa dan Keputusan Kami (a) Hakim bicara khilaf dari segi fakta dan undang-undang apabila menolak pembelaan alibi dan meletakkan tahap beban pembuktian yang lebih tinggi terhadap pembelaan alibi perayu [38] Peguamcara terpelajar bagi pihak perayu merujuk kepada Notis Alibi oleh perayu bertarikh 7.8.2017 (P90 - muka surat 242 Rekod Rayuan Jilid 3(4)). Peguamcara menghujahkan keterangan SD2 dan SD3 menyokong pembelaan alibi perayu dan Hakim bicara khilaf apabila menolak keterangan SD2 (Mohd Nazri bin Tastik) dan SD3 (Muhammad Shafie bin Zul). Peguamcara merujuk kepada Alasan Penghakiman Hakim bicara di perenggan 47 dan 48 dan menghujahkan Hakim bicara telah meletakkan beban pembuktian yang lebih tinggi daripada yang sepatutnya di sisi undang-undang terhadap pembelaan alibi perayu. Peguamcara selanjutnya menghujahkan perayu hanya perlu mengemukakan keterangan ‘evidential burden’. Peguamcara menghujahkan keterangan SD2 serta SD3 adalah kukuh. Peguamcara menghujahkan berdasarkan kepada pertuduhan, perayu dikatakan melakukan kesalahan bunuh ke atas simati lebih kurang jam 8.00 malam pada 5.5.2013 tetapi keterangan pembelaan alibi perayu adalah merangkumi tempuh waktu daripada jam 7.45 malam hingga jam 2.00 pagi. Peguamcara selanjutnya menghujahkan bahawa Hakim bicara membuat spekulasi sendiri bahawa perayu pada malam tersebut berkemungkinan ada berjumpa si mati semasa perayu tidak bersama SD2 atau SD3. Peguamcara juga menghujahkan bahawa Hakim bicara tidak menggunakan seksyen 27 Akta Keterangan untuk menolak pembelaan alibi perayu. S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 [39] Kami meneliti keterangan SD2. SD2 mula mengenali perayu pada tahun 2013 tetapi bukan sebagai kenalan rapat SD2. SD2 berumur 42 tahun. Pada tahun 2015, SD2 yang bertugas sebagai seorang guru ugama telah dipilih oleh Jabatan Islam Negeri Selangor (JAIS) sebagai ketua jurufoto dan unit rakaman untuk Program Kemahiran Amal Islam (KAMIL) anjuran JAIS. SD2 mengatakan beliau telah melantik perayu untuk menjadi salah seorang jurufoto untuk program KAMIL tersebut. Program KAMIL tersebut yang akan berlangsung pada 9.5.2015 melibatkan pertandingan marhaban, khutbah, tilawah, nasyid dan sebagainya untuk sekolah rendah agama di negeri Selangor. SD2 mengemukakan buku cenderamata KAMIL 2015 (P79(B) yang terdapat nama SD2 sebagai ahli jawatankuasa bahagian unit rakaman. SD2 mengatakan terdapat 8 nama disenaraikan di bawah bahagian unit rakaman termasuk nama perayu sebagai jurufoto. Tetapi SD2 tidak tahu bagaimana nama SD2 cuma tercatit di bahagian luar kotak senarai ahli jawatankuasa KAMIL 2015 tersebut. SD2 mengatakan pada 5.5.2013, SD2 mengadakan pertemuan dengan perayu di Restoran Rose Seafood antara jam 8.00 malam hingga 9.30 malam untuk taklimat ringkas tentang tugas perayu sebagai jurufoto program KAMIL. Taklimat itu sepatutnya dihadiri oleh dua orang lagi jurufoto tetapi mereka tidak dapat hadir. SD2 mengatakan beliau ada membuat minit mesyuarat (D80C) yang SD2 sediakan selepas mesyuarat dengan perayu. Bagaimana pun SD2 mengatakan beliau tidak mencatitkan sebarang minit semasa bermesyuarat dengan perayu dan penyediaan minit hanya berdasarkan ingatan beliau. SD2 juga mengatakan terdapat buku rasmi program KAMIL 2015 (P79)(A) dikeluarkan tetapi nama SD2 tidak ada dalam buku rasmi tersebut yang SD2 mengatakan mungkin nama SD2 tercicir semasa buku rasmi tersebut dicetak. SD2 juga mengatakan pada sekitar jam 9.30 S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 malam sebelum mesyuarat SD2 dengan perayu tamat, seorang rakan perayu bernama Shafie (SD3) telah datang ke Restoran Rose Seafood tersebut dan Shafie mengajak perayu pergi memancing. SD2 kemudian beredar daripada restoran tersebut meninggalkan perayu dan Shafie. [40] Semasa pemeriksaan balas oleh Timbalan Pendakwa Raya (TPR), SD2 mengakui bahawa walau pun beliau mengetahui perayu ditangkap pada 6.5.2015 melalui akhbar Metro online berkaitan kejadian pembunuhan si mati, tetapi SD2 tidak pernah memaklumkan kepada pihak polis bahawa perayu ada bersama beliau pada malam 5.5.2015 tersebut. TPR mencabar SD2 bahawa keterangan SD2 tersebut cuma diada-adakan oleh SD2 untuk membantu perayu tetapi SD2 tidak bersetuju dengan pengataan oleh TPR tersebut. SD2 juga mengakui bahawa beliau tidak mengetahui tentang aktiviti perayu pada malam 5.5.2015 tersebut. Semasa pemeriksaan semula oleh peguamcara perayu, SD2 mengatakan beliau ada memberi rakaman percakapan kepada pihak polis setelah diminta hadir ke balai oleh pegawai polis bernama Manimaran pada sekitar tahun 2017 atau 2018 (setelah notis alibi bertarikh 7.8.2017 diberikan oleh perayu). [41] Muhammad Shafie bin Zul (SD3) berumur 28 tahun ialah seorang pembantu makmal di Sekolah Tinggi Agama (SMT) Kuala Kubu Bharu. SD3 mengatakan kenal perayu sebagai seorang rakan (perayu berumur 22 tahun). SD3 mendapat tahu perayu ditangkap pada 6.5.2015 berkaitan kes bunuh. SD3 mengatakan pada malam 5.5.2015, SD3 telah pergi berjumpa perayu di Restoran Rose Seafood, Taman Bukit Bujang selepas Isya’ untuk mengajak perayu pergi memancing. Ketika SD3 tiba terdapat seorang rakan perayu bernama Ustaz Nazri (SD2). SD3 mengatakan selepas Ustaz Nazri meninggalkan restoran tersebut, perayu dan SD3 S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 makan di restoran itu dan kemudiannya perayu memberitahu SD3 bahawa perayu ingin balik untuk mengambil peralatan memancing dan juga mengambil kereta. Pada jam 9.00 malam SD3 dan perayu dengan menaiki kereta perayu pergi ke tempat memancing di Empangan Pertak. SD3 mengatakan beliau dan perayu memancing hingga jam 1.00 pagi. SD3 mengatakan pada malam tersebut hanya SD3 dan perayu sahaja yang memancing di Empangan Pertak tersebut. Pada jam 1.30 pagi, SD3 dan perayu tiba semula di Restoran Rose Seafood dan SD3 turun daripada kereta perayu untuk mengambil motorsikal SD3 yang SD3 tinggalkan di restoran tersebut ketika pergi memancing dengan perayu dan SD3 pulang ke rumah. (SP11 semasa kes pendakwaan mengatakan Restoran Rose Seafood telah tiada lagi pada tahun 2017 dan oleh itu tidak dapat disiasat lanjut kecuali mengambil percakapan SD2 dan SD3 selepas notis alibi bertarikh 7.8.2017 diberikan oleh perayu). SD3 pada ketika memberi keterangan di mahkamah mengatakan bahawa Restoran Rose Seafood telah tiada lagi sejak tahun 2016 dan hanya tinggal tapak sahaja. [42] Semasa diperiksa balas oleh TPR, SD3 mengatakan perayu hanya seorang kenalan biasa sahaja dan SD3 tidak berkawan rapat dengan perayu. SD3 menafikan keterangan beliau hanya diada-adakan bertujuan untuk membantu perayu. [43] Kami juga memberi perhatian kepada nota prosiding bertarikh 9.8.2017 (Rekod Rayuan Jilid 2(1) muka surat 1). Peguamcara perayu pada pagi tersebut semasa perbicaraan terhadap perayu hendak dimulakan telah memberitahu Hakim bicara bahawa perayu telah menfailkan Notis Alibi pada pagi tersebut iaitu 9.8.2015. TPR dalam hujahan bagi pihak pendakwaan menghujahkan kelewatan perayu S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 menfailkan Notis Alibi yang hanya diberikan pada hari tarikh mula bicara di Mahkamah Tinggi telah menyebabkan pihak pendakwaan tidak dapat membuat siasatan yang rapi dalam menentukan kesahan alibi perayu kerana Restoran Rose Seafood telah tidak wujud lagi dan saksi-saksi alibi hanya dapat diambil rakaman percakapan selepas Notis Alibi bertarikh 7.8.2017 diberikan oleh perayu. Kami dapati seksyen 402A Kanun Tatacara Jenayah membenarkan pihak pembelaan memberikan Notis Alibi diberikan pada bila-bila masa sebelum perbicaraan bermula dan boleh juga diberikan semasa perbicaraan telah bermula tertakluk kepada syarat-syarat yang dinyatakan di bawah subseksyen (3) seksyen 402A tersebut yang memerlukan Notis Alibi memberikan butiran jelas tentang alibi dan saksi-saksi alibi untuk membolehkan siasatan dilakukan oleh pihak pendakwaan. Notis Alibi perayu dalam kes ini bertarikh 7.8.2017 yang diberikan pada hari mula bicara dapat dilihat di muka surat 242-244 Rekod Rayuan Jilid 4(2). Bagaimana pun Restoran Rose Seafood yang disebutkan dalam notis alibi tersebut sebagai tempat di mana perayu berada dari jam 7.45 malam hingga 9.45 malam telah tidak wujud lagi. Maka itu kami bersetuju dengan TPR bahawa pihak pendakwaan tidak boleh dipersalahkan sebagai tidak melakukan siasatan yang lengkap apabila tidak dapat menyiasat tentang keesahan operasi Restoran Rose Seafood tersebut dan perjumpaan perayu dengan SD2 dan SD3 di restoran tersebut. Hakim bicara dengan itu telah mengambil pendekatan yang betul dalam menimbang dan memberikan nilai berat keterangan alibi perayu serta saksi-saksi alibi perayu yang mana Hakim bicara mendapati sebagai terdapat kelompangan masa dan tidak meyakinkan untuk diterima sebagai telah menimbulkan keraguan yang munasabah terhadap kes pendakwaan. S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 [44] Kami telah juga membutirkan analisa dan dapatan Hakim bicara terhadap pembelaan alibi perayu seperti yang dinyatakan oleh kami di perenggan 27 hingga perenggan 32 alasan penghakiman kami di atas. [45] Dalam kes Duis Akim v Public Prosecutor [2013] 9 CLJ 692, Mahkamah Persekutuan telah menjelaskan tahap beban bukti pembelaan alibi seperti berikut: “[9] Now, the following legal principle on the defence of alibi are relevant in the present namely – (i) ’the defence of alibi must preclude the possibility that the accused could have been physically present at the place of the crime or its vicinity at or about the time of the commission’ (See: Regina v. Youssaf (1990) 50 A Crim R 1 at pp. 2-3); (ii) the correct ‘approach to adopted in regard to an alibi defence…is to consider the alibi in the light of the totality of the evidence and the court’s impression of the witnesses. If there are identifying witnesses, the court should be satisfied not only that they are honest, but also that the identification of the accused is reliable. The ultimate test, and there is only one test in criminal case, is whether the evidence establishes the guilt of the accused beyond reasonable doubt’. (See: Leve v. S (CA & A 163/12)[2013]ZAECGHC 5 (31 January 2013)(South Africa).(emphasis added); (iii) as such ‘it would be wrong to reason that if the evidence of the state witnesses, considered in isolation, is credible the alibi S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 must therefore be rejected. The correct approach is to consider the alibi in the light of all the evidence in the case and the court’s impression of the witnesses and from that totality to decide whether the alibi might reasonably be true’. (See: R v. Hlongwane 1959 (3) SA 337); (iv) “(O)nce the trial court accepted that the alibi evidence could not be rejected as false, it was not entitled to reject it on the basis that the prosecution had placed before it strong evidence linking the appellant to the offences. The acceptance of the prosecution’s evidence could not by itself alone, be a sufficient basis for rejecting the alibi evidence. Something more was required. The evidence must have been, when considered in the totality, of the nature that proved the alibi evidence to be false.” (See: S v. Liebenberg 2005 (2) SACR 355 (SCA). (emphasis added); (v) ‘(I)t is trite that once an accused person pleads an alibi he does not assume the burden to prove it true. The onus is on the prosecution to prove by evidence the alibi is false and to place the accused squarely at the scene of the crime’ (See: Mutachi Stephen v. Uganda (supra). The evidence of alibi need only raise a reasonable doubt that he committed the crime. (See: Lizotte v. The King, 1950 Can LII 48 (SCC), [1951] SCR 115); and S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 (vi) The alibi of an accused does not have to be corroborated by independent evidence in order to raise a defence (See: R v. Letoumeou [1994] BCJ No. 265 (QL)(CA), 61). [46] Kami meneliti pendekatan yang diambil oleh Hakim bicara dalam beban bukti terhadap tertuduh atas pembelaan alibi. Di perenggan 47 Alasan Penghakiman, Hakim bicara mengatakan seperti berikut: “47. Berdasarkan kepada keputusan kes-kes di atas untuk berjaya, OKT hanya perlu menimbulkan satu keraguan yang munasabah bahawa beliau bukanlah orang yang berada di tempat kejadian, dan kes-kes terdahulu memutuskan bahawa adalah tidak perlu keterangan membela dirinya disokong.” [47] Kami bersetuju dengan pendekatan Hakim bicara tersebut. Beban pembuktian atas perayu hanya pada tahap menimbulkan keraguan yang munasabah melalui pembelaan alibi perayu. Keterangan alibi perayu secara sendiri memadai tanpa perlu keterangan sokongan jika alibi tersebut meyakinkan sebagai telah menimbulkan keraguan ke atas kes pendakwaan. Undang-undang tidak memerlukan alibi disokong oleh keterangan sokongan yang bebas. Bagaimana pun dalam menerima atau menolak keterangan alibi perayu, Hakim bicara perlu menilai keterangan kes secara keseluruhan. Kami dapati ini telah dilaksanakan oleh Hakim bicara apabila Hakim bicara melakukan penilaian keterangan secara keseluruhan untuk melihat jika alibi perayu telah menimbulkan apa-apa keraguan yang munasabah terhadap kes pendakwaan. [48] Kami juga dapati Hakim bicara bukan sahaja menimbangkan keterangan perayu atas alibi perayu, tetapi juga menimbangkan S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 34 keterangan saksi-saksi alibi perayu, iaitu SD2 dan SD3. Pada perenggan 49 Alasan Penghakiman, Hakim bicara mengatakan seperti berikut: “49. Walaupun pembelaan alibi OKT telah disokong oleh saksi- saksi beliau, bagaimana pun, satu fakta yang harus diberikan pertimbangan oleh Mahkamah ini ialah bukan pada semua masa material saksi-saksinya berada bersama-sama OKT, SD2 dan SD3 tidak berada bersama-sama OKT semasa OKT balik untuk mengambil keretanya dan SD3 telah tidak lagi bersama-sama OKT selepas OKT meninggalkannya di Restoran Rose Seafood selepas mereka memancing.” [49] Kami berpendapat Hakim bicara tidak tersalah arah dalam membuat dapatan tersebut. Dapatan oleh Hakim bicara dibuat setelah menilai keseluruhan keterangan yang ada di hadapan beliau. Hakim bicara berhak untuk melihat keterangan dari sudut logik dan kemunasabahan dalam mencapai kesimpulan dan keputusan. Hakim bicara memutuskan pembelaan alibi perayu tidak berjaya menimbulkan keraguan yang munasabah terhadap kes pendakwaan setelah menimbangkan keseluruhan keterangan termasuk perlakuan perayu yang cuba menghapuskan bahan bukti yang relevan, tidakan perayu yang tidak membuat laporan polis dengan segera setelah melihat si mati mati dibunuh, perlakuan perayu yang tidak menghubungi keluarga si mati walau perayu tahu di mana rumah bapa si mati dan terdapatnya kehadiran air mani perayu pada tiga barang kes yang dipakai oleh si mati pada malam kejadian khususnya pada baju hitam ‘cardigan’ P58A. Kami dapati Hakim bicara tidak salah arahan apabila menerima semua keterangan perlakuan perayu tersebut sebagai keterangan yang relevan untuk maksud seksyen 8 Akta Keterangan 1950. Undang-undang juga tidak S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 memerlukan amaran (caution) dan kesukarelaan sebagai elemen wajib yang perlu wujud sebelum sesuatu pengataan atau keterangan boleh diterima di bawah seksyen 27 Akta Keterangan 1950 (Lihat kes-kes autoriti: Francis Anthonysamay v PP [2005] 3 MLJ 389; Krishna Rao & Anor v PP [2007] 4 CLJ 643; Chong Soon Koy v PP [1977] 2 MLJ 78 FC; PP v Hashim bin Hanafi [2002] 4 MLJ 175). Dalam kes ini, Hakim bicara tidak menggunapakai seksyen 27 tetapi memutuskan perlakuan perayu sebagai relevan untuk maksud seksyen 8 Akta Keterangan 1950. Kami berpendapat Hakim bicara tidak khilaf dalam pendekatan yang diputuskan oleh beliau itu untuk menerima keterangan berkaitan perlakuan perayu di bawah seksyen 8 sebagai relevan untuk dinilai dengan keseluruhan keterangan yang terdapat. Bagaimana pun, kami bersetuju dengan hujahan TPR dan kami berpendapat Hakim bicara sewajarnya juga menggunapakai seksyen 27 Akta Keterangan 1950 di mana kami berpendapat semua elemen berkaitan “admissibilities” bawah seksyen 27 telah dipatuhi oleh SP11 dan SP15. SP11 telah mencatitkan maklumat yang diberikan oleh perayu atas sekeping kertas sebagai maklumat itu diberikan oleh perayu dan kemudian membuat laporan polis atas maklumat tersebut dan laporan polis atas penemuan beg hitam serta sepasang sarung tangan dan sepasang kasut untuk menjadi bukti keterangan pendakwaan. Kepatuhan yang sama juga dilakukan oleh SP15 dengan membuat catitan maklumat perayu atas sekeping kertas sebaik maklumat itu diberikan oleh perayu dan laporan polis atas maklumat tersebut dan penemuan barang kes iaitu kunci kereta dan pisau hasil daripada maklumat dan tunjuk arah perayu (P84, P85 dan P86). Semua barang kes yang dijumpai dan dirampas oleh SP11 adalah di lokasi yang berbeza dan tidak mudah dijumpai tanpa maklumat dan tunjuk arah oleh perayu. Begitu juga kunci kereta si mati ditemui dan dirampas oleh SP15 hasil daripada maklumat dan tunjuk arah oleh perayu daripada S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 36 lokasi yang tidak mudah dijumpai tanpa maklumat dan tunjuk arah oleh perayu. Kami telah meneliti maklumat-maklumat yang dimaksudkan tersebut dan kami dapati maklumat-maklumat tersebut bukan satu pengakuan bersalah oleh perayu atas pembunuhan si mati oleh perayu akan tetapi lebih merupakan maklumat atau pengataan bersifat fakta di mana barang-barang kes yang ada kaitan dengan si mati telah dibuang oleh perayu pada malam 5.5.2015 tersebut. Maklumat tersebut terbukti benar dan tepat apabila barang kes ditemui dengan dipandu arah oleh perayu ke lokasi atau tempat barang kes tersebut dibuang olehnya. Malahan untuk penemuan beg plastik hitam yang mengandungi dua telefon bimbit dan dokumen-dokumen milik si mati termasuk kad pengenalan dan lesen memandu si mati, SP11 perlu mendapatkan khidmat pasukan bomba untuk dapat SP11 dan pasukan polis turun ke dalam gaung sedalam 65 meter di Jalan Sungai Tua untuk mengambil beg plastik hitam tersebut. [50] Kesimpulannya kami mendapati Hakim bicara tidak meletakkan tahap beban yang tinggi untuk dibuktikan oleh perayu dalam pembelaan alibi perayu. Oleh itu kami dapati hujahan peguamcara perayu dalam isu beban bukti alibi tersebut tidak mempunyai merit. (b) Hakim bicara khilaf dari segi fakta dan undang-undang apabila gagal memutuskan bahawa terdapat kesenjangan atau gap dalam pengendalian barang kes yang terdapat kehadiran air mani perayu [51] Kami menimbangkan pula alasan rayuan kedua yang dibangkitkan oleh peguamcara terpelajar bagi pihak perayu bahawa Hakim bicara gagal memutuskan bahawa terdapat kesenjangan atau gap dalam pengendalian barang kes yang terdapat kehadiran air mani perayu. S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 37 Peguamcara menghujahkan rantaian keterangan berkaitan pakaian si mati (P55A, P58A dan P60A) yang dikumpulkan oleh SP12 dan diberikan kepada pembantu SP12 untuk ditandakan semasa menjalankan bedah siasat adalah keterangan yang tidak lengkap kerana tidak terdapat keterangan oleh pihak pendakwaan tentang simpanan selamat pakaian si mati setelah dikumpulkan oleh SP12 dan tiada keterangan bila pakaian tersebut diserahkan kepada SP15 sebelum SP15 menyerahkan pakaian si mati kepada SP13 (ahli kimia). Peguam terpelajar merujuk kepada kes PP v Ahmad Rizal Jumar [2017] 1 LNS 1069 untuk menyokong hujahan beliau bahawa jika terdapat kesenjangan atau gap dalam pengendalian barang kes maka mahkamah wajar menolak keterangan yang berkaitan barang kes tersebut. Kami mengambil maklum bahawa TPR bersetuju bahawa tiada keterangan dikemukakan oleh pihak pendakwaan dengan memanggil pembantu SP12 untuk memberitahu di mana barang kes disimpan dan bila diserahkan kepada SP15 sebelum SP15 menyerahkan kepada SP13 untuk analisa DNA oleh SP13. Peguamcara juga menghujahkan oleh kerana tiada keterangan oleh pihak pendakwaan mengenai bila dan di mana contoh darah perayu diambil, maka keterangan tentang kehadiran air mani perayu pada ‘cardigan’, ‘headband’ dan ‘corset’ (P58A, P55A dan P60A) hendaklah ditolak oleh Hakim bicara daripada diterima masuk sebagai keterangan pendakwaan. [52] Hakim bicara menimbangkan kehadiran air mani perayu pada P55A, P58A dan P60A dan menerima keterangan tersebut sebagai memerlukan penjelasan oleh perayu. [53] Apakah keterangan dan penjelasan perayu berkaitan kehadiran air mani perayu atas P55A, P58A dan P60A tersebut? Perayu mengakui beliau dan si mati ada melakukan hubungan seks beberapa kali sejak S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 38 mereka berkawan. Perayu mengatakan pada malam 5.5.2015 beliau dan si mati tidak ada berjumpa dan tidak melakukan hubungan seks dengan si mati. Perayu mengatakan beliau hanya menjumpai si mati telah mati pada jam lebih kurang 1.00 pagi sekembalinya perayu daripada tempat memancing. Mengenai kehadiran air mani perayu pada “headband” si mati, perayu mengatakan pada 5-6 hari sebelum kejadian kematian si mati, perayu dan si mati ada berjumpa pada satu malam dan si mati telah menghisap kemaluan perayu dan air mani perayu terpancut ke muka dan “headband” yang dipakai oleh si mati. Perayu mengatakan setiap kali berjumpa si mati, si mati akan memakai “headband” yang sama dan kemungkinan si mati tidak membasuh “headband” tersebut dan dengan itu air mani perayu masih kekal terdapat pada “headband” tersebut yang perayu katakan terkena air mani perayu 5 atau 6 hari sebelum tarikh kejadian kematian si mati (lihat muka surat 381 baris 1-10 Rekod Rayuan Jilid 2(5)). [54] Keterangan dan penjelasan perayu hanya berkaitan air mani perayu yang terdapat pada “headband” (P55A) si mati. Bagaimana pun perayu tidak menjelaskan bagaimana air mani perayu hadir pada baju hitam “cardigan” (P58A) yang di pakai oleh si mati pada malam kejadian. Bagaimana pun, keterangan SP13 (ahli kimia) mengatakan bahawa SP13 tidak dapat mengesahkan jangka hayat air mani tersebut sama ada air mani tersebut baru atau lama kerana ia bergantung kepada kualiti bagaimana air mani itu di “preserved”. Tetapi SP13 mengesahkan air mani yang hadiir pada baju hitam “Cardigan” (P58A) adalah air mani perayu. Puan TPR dalam hujahannya mengatakan pihak pendakwaan tidak bergantung kepada kehadiran air mani perayu sebagai satu-satunya bukti kukuh kes pendakwaan terhadap perayu. TPR menghujahkan terdapat keterangan-keterangan mengikut keadaan (circumstantial S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 39 evidence) lain yang kukuh terhadap perayu. Kami bersetuju dengan hujahan oleh TPR tersebut bahawa walau pun keterangan mengenai kehadiran air mani perayu dikecualikan daripada pertimbangan, tetapi keterangan-keterangan mengikut keadaan (circumstantial evidence) yang ada terhadap perayu adalah kukuh untuk dibuat kesimpulan. Kami akan huraikan lebih lanjut dalam isu ini pada alasan ketiga rayuan di bawah ini. Kesimpulannya, kami berpendapat isu kehadiran air mani perayu adalah keterangan yang tidak konklusif untuk memihak kepada pihak pendakwaan mahu pun pihak perayu. Bagaimana pun seperti yang kami rujuk tentang penjelasan perayu bagaimana air mani perayu hadir pada “headband” si mati, maka bukanlah suatu yang “accidental” atau suatu yang mustahil untuk air mani perayu terdapat pada pakaian si mati. Cuma persoalan yang yang tidak dapat dipastikan jawapannya ialah bilakah air mani perayu itu hadir pada “cardigan” (P58A) tersebut? Oleh itu kami tidak mengambil keterangan mengenai air mani perayu dalam pertimbangan kami terhadap sabitan perayu. Persoalan yang lebih penting ialah adakah perayu ada bersama si mati semasa si mati dibunuh dan perayu yang melakukan pembunuhan itu. (c) Hakim bicara khilaf dari segi fakta dan undang-undang dalam mensabitkan perayu terhadap pertuduhan sedangkan keterangan mengikut keadaan yang terdapat tidak cukup untuk mensabitkan perayu dengan pertuduhan [55] Peguamcara perayu menghujahkan bahawa keterangan mengikut keadaan yang dikemukakan oleh pihak pendakwaan jauh daripada mencukupi untuk mensabitkan perayu atas pertuduhan. Peguamcara menghujahkan pihak pendakwaan tidak mempunyai saksi mata bahawa perayu yang telah menikam si mati. Peguamcara juga menghujahkan S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 40 tiada apa-apa kesan darah dijumpai pada pakaian perayu yang dirampas oleh SP11. Peguamcara juga menghujahkan SP12 tidak dapat mengatakan pisau P34A telah digunakan untuk menikam si mati. Peguamcara juga menghujahkan tiada cap jari perayu dikesan pada barang kes dan kereta si mati. Oleh itu peguamcara menghujahkan Hakim bicara tersalah arah yang menjadi satu salaharahan yang serius dalam memutuskan keterangan mengikut keadaan yang terdapat atas perayu adalah kukuh apabila mensabitkan perayu terhadap pertuduhan. [56] Kami meneliti alasan penghakiman Hakim bicara dalam isu “circumstantial evidence”. Pada perenggan 34 Alasan Penghakiman, Hakim bicara mengatakan seperti berikut: “34. Melihat kepada keseluruhan kes ini jelas pihak pendakwaan hanya bergantung kepada “circumstantial evidence” untuk membuktikan kes prima facie terhadap OKT. Undang-undang mengenai “circumstantial evidence” adalah dijelaskan melalui kes Sunny Ang v Public Prosecutor [1966] 2 MLJ 195, Kartar Singh v PP [1952] MLJ 85, Karam Singh v PP [1967] 2 MLJ 25 dan Chang Kim Siong v PP [1968] 1 MLJ 36. 35. Melalui kes Tulshiram v State of Maharashta [1984] Cr. LJ 209: “The law on circumstantial evidence is clear and we need not restate it. Suffice it to say that all the circumstances established must unerringly point to the guilt of the accused and that they must be consistent and consistent with the guilt and inconsistent with the innocence of the accused. What is important is the cumulative effect of all the circumstantial.” S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 41 [57] Hakim bicara seterusnya pada perenggan 67 Alasan Penghakiman beliau seperti berikut: “67. Seterusnya jika keterangan-keterangan di dalam kes ini dilihat secara keseluruhannya jelas membawa satu kesimpulan yang OKT adalah bersalah sepertimana pertuduhan. Rujuk kepada Mallal’s Digest Vo. II 3rd Edition, para 4541, muka surat 621 berbunyi- “Circumstantial evidence should be such that, when you look at all surrounding circumstances, you find such series under-signed, unexpected, coincidences that, as a reasonable person, you find your judgment is compelled to one conclusion…” Rujuk kes Karam Singh vs PP [1967] 2 MLJ 25, Kartar Singh vs PP [1952] MLJ 85.” [58] Kami dapati hakim bicara betul dalam menggunapakai panduan dan prinsip undang-undang berkaitan “circumstantial evidence”. Pembelaan alibi perayu menjadi runtuh (collapsed) oleh perlakuan perayu sendiri. Hakim bicara memutuskan perlakuan perayu adalah relevan di bawah seksyen 8 Akta Keterangan 1950 untuk pertimbangan atas kaitan perayu dengan kematian si mati. Hakim bicara setelah menilai keterangan pembelaan perayu dan keseluruhan keteranga mendapati perlakuan perayu cuba menghapuskan barang bukti berkaitan pembunuhan dan kematian si mati adalah perbuatan seorang yang bersalah. Perayu berusia 22 tahun dan bekerja sebagai guru ugama di Sekolah Agama S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 42 Kuala Kubu Bharu. Oleh itu perayu bolehlah dikatakan seorang yang terpelajar. Pun begitu, perlakuan perayu sangat tidak logik dan menusabah untuk diterima. Pada jam lebih kurang 1.00 pagi perayu mengatakan melihat kereta si mati di sebelah Agama Kuala Kubu Bharu. Perayu pergi ke kereta si mati dan dapati si mati telah mati dibunuh dengan darah di tubuh si mati. Perayu tidak berusaha untuk terus membuat panggilan kecemasan dengan memanggil polis atau membuat laporan polis. Perayu tidak berusaha untuk pergi ke rumah SP3 untuk memberitahu SP3 atau ahli keluarga si mati tentang kejadian yang menimpa si mati. Sebaliknya perayu mengumpul barangan peribadi si mati termasuk kad pengenalan dan lesen memandu si mati dan memasukkannnya ke dalam satu beg platik hitam dan membuangkan bungkusan beg plastik hitam itu ke dalam gaung sedalam 65 meter di bawah jambatan di Jalan Sungai Tua. Perayu juga membuang sarung tangan yang terdapat darah si mati ke dalam semak berhampiran tempat yang sama beg hitam ditemui oleh SP11. Perayu juga membuang pisau ke dalam semak di tepi jalan yang kemudiannya ditemui oleh SP11. Perayu juga membuang kedua-dua belah kasut yang dipakainya di dua tempat yang berasingan. Perayu juga membuang kunci kereta si mati ke dalam semak berhampiran Sekolah Agama Kuala Kubu Bharu. Semua barang kes ini ini adalah relevan dengan fakta kematian si mati dan ditemui serta di rampas oleh SP11 dan SP15 mesiang-masingnya hasil daripada maklumat dan tunjuk arah perayu. Melihat kepada lokasi barangan tersebut ditemui, lokasi tersebut bukanlah terdedah dan hanya orang yang mempunyai pengetahuan khusus sahaja yang boleh dengan tepat mendedahkan dan menujukkan lokasi tersebut. Undang-undang juga tidak mewajibkan orang yang ditangkap untuk memberikan pernyataan kepada pegawai polis yang berkelayakan menerima pernyataan atau maklumat daripada orang yang ditangkap tersebut. Jika S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 43 perayu sejak dari awal mempunyai alibi dan versi yang kukuh tentang di mana perayu berada pada malam tersebut, perayu sudah tentu dan munasabahnya mendedahkan versi alibi beliau itu apabila memberi percakapan kepada pegawai polis semasa siasatan kes sebaik perayu ditangkap pada pagi 6.5.2015. Pihak pembelaan tidak pernah mengajukan apa-apa soalan baik kepada SP11 mahu pun kepada SP15 bahawa perayu pernah memberikan versi di mana keberadaan perayu semasa kejadian kematian si mati serta saksi alibi perayu terhadap kejadian tersebut. Jelasnya, perayu mempunyai banyak masa untuk mengendalikan mayat si mati, mengumpul barangan peribadi si mati dan membuang barang bukti di merata-rata tempat pada malam kejadian tersebut sebelum balik ke rumahnya dan mencuci diri serta pakaian sebelum tidur. Atas semua keterangan yang terdapat, kami bersetuju bahawa keterangan terhadap perayu adalah “overwhelming” untuk Hakim bicara membuat inferens dan satu-satunya kesimpulan yang boleh dibuat berdasarkan kepada keterangan yang ada ialah simati dibunuh oleh perayu. Undang-undang adalah mantap bahawa motif bukanlah suatu elemen yang wajib dibuktikan untuk kesalahan bunuh. Kami dapati Hakim bicara juga tidak tersalah arah dalam elemen-elemen yang perlu dibuktikan oleh pihak pendakwaan untuk pertuduhan di bawah seksyen 302 Kanun Keseksaan. Kesimpulan [59] Mahkamah pada peringkat rayuan akan menahan diri daripada bercampur tangan dalam dapatan fakta oleh Hakim bicara dan penilaian Hakim bicara atas kredibiliti saksi-saksi yang mana mahkamah ini tidak mempunyai keistimewaan sedemikian. Kami dapati tiada terdapat apa- S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 44 apa alasan untuk kami bercampur tangan terhadap jumpaan dan keputusan Hakim bicara. Sabitan terhadap perayu adalah selamat. [60] Rayuan oleh perayu dengan itu ditolak. Sabitan dan hukuman oleh Mahkamah Tinggi dikekalkan. t.t. (YAACOB HAJI MD SAM) Hakim Mahkamah Rayuan Malaysia Bertarikh 9 November 2023 S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal 45 Peguamcara bagi pihak Perayu : Amirul Ridzuan Hanif Ahmad Safuan Hazalan Hanif & Co. Peguambela & Peguamcara No. 33-3 Floor, Jalan Medan Tuanku 50300 Kuala Lumpur Peguamcara bagi pihak Responden/Pendakwa Raya: TPR Nahra binti Dollah Bahagian Perbicaraan dan Rayuan Jabatan Peguam Negara Aras 5, No. 45, Lot 4G7 Presint 4, Persiaran Perdana 62100 Putrajaya S/N Jg/Hf6a/UemL5fDVfwgUA **Note : Serial number will be used to verify the originality of this document via eFILING portal

Tika 2.6.0

BA-21NCvC-29-03/2021

PLAINTIF Kerajaan Malaysia DEFENDAN 1. ) PEMBINAAN KOTA LAKSAMANA (MELAKA) SDN. BHD. 2. ) MAT SHAH BIN SAPUAN 3. ) MOHD FAIZAL BIN MAT@MATSHAH

Civil Procedure: Summary judgment – Tax Recovery by Government of Malaysia – Applicability of the normal rule of triable issue – Whether a proper case for summary determination – Rules of Court 2012, Order 14.Revenue Law: Income Tax – Whether tax due, payable and recoverable – Defences available to a taxpayer seeking to challenge a summary claim – Whether court could hear merits of assessment – Income Tax Act 1967, ss, 90(3), 99, 103(2) and (5), 106(1) and (3), 145 and 152.

16/11/2023

YA Dr Choong Yeow Choy

https://efs.kehakiman.gov.my/EFSWeb/DocDownloader.aspx?DocumentID=206e443c-5ec6-4d19-9e3f-d0bbfaf3da49&Inline=true

1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA (BAHAGIAN SIVIL) GUAMAN SIVIL NO: BA-21NCVC-29-03/2021 ANTARA KERAJAAN MALAYSIA … PLAINTIF DAN PEMBINAAN KOTA LAKSAMANA (MELAKA) SDN BHD [197801003858)(40873-T)] … DEFENDAN PERTAMA (1) MAT SHAH BIN SAPUAN (NO. K/P: 470406-10-5707) … DEFENDAN KEDUA (2) MOHD FAIZAL BIN MAT@MAT SHAH (NO. K/P: 740421-14-5835) … DEFENDAN KETIGA (3) JUDGMENT Introduction [1] It has been said that “the hardest thing in the world to understand is the income tax”. The Defendants in the present action will probably add that the income tax sum the Plaintiff is seeking to recover from them is also the most unjust thing in the world. 16/11/2023 12:46:01 BA-21NCvC-29-03/2021 Kand. 32 S/N PERuIMZeGU2eP9C7vPaSQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 [2] In the matter before this Court, the Defendants have to confront the reality of not just having to resist a claim for recovery of tax by the Government of Malaysia for a sum of RM56,337,780.27 but with a claim for summary judgment to boot. [3] Many taxpayers have found themselves in the same predicament as the Defendants. The Prevailing Issues [4] The twin vital issues for consideration in this case are: (a) whether the Government of Malaysia is entitled to summary judgment for the sum that it is seeking to recover from the Defendants; and (b) whether there are defences that the Defendants may rely on to challenge the claim by the Plaintiff. The Case for the Plaintiff [5] The case for the Plaintiff is simply that it is entitled under the law to claim, as in this case, for income tax assessed for the Years of Assessment 2007, 2009, 2010, 2011, 2013 and 2016 including increases under the Income Tax Act, 1967. [6] The position of the Plaintiff is that not only is it entitled to claim for the amount of tax claimed, it is entitled to summary judgment, that is, without a plenary trial of the action. S/N PERuIMZeGU2eP9C7vPaSQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 [7] The Plaintiff is relying on the various provisions of the Income Tax Act 1967. [8] The starting point for the Plaintiff is section 90(3) of the Income Tax Act 1967. It provides as follows: (3) Where a person for a year of assessment has not furnished a return in accordance with section 77 or 77A, the Director General may according to the best of his judgment determine the amount of the chargeable income of that person for that year and make an assessment accordingly: Provided that the making of an assessment in respect of a person under this subsection shall not affect any liability otherwise incurred by that person by reason of his failure to deliver the return. [9] It was contended on behalf of the Plaintiff that assessments for Year of Assessments 2007, 2009, 2010, 2011, 2013 and 2016 have been made pursuant to section 90(3) of the Income Tax Act 1967. [10] The Plaintiff further averred that the relevant Notice of Assessment has been sent to the First Defendant in accordance with the provisions of section 145(1) and (2)(a) of the Income Tax Act 1967. Section 145, which govern the Service of Notices, provides as follows: 145. ( 1) Subject to any express provision of this Act, for the purposes of this Act notices may be served personally or by ordinary or registered post. (2) A notice relating to tax which is sent by ordinary or registered post shall be deemed to have been served on the person (including a partnership) to whom it is addressed on the day succeeding the S/N PERuIMZeGU2eP9C7vPaSQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 day on which the notice would have been received in the ordinary course of post if it is addressed — (a) in the case of a company, partnership or body of persons having a registered office in Malaysia — (i) to that registered office; (ii) to its last known address; or (iii) to any person authorized by it to accept service of process; (b) in the case of a company, partnership or body of persons not having a registered office in Malaysia — (i) to any registered office of the company, partnership or body (wherever that office may be situated); (ii) to the principal place of business or other activity of the company, partnership or body (wherever that place may be situated); or (iii) to any individual authorized (by or under the law of any place where the company, partnership or body is incorporated, registered or established) to accept service of process; and (c) in the case of an individual, to his last known address. [11] Accordingly, following service of the Notices of Assessment, it is the Plaintiff’s assertion that the tax as assessed became due and payable by the Defendants, regardless of any appeal from the Defendants against the assessments. On this point, the Plaintiff relied on the provisions of sections 103(2), 103(5) and 107C(10) of the Income Tax Act 1967. S/N PERuIMZeGU2eP9C7vPaSQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 [12] For brevity, the relevant provisions relied on by the Plaintiff read as follows: 103. (1) … (2) Where an assessment is made under section 90(3), 91, 92 or 96A, or where an assessment is increased under section 101(2), the tax payable under the assessment or increased assessment shall, on the service of the notice of assessment or composite assessment or increased assessment, as the case may be, be due and payable on the person assessed at the place specified in that notice whether or not that person appeals against the assessment or increased assessment. … (5) Subject to subsection (7), where any tax due and payable under subsection (2) has not been paid within thirty days after the service of the notice, so much of the tax as is unpaid upon the expiration of that period shall without any further notice being served be increased by a sum equal to ten per cent of the tax so unpaid, and that sum shall be recoverable as if it were tax due and payable under this Act. Estimate of tax payable and payment by instalments for companies 107C. (1) … … S/N PERuIMZeGU2eP9C7vPaSQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 (10) Where the tax payable under an assessment for a year of assessment exceeds the revised estimate under subsection (7) or deemed revised estimate under subsection (8), whichever is later, or if no such revised estimate is furnished or there is no such deemed revised estimate, the estimate of tax payable for that year of assessment, by an amount of more than thirty per cent of the tax payable under the assessment, then, without any further notice being served, the difference between that amount and thirty per cent of the tax payable under the assessment shall be increased by a sum equal to ten per cent of the amount of that difference, and that sum shall be recoverable as if it were tax due and payable under this Act. [13] Crucially, the Plaintiff alluded to section 106(1) of the Income Tax Act 1967, which in no uncertain terms states that “Tax due and payable may be recovered by the Government by civil proceedings as a debt due to the Government.”. [14] Further in section 106(3) of the same Act, it is expressly provided that: (3) In any proceedings under this section the court shall not entertain any plea that the amount of tax sought to be recovered is excessive, incorrectly assessed, under appeal or incorrectly increased under subsection 103(3), (5) or (7). [15] The above, according to the Plaintiff, is the position of the law vis-à- vis the rights accorded to the Government of Malaysia. S/N PERuIMZeGU2eP9C7vPaSQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 [16] This is not to say that the Defendants are left without any recourse. As conceded by the Plaintiff, the remedy available to the Defendant is under section 99 of the Income Tax Act 1967, where an appeal may be made to the Special Commissioner of Income Tax. Section 99 plainly preserves the right of appeal of “a person aggrieved by an assessment made in respect of him”. The Case for the Defendants [17] In response to the Plaintiff’s submissions, the Defendants argued, inter alia, that the amount taxable for Years of Assessment 2007, 2009, 2010, 2011, 2013 and 2016 based on Borang C that the First Defendant had submitted was RM0.00. [18] The Defendants further contended that they had filed Notices of Appeal pursuant to section 152 of the Income Tax Act 1967 (in Borang Q) on 16 October, 2020 for Years of Assessment 2007, 2009, 2010, 2011 and 2013 and the Notice of Appeal on 23 September, 2020 for Year of Assessment 2016 and are awaiting response from the Plaintiff. In addition, the Defendants submitted that are able and willing to furnish evidence if required. [19] Therefore, the Defendants’ position is that the Plaintiff’s assessment (in Borang J) is inaccurate and without basis and the Defendants should be permitted to prove that their assessments are correct (and not be denied that right). S/N PERuIMZeGU2eP9C7vPaSQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 The Law and the Legal Principles [20] As the Plaintiff has invoked the summary procedure under Order 14 of the Rules of Court 2012, a question for determination is whether the conventional rule which requires a defendant resisting an application for summary judgment to raise “an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial” as provided in Order 14 rule 3 of the Rules of Court 2012 has any application pursuant to a claim made under the Income Tax Act 1967. [21] In Mohd Najib Hj Abd Razak v Government of Malaysia [2023] AMEJ 2078; [2023] 1 LNS 2063; [2023] MLJU 2283; [2024] 1 MLRA 69, the Federal Court had considered the following three questions of law: [18] … (c) Question 3 Whether, by reason of Sections 103 and 106(3) of the Income Tax Act 1967, this Court is wholly prevented from considering whether or not there are triable issues and/or some other reason warranting a trial (within the meaning of Order 14 Rule 1 and Order 14 Rule 3 of the Rules of Court 2012 ), before deciding whether or not to give judgment in favour of the Plaintiff, despite the fundamental liberties, rights and powers enshrined in, inter alia, Articles 5, 8 and 121 of the Federal Constitution. … (e) Question 5 S/N PERuIMZeGU2eP9C7vPaSQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 Whether Order 14 Rule 3 of the Rules of Court 2012, which provides that a Summary Judgment application may be dismissed if a Defendant can show "some other reason" for a trial to be held, applies in civil recovery proceedings in tax matters. (f) Question 6 Whether in instances of manifest and obvious errors in calculation of a tax assessment, a court is entitled by virtue of its inherent and judicial powers to consider a Defendant's defence of merit to dismiss or set aside an application for Summary Judgment by a Plaintiff and order full trial on the matter. [22] As noted by the Federal Court, “Questions 3, 5 and 6 all of which deal with the workings of summary judgment in the context of section 106 ITA” (see para [19]). [23] The workings of summary judgment in the context of section 106 of the Income Tax Act 1967 were adeptly articulated by Nallini Pathmanathan FCJ as follows: [149] The ITA has a specific series of statutory provisions for the collection and recovery of the tax assessed to be due by the DGIR. These provisions are contained, as stated above, under sections 103 - 110 of Part VII of the ITA entitled 'Collection and Recovery of Tax'. It is not in dispute that this jurisdiction, like many others, operates on a 'Pay First, dispute later' design of tax imposition as established by Parliament under the ITA. S/N PERuIMZeGU2eP9C7vPaSQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 [150] It is noteworthy that the questions posed by the Appellants relate solely to Part VII on recovery and collection. These questions focus on the rules of civil procedure relating to the recovery of debts in general, rather than the recovery of tax imposed under the specific provisions of the ITA read as a whole. [151] There is a presumption made, both by the Inland Revenue and the Appellants that the only means of enforcement available is under Order 14 of the Rules of Court 2012. However, Order 14 envisages the Court undertaking a final determination as to whether an amount is payable or due. This means that the Court considers and ascertains whether a debt exists. [152] But under the ITA, sections 103 and 106 specify statutorily, for purposes of collection and recovery only, that upon assessment, the sum assessed is due and payable upon the lapse of a specified period of time. It becomes a statutory debt or a debt created by statute. [153] Section 103(1) provides: "Except as provided in sub- section (2) tax payable under an assessment for a year of assessment shall be due and payable on the due date whether or not that person appeals against the assessment." [154] The section provides for two separate matters: (a) That by statute the sum becomes due and payable on the due date; (b) That notwithstanding the taxpayer's right of appeal, the sum becomes due and payable. S/N PERuIMZeGU2eP9C7vPaSQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 [155] In other words, while the process of appeal is pending the tax becomes due, putting into effect the 'Pay first, dispute later' system that defers the dispute but requires immediate payment. This is an essential aspect of expeditious and efficient collection of tax which is required to enable the nation to function effectively. Therefore, notwithstanding the taxpayer's right to challenge the tax assessed through the SCIT and subsequently the hierarchy of the courts, payment is not deferred. Any seeming 'inequity' is met by the guaranteed right of repayment under the Act. [156] The deferral of the challenge or dispute as to the tax assessed is further borne out by section 103B which provides: 'The institution of any proceedings under any other written law against the Government or the Director General shall not relieve any person from liability for the payment of any tax, debt or other sum for which he is or may be liable to pay under this Part.' [157] The Hansard in relation to section 103B states that the Government aims to ensure fair treatment between those who pay their taxes on time and those who do not. The latter group while seeking to challenge the tax assessed, are nonetheless required to make payment first while the challenge is deferred, because it would be unfair to those who pay their taxes on time if the latter category of taxpayers were accorded a longer time to meet their tax responsibilities simply by reason of their challenge (see: Penyata Rasmi Parlimen, Dewan Rakyat, (Parliamen Keempat Belas, Penggal Ketiga, Mesyuarat Ketiga, 16 December 2020), Vol. 54, at 26). [158] As stated earlier, the tax assessed is, by way of statute, a debt due from the taxpayer to the Government. The section statutorily deems S/N PERuIMZeGU2eP9C7vPaSQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 the sum assessed to amount to a debt recoverable in civil proceedings. The purpose, again is to facilitate recovery of the sum assessed. [159] And to facilitate recovery section 106(3) limits the type of challenge that can be made at this juncture, i.e. temporarily. The right to raise those challenges and have them adjudicated upon is neither ousted or prohibited, as the ITA provides for such challenges to be taken vide the prescribed mode of appeal under Part V. [160] What this all means in relation to recovery is that the ITA does not envisage a full-blown ventilation of all possible challenges to be determined at this stage of the tax process. It serves to ensure timely recovery and collection of tax due, while deferring the challenge to a later date. And this is where the utilisation of Order 14 of the Rules of Court 2012 (ROC 2012) gives rise to confusion. [161] Order 14 provides a summary basis for the collection of a debt in dispute. It provides a comprehensive mode of shortening the full litigation procedure by allowing, in suitable cases, for matters to be adjudicated upon fully, without the necessity for a full trial and witnesses. If the defendant to the summary judgment application however raises a 'triable' issue the matter then proceeds to trial. Whether judgment is granted summarily or judgment is granted after a full trial, the full merits and rights of the parties are litigated and the judgment handed down, is final in nature. [162] If a tax recovery 'debt' as statutorily provided for under section 106 is subjected to the procedure under Order 14 ROC 2012, then the entire purpose and object of the ITA, which provides for a deferral of the full dispute to a later date under the adjudicatory process prescribed under the Act, is not met. S/N PERuIMZeGU2eP9C7vPaSQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 [163] Even where there is no 'triable issue' found, it must be remembered that the character and effect of the judgment granted under Order 14 is final. However, under sections 103 and 106 the nature of the relief sought for purposes of recovery is plainly interim in character. [164] The use of the Order 14 procedure gives rise to a situation where, if the recovery process is found to give rise to 'triable issues', it will result in a full-blown trial which examines the veracity of the statutory debt under section 106. Bearing in mind that the section provides for this statutory debt to be due and owing for the purposes of recovery only, and not with finality, the use of a summary process which seeks to allow for a full determination of whether the sum is due and payable, is not ideal given the purpose and object of the ITA. [165] Once the statutory section 106 debt is subject to a full-blown trial, there cannot be another or second attempt at litigation under section 99(1) ITA as that would give rise to res judicata and/or issue estoppel. Therefore the entire purport and effect of the ITA would be thwarted by a full trial under the Order 14 civil procedure under the Rules of Court 2012. This is in accord with the older case-law which stipulates that such defences are to be remitted to the equivalent of the then SCIT and not considered by the Courts. To that extent there was appreciation of the fact that judgment under section 106 ITA was for purposes of ensuring payment of taxes first while disputes were adjudicated later. [166] This then warrants the question whether Order 14 is indeed the ideal mode to adopt in the course of recovery proceedings under section 106 ITA. It would seem from a perusal and construction of the Act in toto, that the procedure set out in section 106 ITA itself provides sufficient basis for recovery to be initiated in the civil courts by way of originating summons. The Court is then able to ascertain whether: S/N PERuIMZeGU2eP9C7vPaSQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 (a) An assessment has in fact been made in the form prescribed under the Act; (b) Whether the tax assessed is due as the relevant time accorded for payment has lapsed; (c) Whether the DGIR has accorded an exemption or provision for payment by instalments or reached some other agreement with the taxpayer which would warrant the Court refusing to grant judgment. [167] This means that section 106 ITA is given its full effect for the purpose of recovery while simultaneously allowing the taxpayer to proceed with his challenge vide section 99(1) of the ITA. [168] The ITA allows for full judicial intervention and adjudication vide Part VI. Additionally, from a constitutional viewpoint, the right of judicial review, as well as an entitlement to a stay premised on the exercise of judicial discretion, remains. [169] To reiterate, the enforcement provisions in section 103 and 106 are themselves premised on the exercise of judicial power, so it cannot be said that judicial power is in any way ousted. There is merely a temporary restriction of the taxpayer's rights of challenge, which are deferred while allowing for payment first. The Courts' powers remain unaffected. So when section 106(3) provides that the Court shall not consider certain defences relating solely to the tax assessed, it is the taxpayer's right to raise these issues at that juncture that is deferred, NOT curtailed. The Court's powers remain untouched as explained above. S/N PERuIMZeGU2eP9C7vPaSQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 [170] It is worth reiterating paragraph 38 of Capstone Pty Ltd (supra) where Binns Ward J stated: "Once it is accepted that the filing of a statement in terms of section 91(1)(b) is nothing more than an enforcement mechanism, as distinct from a means of determining liability, there is no basis for distinguishing it from any of the other recovery mechanisms... ... It seems to me that the learned judge went awry in Mokoena by apparently regarding the filing of a statement in terms of s. 91(1)(b) as having the rights-determining character of a judicially delivered judgment. It plainly does not..." [171] In like manner the judgment obtained under section 106 using the summary judgment procedure, does not have a rights-determining or liability-determining character, as it merely allows for recovery first for the purposes of enforcement or execution. It serves to give effect to the 'Pay first, dispute later' scheme in the ITA. [172] Even if a summary judgment procedure is adopted, the curtailing of the defences available as provided for in section 106(3) ITA and arguably, section 103(1) ITA and 103B ITA, means that the issues there remain unavailable for adjudication by the Court. This is because those matters would still comprise the subject matter of any appeal under section 99(1) ITA. Alternatively judicial review in exceptional cases is also available. [24] Based on the above exposition relating to the workings of summary judgment in the context of section 106 of the Income Tax Act 1967, the Federal Court affirmatively held that the “issue or question which ought to S/N PERuIMZeGU2eP9C7vPaSQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 be tried or that there ought for some other reason to be a trial” rule as envisaged in Order 14 rule 3 has no application. [25] At para [173], Her Ladyship clarified that: … Pursuant to the 'Pay first, dispute later' scheme under the ITA, it follows that the recovery of the sum assessed at this stage is not final and the dispute will be heard by the SCIT and subsequently the Court under the 'Pay first, dispute later' system. [26] Her Ladyship went on to explicate the legal position as follows: [174] As we have reasoned, the claim for judgment by the Inland Revenue is premised on the characterisation of the sum assessed to be due as tax, under section 106(1) as a statutory 'debt'. This is for the purposes of recovery and execution only. The judgment obtained under section 106 is not a rights-determining judgment of finality. The taxpayer's right of challenge is not abrogated, as that right is preserved under as well as judicial review. [175] Therefore the 'some other reason' for a trial to be held under Order 14 does not apply as section 99(1) ITA a basis on which to enforce this statutory debt created by the taxing statute to enable payment to be made first, pending any challenge or dispute as to the sum assessed, which is effectively deferred under the statute. If it is found under the Order 14 procedure that the matter should go to trial it would render the method prescribed under the Act for adjudication, nugatory. The Act should be construed such that the various sections are harmonious and provide a coherent structure for income tax collection. S/N PERuIMZeGU2eP9C7vPaSQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 [176] Therefore the use of other 'some other reason for trial' should not be invoked. It is not tenable for a section 106 debt to be determined finally at trial, if the taxing statute also prescribes a specific manner of challenging the tax assessed, as is the case under the ITA. We have explained above in the body of the judgment that such a judgment does not enjoy the characteristics of a judgment issued after a full exercise of the Court's dispute resolution powers. It is a judgment handed down for the purposes of collection, i.e. to enable recovery first, while the dispute is deferred. It does not enjoy the rights-determining character of finality which is to be found in a judgment delivered after full adjudication in a court of law. [177] All challenges pertaining to those matters set out in section 106(3) or otherwise may be fully dealt with under the appeals portion of the ITA in Part VI, Section 2 which allows the taxpayer to ventilate all these issues. Further the remedy of judicial review in an appropriate case is also available. All this ensures that the taxpayer is accorded his 'fundamental liberties rights and powers in Article 5 and Article 121 '. [178] In short, a judgment granted under section 106 is treated as a civil judgment lawfully given in favour of the Inland Revenue for the purposes of collection and recovery only. [179] Enforcement may involve a writ of seizure and sale or garnishment of any amount due, and if the sum assessed is found to be erroneous after the merits of a dispute have been dealt with in full under the section 99(1) challenge, the over-assessed portion will be refunded to the taxpayer. With the latest amendments to the ITA, such a refund will carry interest (see: section 111D ITA). To that extent, the filing of civil proceedings in terms of section 106(1) is nothing more than an S/N PERuIMZeGU2eP9C7vPaSQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 enforcement mechanism and is distinct from a means of determining liability. [180] To this end, the DGIR and all authorised officers are designated as public officers to undertake proceedings under the section. This section provides support for the position that any proceedings instituted should be under section 106. [181] It should be borne in mind that the statute that allows for recovery of tax is the ITA, and not the Rules of Court 2012, more particularly Order 14. The latter provides a means of recovery of a disputed debt and envisages the determination of liability in full, either summarily or after a full trial if there is a 'triable' issue. Consequentially, it allows for a final judgment after determining liability between the parties. [182] The section 106 ITA recovery mechanism under the ITA does not require such a final judgment, as we have explained at length. [183] Accordingly, it is the remedy prescribed by statute that must prevail, not the procedure to recover a debt under the Rules of Court 2012. Therefore the statute should be accorded effect by allowing for the recovery or enforcement process under section 106 ITA to be followed. [27] It is evident that the law heavily favours the Plaintiff and the reason is due primarily to policy considerations that are beyond the powers of this Court. [28] The contentions raised by the Defendants in paragraphs [17] to [19] above are of no assistance to them in the present application. S/N PERuIMZeGU2eP9C7vPaSQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 [29] Nonetheless, this Court would come in aid of the Defendant if it can be shown that, for example, the Plaintiff had failed to serve the Notice of Assessment on the Defendant in accordance with section 145 of the Income Tax Act 1976. [30] In this regard, one question which was of concern to this Court was whether the defendant had been served with a Notice of Assessment? [31] The answer is in the affirmative as this has been admitted by the defendant. [32] As noted, the Defendants are not without recourse. For the Defendants, they should look to the Special Commissioner of Income Tax. [33] On the point raised by the First Defendant in paragraph [18] above that it had filed appeals in Borang Q on 23 September, 2020 and 16 October, 2020, the Plaintiff’s records show that the appeal has been withdrawn by the First Defendant on 21 May, 2021. [34] As pertinently decided and explained by the Federal Court in Mohd Najib Hj Abd Razak v Government of Malaysia, section 106(3) of the Income Tax Act 1967 is constitutional and does not have the effect of usurping judicial power. [35] The Federal Court made clear that any defences, if raised, are to be the subject matter of full ventilation before the Special Commissioner of Income Tax and after that, the High Court on points of law. S/N PERuIMZeGU2eP9C7vPaSQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 [36] The Federal Court further notes that as a judgment such as the one here does not finally dispose of or determine the rights and entitlements of a taxpayer, the taxpayer is not prejudiced. [37] Be that as it may, the taxpayer is required to make the payment, or arrange for payment to be made in instalments or to reach an agreement with the Director General of Inland Revenue on the settlement of the tax due, pending a full adjudication of the matter. [38] The application by the Plaintiff in Enclosure 12 is allowed with costs of RM10,000. Dated: 11 November, 2023 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam Counsel: Rohaizan Jumat with Nurul Aznelia Abu Bakar for the Plaintiff (Lembaga Hasil Dalam Negeri (LHDN) Malaysia) Mohamad Izwan Abd Rahman for the Defendant (Messrs. Faizan & Co.) S/N PERuIMZeGU2eP9C7vPaSQ **Note : Serial number will be used to verify the originality of this document via eFILING portal

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